Ratanlal_&_dhirajlal__law_of_evidence,_updat2018-11-19_04-29.doc

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Ratanlal & Dhirajlal: Law of Evidence, Updated 23rd Edition/THE INDIAN EVIDENCE ACT (ACT 1 OF 1872)/PART II ON PROOF/CHAPTER III FACTS WHICH NEED NOT BE PROVED/S. 56.

CHAPTER III FACTS WHICH NEED NOT BE PROVED S. 56. Fact judicially noticeable need not be proved. No fact of which the Court will take judicial notice need be proved. 1 For Statement of Objects and Reason, see Gaz. of India, 1868, p. 1574.

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Ratanlal & Dhirajlal: Law of Evidence, Updated 23rd Edition/THE INDIAN EVIDENCE ACT (ACT 1 OF 1872)/PART II ON PROOF/CHAPTER III FACTS WHICH NEED NOT BE PROVED/S. 57.

CHAPTER III FACTS WHICH NEED NOT BE PROVED S. 57. Facts of which Court must take judicial notice. The Court shall take judicial notice of the following facts:-1)  All laws in force in the territory of India; 1)  All public Acts passed or hereafter to be passed by Parliament of the United Kingdom, and all local and personal Act s directed by Parliament of the United Kingdom to be judicially noticed; 1)  Articles of War for the Indian Army, Navy or Air Force; 1)  The course of proceedings of Parliament of the United Kingdom, of the Constituent Assembly of India, of Parliament and of the Legislatures established under any laws for the time being in force in a Province or in the State; 1)  The accession and the sign manual of the Sovereign for the time being of the United Kingdom of Great Britain and Ireland; 1)  All seals of which English Courts take judicial notice: the seals of all the Courts in India, and of all Courts out of India established by the authority of the Central Government or the Crown Representative: the seals of Courts of Admiralty and Maritime Jurisdiction and of Notaries Public, and all seals which any person is authorised to use by the Constitution or an Act of Parliament of the United Kingdom or an Act or Regulation having the force of law in India; 1)  The accession to office, names, titles, functions and signatures of the persons filling for the time being any public office in any State if the fact of their appointment to such office is notified in any official Gazette; 1)  The existence, title, and national flag of every State or Sovereign recognised by the Government of India; 1)  The divisions of time, the geographical divisions of the world, and public festivals, fasts and holidays notified in the official Gazette; 10)  The territories under the dominion of the Government of India; 11)  The commencement, continuance and termination of hostilities between the Government of India and any other State or body of persons: 12)  The names of the members and officers of the Court, and of their deputies and subordinate officers and assistants, and also of all officers acting in execution of its process, and of all advocates, attorneys, proctors,vakils, pleaders and other persons authorized by law to appear or act before it; 13)  The rule of the road on land or at sea. In all these cases, and also on all matters of public history, literature, science or art, the Court may resort for its aid to appropriate books or documents of reference. If the Court is called upon by any person to take judicial notice of any fact, it may refuse to do so unless and until such person produces any such book or document as it may consider necessary to enable it to do so.

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1. PRINCIPLE AND SCOPE Part I of the Act deals with what facts may, and what facts may not, be proved in a civil or criminal case. Part II deals with the question of what sort of evidence must be given of a fact which has to be proved. Part-III shows the manner in which a fact in issue or relevant fact must be proved. All facts in issue and relevant facts must be proved by evidence, either oral or documentary. To this rule there are two exceptions; (a) facts judicially noticeable; and (b) facts admitted. Section 56 states that a fact judicially noticeable need not be proved, whereas Section 57 enumerates in clauses 1 to 13, the facts which have to be judicially noticed and which need not be proved. The penultimate paragraph in Section 57 states that in all the cases enumerated in clauses 1 to 13, and on matters of public history, literature, science or art, the Court may resort, for its aid, to appropriate books or documents of reference. The last paragraph of Section 57 states that it may refuse to take judicial notice of any fact, even if a person calls upon the court to do so, until such person produces may such book or document as it may consider necessary to enable it to take judicial notice. In the cases of the facts dealt with by these sections, the Judge's belief in their existence is induced by the general knowledge acquired, otherwise than in particular proceedings before the Court and independently of the action of the parties therein. The meaning of the section will, however, be apparent, if we consider together with this section the last words of Section 57. What these two provisions really come to this. With regard to the facts enumerated in Section 57, if their existence comes into question, the parties who assert their existence, or the contrary, need not, in the first instance, produce any evidence, in support of their assertions. They need only ask the Judge to say whether these facts exist or not, and if the Judge's own knowledge will not help him, then he must look the matter up; further, the judge can, if he thinks proper, call upon the parties to assist him. But, in making this investigation, the Judge is emancipated entirely from all the rules of evidence laid down for the investigation of facts in general. He may resort to any source of information which he finds handy and which he thinks will help him. Thus he may consult any book or obtain information from a bystander. (MARKBY 49). If a fact stands admitted, the same in terms of Section 56 of the Evidence Act need not be proved. 1 1 District Basic Education Officer v. Dhananjai Kumar Shukla, (2008) 3 SCC 481, 483-84 (para 14).

2. TAKE JUDICIAL NOTICE This expression means recognition, without proof, of something as existing, or as being true. Judicial notice is based upon the very obvious reasons of convenience and expediency; and the wisdom of dispensing with proof of matters within the common knowledge of every one has never been questioned. The expression "taking the judicial notice of law" means that the court is duty bound to find out the law and apply it to the facts of the case, even though the parties or their counsel fail to produce such law. 2 "Judicial notice is the cognisance taken by the Court itself of certain matters which are so notorious, or clearly established, that evidence of their existence is deemed unnecessary. (STEPHEN, in the first two editions of the Digest, described these as "facts which need not be proved," but in later editions calls them "facts proved otherwise than by evidence.")3 2 Mazhar Ali v. Hakimuddin, AIR 1965 Pat 489; Shyamlal v. Munnilal, AIR 1972 Punj 199. 3 PHIPSON ON EVIDENCE, 15th Edn. (2000), page 5 (para 1-11).

3. "ALL LAWS IN FORCE IN THE TERRITORY OF INDIA" [CLAUSES (1)]

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Under this clause the court is bound to take judicial notice of all laws in force in the territory of India. The expression "All laws in force in the territory of India" has not been defined in the Evidence Act, or in the General Clauses Act , 1897; however, the expression "Indian Law" is defined in Section 3(29) of the General Clauses Act , 1897, as follows:--"Indian Law" shall mean anyAct, Ordinance, Regulation, Rule, Order or Bye-law which, before the commencement of the Constitution, had the force of law, in any Province of India or part thereof, and thereafter has the force of law in any Part A State or Part C State or Part thereof, but does not include any Act of Parliament of the United Kingdom or any Order in Council, Rule or other Instrument made under such Act". Article 13(1)(a) of the Constitution defines 'Law' as including "any Ordinance, Order, Bye-law, Rule, Regulation, Notification, Custom or Usage having, in the territory of India, the force of Law". The term 'existing law' has been defined in Art. 336(10) of the Constitution thus: "Existing Law" means any Law, Ordinance, Order, Bye-Law, Rule or Regulation, passed or made before the commencement of this Constitution by any Legislature, Authority of person having power to make such Law, Ordinance, Order, Bye-Law, Rule or Regulation". It is pertinent to note that Art. 372 of the Constitution speaks of the continuance of "all the laws in force in the territory of India". It was held by the Supreme Court that there is no material difference between an 'Existing Law' as defined in Art. 366(10) and "a law in force"; that the words "law in force, as used in Art. 372, are wide enough to include not merely a legislative enactment but also any regulation or order which has the force of law; that an order must be a legislative one and not an executive order before it can come within the definition of law.4 Order of the Governor General u/s. 94(3) of the Government of India Act 1935. 5 In HALSBURY'S Law of England (4th Edn., Vol. 17, para 100, page 73) it is stated: "They (the judges) are also bound to take notice of all Public Acts of Parliament, and of all Act s of Parliament whatever passed since the year 1850, unless the contrary is expressly provided in the Act in question. Government orders and statutory instruments are not judicially noticed unless, as is common, provision is made for them to be so noticed". The Court should take judicial notice of the Act s of the Parliament.6 Under our legal system and jurisprudence based on the Constitution, "law" is not limited to legislative enactments; all forms of delegated legislative power and all orders and notifications made and issued under statutory powers which are legislative in nature, amount to law, and judicial notice can be taken of them. A statutory order or notification will be legislative in nature if, in substance, it adds to, supplements, modifies or amends a statute, or exempts certain matters from its operation; that rules, regulations, notifications and orders, made or issued in the exercise of legislative power, must be distinguished from the instruments bearing similar names but made in exercise of executive power. An order or notification, made or issued in exercise of non-statutory power, or in exercise of statutory power which is purely executive in nature will have no legislative content and will not amount to "law". 7 Relying on notification under 71(1) of Telegraph Wires (unlawful possession of Act). 8 The Bombay High Court has held that, in the absence of the authenticated copies of Bare Act s, legislations, rules and other statutory instruments having the force of law, the citizens cannot be expected to know the law and it would be difficult for the Courts to act upon the mandate of the Section 57(1) and 78. Appropriate directions were issued to the State and Union Governments and other authorities.9 Notification.--A notification issued under a specific provision in an Act of the legislature has the force of law as if made by the legislature itself.10 Notification issued by the President of India under Art. 258 of the Constitution, entrusting the functions of the Central Government, under the Land Acquisition Act 1894, to the Commissioners of Divisions in the State of Bombay, amounts the law.11 Similarly, a notification issued under Section 139 of the Bombay Prohibition Act, authorising the Government to exempt certain intoxicants has "the force of law as if made by the legislature itself". 12

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A notification under Section 27 of the Bihar and Orissa Excise Act of 1915, imposing a countervailing duty on foreign liquor was held to be "existing law" within the meaning of Article 305 of the Constitution.13 It was held that the notification under Section 4 of the U.P. Sales-tax Act, 1948, authorising the Government to exempt certain kinds of transactions from Sales-tax, had the force of law. 14 A notification issued by the Government, fixing prices, is in the nature of a legislative measure. 15 So are the Bye-laws formed by Market Committee u/s. 19 of Madras Commercial Crops Markets Act in exercise delegated power.16Orders relating to delimitation of constituencies amount to law, after the publication of the orders.17 Judicial notice can be taken of the fact of different municipalities levying on varying basis, some on the weight of the material and others on ad valorem basis, on the prices of goods.18Judicial notice has to be taken of the notifications published in the gazettee relating to acquisition of intermediary estates under Section 4 of the West Bengal Estates Acquisition Act . 19State of the law prevailing at the time of passing of a provision can be taken note of by the courts while interpreting the expression "Charitable purpose".20 The expression "delegated legislation" includes even the so called "conditional legislation", for it has also the content, however small and restricted, of the law making power itself. 21 The following are some instances of notifications or rules of which judicial notice was taken: 1i)  The Army regulations and ordinances issued by the Government of India. 22 1ii)  Notification of the appointment of a Drug Inspector under Section 21, Clause (1) of the Drugs Act of 1940.23 1iii)  A rule made under rule 225 of Printing Manual published by the Government of Madras providing for return of old and obsolete stamps to Government Press on receipt of new ones.24 1iv)  A notification issued by the Government, declaring Malas to be socially and educationally backward class.25 1v)  Rules of business, made under Art. 166(3) of the Constitution, or Statutory Rules, and certified copies thereof.26 1vi)  Notification under the Prevention of Food Adulteration Act , issued by the Government, empowering the Municipal Commissioner to act as a Local Health Authority.27 1vii)  A notification issued under Section 11(b) and 123(2) of the Customs Act. 28 1viii)  A notification relating to the orders of the Ruler of Gwalior State, published in various issues of the Government Gazette.29 1ix)  Kalambandis of the erstwhile Gwalior State were in the nature of orders or regulations, having the force of law, and were continued under Art. 372 of the Constitution.30 The Court can take judicial notice of gazette notification under U.P.Z.A. and L.R. Act, 1950 (1 of 1951) for coming to conclusion that all lands including suit land which had vested in the State of U.P. stood transferred to the Town Area Committee.31 4 Edward Mills Co. Ltd. v. State of Ajmer, 1955 SCR 735 at 746 : AIR 1955 SC 25. 5 State v. Gopal Singh, AIR 1956 MB 138(FB) ; Shamlal v. Munnilal, AIR 1972 Punj 199; State v. Ramchandran, AIR 1977 MP 68(FB) ; approving State v. Gopal Singh, AIR 1956 MB 138(FB) ; State v. Gopalchand, AIR 1957 MP 145; and overruling Mathura v. State, AIR 1954 Nag 296; Mazhar v. Hakimuddin, AIR 1965 Pat 489. 6 Nityanand Sharma v. State of Bihar, AIR 1996 SC 2306 (para 18). 7 State of M.P. v. Ramchandran, AIR 1977 MP 68(FB) . 8 Lachmi Narain v. Union of India, AIR 1976 SC 714; Edward Mills Co. Ltd. v. State of Ajmer, AIR 1955 SC 25; Madhaorao v. State of M.B., AIR 1961 SC 298; Jayantilal Amaratlal v. F.N. Rana, AIR 1964 SC 648; Kailash Nath v.

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State of U.P., AIR 1957 SC 790; Saraswati Industrial Syndicate Ltd. v. Union of India, AIR 1975 SC 460, Overruling Mathuradas v. State, AIR 1954 Nag 296; State Bank of Travancore v. K. Vinayachandran, AIR 1989 Ker 302; State of H.P. v. Nilam Das, AIR 1952 HP 74. 9 Sanjeev M. Gorwadkar v. State of Maharashtra, AIR 1997 Bom 303. 10 State of Bombay v. F.N. Balasara, AIR 1951 SC 318; State v. V.P. Enadeen, AIR 1971 Ker 193(FB) ; State of M.B. v. Gopalsingh, AIR 1956 MB 138(FB) ; overruling Pannalal v. State, AIR 1953 MB 84; Secy. Malabar Market Committee v. A.V. Bapputty, (1962) 2 CrLJ 549(Ker) . 11 Jayantilal Amaratlal v. F.N. Rana, AIR 1964 SC 648. 12 State of Bombay v. F.N. Balsara, AIR 1951 SC 318. 13 Kalyani Stores v. State of Orissa, AIR 1966 SC 1686. 14 Kailash Nath v. State of U.P., AIR 1957 SC 790. 15 Saraswathi Industrial Syndicate Ltd. v. Union of India, AIR 1975 SC 460. 16 Public Prosecutor v. Illur Thippayya, AIR 1949 Mad 469; Tek Chand v. Firm Amarnath Basheshardas, AIR 1972 Punj 46. 17 Meghraj v. Delimitation Commission, AIR 1967 SC 669. 18 Municipal Board of Abu Road v. Jaishiv, AIR 1988 SC 338. 19 Union of India v. Nihar Kanta Sen, AIR 1987 SC 1713. 20 Addl. Commer. of I.T., Gujrat v. Surat Art Silk Cloth Manufacturers Association, AIR 1980 SC 387. 21 Lachmi Narain v. Union of India, AIR 1976 SC 714. 22 Union of India v. Govindraj, 1962 Mys LJ 254(Supp) ; Dhanpat v. State of U.P., AIR 1960 All 40. 23 Ramlagan Singh v. State of Bihar, AIR 1960 Pat 243. 24 1969 Mad LW 68(Cri) . 25 Chaitram v. Sikinder Choudhary, AIR 1968 Pat 337. 26 Management of the Advance Insurance Co. Ltd. v. Gurudasmal, Supdt. of Police, AIR 1969 Del 330. 27 Food Inspector v. V. Velayudhan, 1987 CrLJ 1137; See also State of Kerala v. V.P. Enaden, AIR 1971 Ker 193(FB) ; Jamshedpur Notified Area Committee v. C.L. Mahton, AIR 1965 Pat 176; Abdulla Haji v. Food Inspector, (1967) 2 CrLJ 1719(FB) (Ker); Food Inspector Calicut v. Velayudhan, 1980 Ker LT 138 : 1980 Mad LJ 505(Cri) . 28 S. Nagarajan v. Vasanthakumar, 1988 CrLJ 1217(Ker) . 29 Ramji Raja (Smt.) v. Puncham Singh, AIR 1959 MP 269. 30 Madhaorao Phalke v. State of M.B., (1961) 1 SCR 957AIR 1961 SC 298. 31 U.P. Sunni Central Board of Waqf, Lucknow v. Town Area Committee, Sahapur, AIR 2009 (NOC) 1876(All) : 2009 (3) ALJ 530.

4. CUSTOMARY LAW In HALSBURYS LAWS OF ENGLAND (4th Edn., Vol. 17, Para 101, Page 74) it is observed: "The court will take judicial notice of usages which are embodied in the law merchant, and of commercial and other usages which have been proved sufficiently often in the courts of law". The Privy Council held that when a custom or usage, whether in regard to a tenure or contract, or a family right, is repeatedly brought to the notice of the Court, of a country, the Court may hold that custom or usage to be introduced into the law without the necessity of proof in each individual case. It was observed: "Material customs must be proved in the first instance by calling witnesses acquainted

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with them, until the particular custom has, by frequent proof in the Courts, become so notorious that the Courts take judicial notice of them."32 Before a custom can be said to have been proved only on the basis of earlier decision, those decisions must have been based on evidence adduced in the respective cases. That a community is a small one, found within a small local area and the cases that may be brought to the Courts may not be many, is no ground for ignoring this principle.33 The ordinary rule is that all customs, general or otherwise, have to be proved. But, when a custom has been repeatedly recognized by the Courts, it passes into the law of the land and the proof of it then becomes unnecessary, under Section 57(1) of the Act. In Punjab, the expression "general custom" has really been used in this sense, namely, that the custom has by repeated recognition by the Courts become entitled to judicial notice.34 Collaterals succeed in non-ancestral property. 35 The Muslim Law of pre-emption has long been judicially recognised, as existing among the Hindus in Bihar State.36 Regarding the custom of succession in Punjab, the right of an unmarried daughter in preference to the mother's right to her deceased son's property, as per para 23 of RATTIGAN'S DIGEST, was recognised by the Supreme Court. Similarly, the daughters are entitled to succeed the property of their father, and their mother is not so entitled.37 The customary right of an illegitimate son for maintenance in an impartible estate has been taken judicial notice of.38 When custom is recognised by Courts, it would form part of the law of the land. A right to drain off the surplus water through a particular vent or channel is in the nature of a customary right and judicial notice can be taken and proof of it need not be given. 39 The Courts can take judicial notice of customary right of privacy prevailing in U.P. and Oudh; however, it was held that the party who pleads the custom of privacy should lead evidence to show that it is generally prevalent and commonly recognised in Kutch. 40 A report made by an officer, containing customary law applicable to a particular community, is admissible in evidence.41 32 Effuah Amissan v. Effuah Krabah, AIR 1936 PC 147. See also Salekh Chand v. Satya Gupta, (2008) 13 SCC 119, 130 (para 23). 33 Kaliamma v. Janardhan, AIR 1973 SC 1134, 1138 (para 10) : (1973) 1 SCC 644 affirming AIR 1968 Mad 105. 34 Ujagar Singh v. Jeo, AIR 1959 SC 1041, relying on Abdul Hussain Khan v. Mrs. Bibi Sona Dero, AIR 1917 PC 181; Gangadhara v. Suryarao, ILR 41 Mad 778(PC) ; Bawa v. Tharo, AIR 1951 Simla 239; Sukhwant v. Balwant, AIR 1951 Punj 242; Jangir Singh v. Sucha Singh, (1971) 2 Punj 133. Also see Gurubasawwa v. Irawwa, AIR 1997 Kant 87; Ass Kaur v. Kartar Singh, (2007) 5 SCC 561, 569 (paras 18 and 19). 35 Hemraj v. Mathra Das, AIR 1952 Punj 177. 36 Jadulal Sahu v. Janki Koer, ILR 39 Cal 915(PC) . 37 Harchand Sing v. Mohinder Kaur, AIR 1987 P&H 138. 38 Chelladorai v. Varagunarama Pandiya; Chinathambiar, AIR 1961 Mad 42. 39 Kasi Vishwehwara Venkata Sastrulu v. Satyanarayana Murthy, (1964) 2 An WR 39. 40 Nihal v. Bhagwan, AIR 1935 All 1002; Baqridi v. Rahim Bux, AIR 1926 Oudh 352; Gokul v. Radho, (1888) 10 All 358; Syed Habib v. Kamal Chand, AIR 1969 Raj 31; (custom in Rajasthan) Jivraj v. Keshavji, AIR 1952 Kutch 22. 41 Tula Ram Sah v. Shyam Lal Sah, (1924) 49 All 848 : AIR 1925 All 648.

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5. PERSONAL LAW [CLAUSE (2)] For ascertaining the personal law of the Hindus the method adopted is by reference to an authoritative text and judicial decisions. Previously, the opinion of pandits also used to be taken, but later, it was held by the Privy Council, in Musjid Sahidganj v. Gurudwar, 42that the opinion of the Pandit is not now admissible. In Collector of Madurai v. Muthuramalings, 43judicial notice was taken of the customs of different schools in respect of the law of adoption, by referring to sworn translation of Sanskrit works embodying Hindu Law. The court is bound to take judicial notice under Section 57(1) of the Evidence Act, of Mohammedan Ecclesiastical Law.44 However, it was held that the parties setting up a custome under Muslim Law have to prove it when such a custom is pleaded.45 The court can take judicial notice of the fact that: 1a)  Islam is an accepted religion of a large number of citizens in India and outside India. 1b)  Koran is the basis religious text or scripture of Islam. 1c)  The followers of Islam believe that Koran is of divine origin, being relation made by God to Muhammed, the Prophet of Islam. 1d)  The Koran is considered to be Holy Book by the followers of Islam. 46 42 1940 PC 16. 43 1940 PC 16. 44 R. v. Ram Zan, (1885) 7 All 461. 45 Gani Dar v. Raji, AIR 1961 J&K 31. 46 Chandmal Chopra v. State of W.B., 1988 CrLJ 739.

6. ARTICLES OF WAR [CLAUSE (3)] Courts would take judicial notice of the Articles of War contained in the Indian Army Act 46 of 1950, the Indian Navy Act 34 of 1934 reads with Act 29 and 300 Victoria C 109 and the Air Force Act 45 of 1950.

7. LEGISLATIVE PROCEEDINGS [CLAUSE (4)] The Courts are bound to take judicial notice of the prorogation of the Parliament and Legislatures and presume the regularity of those act ions.47A proclamation of emergency, approved by the resolution of both Houses of Parliament can be taken note of judicially; its publication in the Parliament debates is sufficient, and there is no necessity for its publication in the official gazette. 48Judicial notice has to be taken of such matters as the reports of the Parliament Committee and of such other facts as must be assumed to have been within the contemplation of the Legislature when an Act was passed, and it is legitimate to look at the state of law prevailing at the time of passing of any provision. 49 The Court takes judicial notice of the law and customs of Parliament, the existence and extent. It is observed: "Courts will take judicial notice of the following signatures; the royal sign manual, and the signatures of the principal Secretaries of State; those of the judges of the superior Courts to any judicial or official document, of the judges and registrars exercising bankruptcy jurisdiction, and of persons before whom depositions are taken.

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Notice will also be taken of the signatures of certain persons in respect of the winding up of companies, of the signatures of persons empowered to administer oath or do notorial act s abroad, and of signatures on various public and official documents. In addition, many particular documents are admissible in evidence without proof of the authenticity of the signature they bear." Under this clause the Court is bound to take judicial notice of the name and signature of the District Magistrate, and there is no need for the prosecution to prove the same if it is contained in the order of sanction to prosecute a person.50 The signature of an officer to a document showing that some of the officers under him are conferred certain powers privileges of each House of Parliament and the order and course of the proceedings therein and the clearly established privileges of the Crown, e.g., the privileges in relation to the Royal Palaces. (Halsburys' Laws of England 4th Edn., Vol. 17, page 73, para 100). The debates in Parliament or the Legislative Councils are only evidence of what was stated by the speakers therein and are not evidence of the facts contained in the speeches. 51 47 State of Punjab v. Satyapal Dang, AIR 1969 SC 903 : (1969) 1 SCR 478. 48 Baburao Alias D.P. Samant v. Union of India, AIR 1988 SC 440; Swadeshi Cotton Mills v. Sales-tax Officer, AIR 1965 All 86. 49 Additional Commr. of Income-tax v. Surat Art Silk Manufacturing Association, AIR 1980 SC 387. 50 State of Pepsu v. Gurudevsingh Harnamsingh, AIR 1956 Pepsu 11; Dhanpat v. State of U.P., AIR 1960 All 40; Gayadin v. State of U.P., AIR 1958 All 39; State v. Janjgir Singh, AIR 1954 Pepsu 84; Raghbir Singh v. State of Haryana, (1968) 70 Punj LR 318; Kaliprasad Upadhya v. Emperor, AIR 1954 Pat 59 : 23 Pat 475 (signatures of secretary to the Government) In re : Cholancheri Ayammal,AIR 1923 Mad 600 : 24 CrLJ 403; Abdul Rahman v. State of Mysore, 1972 CrLJ 406; (Signature of Collector of customs). 51 Strickland v. Bannia, AIR 1935 PC 34.

8. CLAUSE (5) AND FIRST PART OF CLAUSE (6) These relate to the pre-independence period of the country.

9. SEALS [CLAUSE (6)] A power of attorney given under the seal of a notary public comes within Section 57(6) for taking judicial notice.52 The expression "notary public" includes notary public of foreign countries also. 53 A notification under Section 14 of the Notaries Act is not essential, and a presumption can be drawn regarding the genuineness of the seal of the notary public in the foreign country, though it is rebuttable.54 52 Performing R. Society Ltd. v. I.M.P. Restaurant, AIR 1939 Bom 347. 53 Jugraj v. Jaswant, AIR 1971 SC 761; National & Grindlay's Bank v. World Science News, AIR 1976 Del 263; Rajesh Wadhwa v. Dr. Sushma Govil, AIR 1989 Del 144; (sealed by the notary public in U.S.A.). 54 Rajesh Wadhwa v. Dr. Sushma Govil, AIR 1989 Delhi 144 supra.

10. ACCESSION TO OFFICE ETC. [CLAUSE (7)] In HALSBURY'S LAW OF ENGLAND (4th Edn., Vol. 17, para 110, can be taken judicial notice of [matters stated in this Cl. (7)].55

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Judicial notice shall be taken of the endorsement of sub-registrar about the execution of the documents, and his signature.56Judicial notice of the signatures of the Secretaries to the Government on any instrument can be taken, under this clause. 57A true copy of a gazette notification can be received in evidence of the other party does not object to its admissibility as secondary evidence. 58 55 Abdul Rahman v. State of Mysore, 1972 Cr. LJ 406; (Collector of customs under the Customs Act ). 56 Radha Mohun Dutt v. Nripendranath Nandy, AIR 1928 Cal 154. 57 Kali Prasad Upadhya v. King-Emperor, AIR 1945 Pat 59 : (1944) 23 Pat 475. 58 State v. Y.P. Enadeen, AIR 1971 Ker 193 FB.

11. EXISTENCE AND TITLE OF STATE [CLAUSE (8)] All Courts must take judicial notice of the existence and title of every State or Sovereign recognised by the Government of India. Section 84(2) of C.P.C. 1908 states: "The Court shall take judicial notice of the fact that a foreign State has or has not been recognised by the Central Government." 59 59 See Triccam Panachand v. Bombay-Baroda & Central Railway, (1885) 9 Bom 244; Mighell v. Sultan of Jahore, (1894) 1 QBD 149.

12. DIVISION OF TIME, WORLD GEOGRAPHICAL DIVISIONS AND PUBLIC FESTIVALS ETC. [CLAUSE (9)] In HALSBURY'S LAWS OF ENGLAND (4th Edn. Vol. 17, para 104, page 76) it is observed: "The almanac is established by statute, and was previously recognised by the common law. The Court will take judicial notice of the succession of years, months and days, of the years of each soverign's reign and the years in the calendar to which they correspond, and of the days of the week upon which the days in the calender fall. An expression of time in any Act of Parliament, deed or other legal instrument means Greenwich meantime, unless otherwise specifically stated, but judicial notice is taken, if necessary, of the fact that a place lies east or west of Greenwich, and therefore has a time different from Greenwich time, although not of the times at which the sun rises and sets." The phrase 'divisions of time' includes also Indian eras. Thus Samvat, Saka, Hindi Bengali, Hijari and Jalus eras, will be judicially noticed. The court is bound to take judicial notice of the holidays notified in the Official Gazette of any Local Government. In regard to a suit filed on the re-opening day after the vacation for the Courts, it was held that the Court has to take judicial notice of the public holidays notified in the gazette, according to Order 7, Rule 6, C.P.C., and the Court would not be justified in dismissing the suit, though the limitation had expired for filing the suit during the vacation for the courts. 60The gazetted holidays are to be excluded while computing the period of 30 days (one month) provided under Section 142(b) of the Negotiable Instruments Act (26 of 1881) to file a complaint in respect the offence committed under Section 138 of the said Act. In the instant case, the complaint was filed on 32nd day as earlier two days were gazetted holidays.61 It was held that the Court has to take judicial notice of corresponding dates of the Indian and Gregorian Calendars.62 Under Section 24 of the Limitation Act , all instruments should be deemed to be with reference to Gregorian Calendar. The court can take note of the fact that all polling days were declared as holidays, to enable the employers to allow their employees to exercise their franchise. 63

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60 Tekchand v. Palto, AIR 1920 Nag 200; Gyansingh v. Budha, AIR 1933 Lah 558; Ramjiraja v. Puncham Singh, AIR 1959 MP 269. 61 Minakshi Sharma v. Hitendra Kumar Sharma, AIR 2009 (NOC) 1820(Raj) . 62 Abdulla Shah v. Md. Yukub, 1938 Lah 558. 63 Inayathullah Khan v. Diwanchand Mahajan, AIR 1959 MB 58.

13. INDIAN TERRITORIES [CLAUSE (10)] Under Art. 1(2) and (3) of the Constitution, the territory of India shall consist of the territories of the States and the Union Territories specified in the First Schedule and such other territories as may be acquired. Under Art. 2, Parliament may by law admit into the Union or establish new States. The Indian Courts must take judicial notice of the territories of the dominion of the Government of India, and if there has been a cession of territory they must take notice of that and they must do so independently of the gazette, which is part of the Session but only evidence of the cession. 64The court can take judicial notice of the fact that by 19th December, 1961, the territories of Goa, Daman and Diu were completely liberated from colonial rule.65The Court can take note of whether a particular territory is part of India or not.66 64 Masihan Saheb v. Chief Commissioner, Pondicherry, AIR 1962 SC 797; Damodar v. Deoram, (1876) 1 Bom 367(PC) . 65 Cipriano Negredo v. Union of India, AIR 1969 Goa 76; Rev. Mons. Sebastlao Francisco Xavier dos Remedios Monteiro of Candolim v. State, AIR 1968 Goa 17. 66 Bhansali v. Union of India, AIR 1973 Raj 49.

14. HOSTILITIES WITH GOVT. OF INDIA [CLAUSE (11)] In HALSBURY'S LAWS OF ENGLAND (4th Edn., Vol. 17, para 106, page 78) it is stated: "Judicial notice will be taken of a state of war that exists or has existed between the United Kingdom and any other country; and, possibly, of a state of war existing between two foreign countries, where the fact is recognised by the British Government. Judicial notice may also be taken of the circumstances in which a war involving the United Kingdom is or was carried on, but not of the date of any particular operation or engagement". In HALSBURY'S LAW OF ENGLAND(4th Edn., Vol. 17, para 157, page 115) it is also observed: "Where the Court act s upon a certificate by the secretary of state as to the existence or non-existence of a state of war, or as to the sovereign status of a foreign power or individual, the proper view is that it is not receiving evidence, but is taking judicial notice". Section 57 (11) of the Evidence Act desires the court to take a judicial notice of the hostilities between the Govt. of India and any other State or body of persons. With the passage of time, the courts ought to take judicial notice of commencement and continuance of hostilities, which are at par with guerrilla war. In the light of Section 57(11), the Court would be in a position to take judicial notice of continuance of hostilities, although apparently unconnected with the hostilities especially referred to in the chargesheet of the accused.67 67 Adnan Bilal Mulla v. State through D.C.B., C.I.D., Mumbai, 2006 CrLJ 457(NOC) (Bom) : 2006 (5) AIR Bom R 386.

15. MEMBERS AND OFFICERS OF COURT [CLAUSE (12)] Under this clause, the court has to take judicial notice of the members and officers of the Court and of all advocates and attorneys who are authorised by law to appear before the Court. Under the

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Advocates Act 25 of 1961, legal practitioners have to get themselves enrolled in the High Court before they are allowed to practice. Judicial notice was taken of the fact that in 1966-67 there had been for the District of 24 Paraganas in West Bengal a Public Prosecutor appointed generally. 68 68 Raj Kishore Rabidas v. State of W.B., AIR 1969 Cal 321.

16. RULE OF THE ROAD AND MATTERS OF PUBLIC HISTORY [CLAUSE (13)] (a) 'The rule of the road on land or at sea'.--This means the rule that horses and vehicles of all description should keep to the left side of the road. At sea, the rule is that ships and steam-boats, on meeting, should port their helms, so as to pass on the port or left side of each other; steam-boats should keep out of the way of sailing ships; and every vessel overtaking another should keep out of its way. The Court can take note of what act ually happens when 'bundh' is called out.69 (b) Matters of public history etc.--On all matters of public history, literature, science, or art, the court may resort for its aid to appropriate books or documents of reference. Thus ancient facts of public nature and published works of history can be relied upon for finding the meaning of a "math".70 The question whether a particular village was granted to a particular person by a former ruler is not a matter of public history within the meaning of this section. 71 The section does not appear to have the effect of absolving the parties from any rules governing the proof of facts on which they deserve to rely. This section does not say how any fact, historical or otherwise, is to be proved by the parties, but gives the Court plenty to resort for its aid the appropriate books or documents of reference on matters of public history. 72 Sources of common knowledge may be obtained by reference to Encyclopaedia, and the list of text books given therein, but details obtained from such sources require usually to be established by experts.73 Dictionaries may be referred, to ascertain the meaning of the words. 74 The Courts can refer to articles in journals and books by authors acquainted with the expert matter of such articles, though they are living.75 The Court is entitled to refer to authoritative works for meaning of names and terms used in a particular religion, and dealing with the history and beliefs of that religion. 76 There are innumerable instances where courts have referred to books and documents. A few examples of some of the books referred to by Courts are given below:-'WILSON'SGlossary'.77 "Castes and Tribes of Southern India" by THURSTON.78 RUSSELL'SCastes and Tribes and the Report of 1931 Census Vol. 20.79History of 'Hydraulic Stowing in India' by N. BARRACLOUGH.80 Under the last paragraph, the Court is given the discretion to refuse to take judicial notice of any fact, unless the person calling upon the Court to take judicial notice of such facts produces such book or document as may be necessary to enable it to do so.81 69 Bharat Kumar K. Palicha v. State (FB), AIR 1997 Ker 291. 70 Swami Harbans Chari Ji v. M.P., AIR 1981 MP 82. 71 Kishanlal v. Sohanlal, (1955) 5 Raj 191 : AIR 1955 Raj 45.

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72 Englishman Ltd. v. Lajpat Rai, (1910) 37 Cal 760. 73 United States Shipping Board v. The Ship St. Albans' AIR 1931 PC 189. 74 The Coca-Cola Co. of Canada Ltd. v. Pepsi Cola Co. of Canada Ltd., AIR 1942 PC 40. 75 Madho Singh v. State of Bihar, AIR 1978 Pat 172(FB) . 76 Sardar Dayal Singh v. Tulasidar Tarachand, AIR 1945 Sindh 177. 77 Thakooranee Dassi v. Bisheshur, 3 WR 29(FB) . 78 Subramanya Chettiar v. Kumarappa Chettiar, AIR 1955 Mad 144. 79 Nathulal Salikram v. Rangoba Narbad, AIR 1952 Nag 133; Mahadeo Dewanna v. Vyan Kamma Bai, AIR 1948 Nag 287; Meji Jijibai v. Tabu, AIR 1933 Nag 274; Dshwari Prasad v. Raj Hari Prasadrai, AIR 1927 Pat 145. 80 Nimcha Coal Company Ltd. v. Sriniwas Goenka, (1968) 2 Cal 402. 81 Public Prosecutor v. Thippayya, ILR 1949 Mad 371 : AIR 1949 Mad 459.

17. NOT EXHAUSTIVE The list of facts mentioned in the Section 57, of which the Court can take judicial notice, is not exhaustive. Indeed, the purpose of the section is to provide that the Court shall take judicial notice of certain facts, rather than exhaust the category of facts of which the Court may, in appropriate cases, take judicial notice. Recognition of facts, without formal proof, is a matter of expediency, and no one has ever questioned the need and vision of accepting the existence of matters which are unquestionably within public knowledge.82 STEPHEN in his DIGEST (7th Ed., Notes to XXVI to Article 58 at p. 179) has observed: "It may be doubted whether an absolutely complete list could be framed, as it is practically impossible to enumerate everything which is so notorious in itself, or so distinctly recorded by public authority that it would be sperfluous to prove it". The following are some instances where the court took judicial notice of facts which do not fall within clauses 1 to 13:-The Supreme Court held that the court can take judicial notice of the fact that many of the industrial workers are illiterate; hence, where a previously prepared signed statement of a witness was read over to the workmen and they were asked to cross-examine the witness then and there, it amounted to noncompliance with the rules of natural justice.83 Judicial notice can be taken of the low expectation of life of hill tribes. 84 The Court can take judicial notice about: Communal disturbances or other disturbances in the country.85 Communal disturbances in 1947 after partition of India. 86 Explosive ferment of mounting hatred on both sides of Radcliffe line--in 1947. 87 Disturbances in Andhra Province after death of Potti Sriramulu in connection with formation of Andhra Province.88 Government of India's white paper on Punjab Agitation. 89Disturbances in August 1942.90 Judicial notice should be taken of the fact that, after the partition, entry of any citizen of India into the territory now in Pakistan, is regulated by permits and visas, and of the fact that cash or produce could not be taken from one Dominion to another without insurmountable difficulties. 91 Judicial notice was taken of the fact that the war with Pakistan started in June 1965. 92

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The Court can take judicial notice of the prices of commodities, general level of wages, and the appointment of Wage Board.1 In a case claiming adequate escalation in pension by the erstwhile Burma Shell Staff Pensioners, the Supreme Court, held that when the Burma Shell, which was having a pension fund, was taken over by the Government and when other similar companies having no fund granted a steep escalation of pension the court can take judicial notice of the loss of purchasing power of a rupee and whether the pensioners would be entitled to a hike in pension.2The Court can take judicial notice of the fact of inflation resulting in fall in purchasing power of money and consequent rising of cost of commodities for enhancing maintenance allowance.3 Court can take judicial notice of the enormous increase of the rents of buildings throughout the country, particularly in urban areas.4 The Court can take judicial notice of the fact that many a time prescribed registers are not available and so they are kept in non-prescribed way and many a time even a case diary is not maintained in the prescribed form.5 Courts were justified in assuming, without formal evidence, that a railway strike was imminent on a particular day, and that a strike paralysing the civil life of the Nation was undertaken by a section of workers on another date.6 Court can take judicial notice of different ages of retirement in several services in the country. 7 Late fee is generally charged from members who use the club premises beyond the schedule time. Such charge is usual in most of the clubs and judicial notice of the fact can be taken. 8 Judicial notice can be taken of the fact, that the cancer ward attached to the Kamala Nehru Maternity Hospital is a separate hospital under the same management. 9 The court can take note of the fact judicially that Harijans are socially, educationally and economically backward.10 Judicial Notice cannot be taken of : 2i)  the fact whether a particular railway track which was laid on the land belongs to the Central Government.11 2ii)  of a notification issued by the Textile Commissioner. 12 2iii)  of a notification under the Forest Act, declaring an area as a reserved forest, as it is an executive character. Proof of it by production of Gazette, or its certified copy, coupled with proof of its publication in the Gazette, has to be given. 13 2iv)  it is not open to the court to take judicial notice of the Clearing House Rules.14 82 Onkarnath v. Delhi Administration, AIR 1977 SC 1108; Englishman v. Lajpatrai, (1910) 37 Cal 376 : (1961) 2 CrLJ 272; Jit Singh Mohar Singh v. Municipal Committee Khanna, (1960) 1 Punj 803. 83 Keshoram Cotton Mills v. Gangadhar, AIR 1964 SC 708. 84 Pati Soura v. State, ILR 1970 Cut 1165. 85 Shivnath Rajram v. Union of India, AIR 1965 SC 1666. 86 Ishar Dass v. Smt. Chetni Bai (1970) 72 Punj LR 17; M/s. Khaki Mal Hukum Chand v. Great American Insurance Co. Ltd., New Delhi, AIR 1960 Punj 523. 87 Union of India representing Southern Railway v. M/s. Natabarlal Jayashankar, AIR 1963 Ori 66. 88 Salig Ram v. Emperor, AIR 1943 All 26; (disturbances in August 1942); Sukhdev Singh v. Union Territory of Chandigarh, AIR 1987 P&H 5 (FB). 89 Jubba Mallah v. Emperor, AIR 1944 Pat 58.

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90 Kedar v. Emperor, AIR 1944 All 94. 91 Harisingh v. Dewani Vidhyawati, AIR 1960 J&K 91. 92 State of Assam v. Bansyidhar, AIR 1981 SC 1957. 1 Kamali Metals & Alloys Ltd. v. Workmen, AIR 1967 SC 1175. 2 Bharat Petroleum Management Staff Pensioners v. Bharat Petroleum Corp. Ltd., AIR 1988 SC 1407; Ramalakshmi Ammal v. Seeniya Pillai, AIR 1977 Mad 34. 3 Dhan Raj v. Kishni, 1998 CrLJ 1312 (para 7) (Raj). 4 Rattam Arya v. State of Tamil Nadu, AIR 1986 SC 1444; Oswal v. Subbaiah, AIR 1992 SC 184. 5 State of M.P. v. Dhirendra Kumar, AIR 1997 SC 318. 6 Onkar Nath v. Delhi Administration, AIR 1977 SC 1108. 7 Life Insurance Corp. of India v. S.S. Srivastava, AIR 1987 SC 1527. 8 State of A.P. v. K. Satyanarayan, AIR 1968 SC 825. 9 State of A.P. v. K. Satyanarayan, AIR 1968 SC 825. 10 Bishnu Charan Swain v. Secretary Works & Transport Department, 1974 Ori 115(DB) ; relying on Chitra Ghosh v. Union of India, AIR 1970 SC 35. 11 Manik v. Divisional Superintendent, Central Railways, 1971 Mah. LJ 468. 12 Pannalal v. State, AIR 1953 M.B. 84; see contra Public Prosecutor v. Kamakshi Ammal, 1983 Mad. LJ 617(Cri) . 13 Anthony v. Forest Range Officer, 1978 Mad. L.J. 74(Cri) (Ker) ; Chako Pyli v. State, 1966 Ker. L.J. 76 : 1966 Ker. L.T. 102; Executive Officer v. M. Bharatan, 1967 Ker. L.T. 161. 14 Brahma Shumsher Jung Bahadur v. Chartered Bank of India, 1956 Cal 399(Australia & China) .

18. PRICE OF LAND Increase in the price of urban and rural lands, after 1958, while valuing lands for compulsory acquisition under the Land Acquisition Act can be taken judicial notice of. 15 In a suit for specific performance of an agreement to sell land, or for damages for breach of contract, it was held that the court can take judicial notice of the rise in prices and the exact rate of the increase. 16 Judicial notice can be taken of the fact that the rise in the prices of lands near about a developing town is a continuous and unending phenomenon, while determining the market value. 17 After the partition of Bengal in 1947, Judicial notice has to be taken of the increase in the land value in Calcutta.18 The court can take judicial notice of the general appreciation in land value and the general principles of assessment as recognised by the courts, while fixing the market value under the Land Acquisition Act .19 The court is entitled to take judicial notice of facts which are of general knowledge, e.g., that the land value differs in different towns in which municipalities are established, that different types of mills and factories required different types of buildings, and that the buildings of mills and factories are of different age, and the value of a building decreases with its age. 20 15 83 Mad L.W. 621; Modi Spg. & Wvg. Mills v. Virendra, (1998) 5 SCC 718; Land Acquisition Officer, Revenue Devisional Officer v. L. Kamalamma, (1998) 2 SCC 385; State of M.P. v. M/s. Ahad Brothers, 1999 AIHC 3504 (paras 10 and 11) (MP).

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16 Sau Shantabai v. Manak Chand Ratan Chand Raka, AIR 1988 Bom 82. 17 Puran v. State of Haryana, AIR 1986 Punj & Hariya 305. Also see Gulabi v. State, AIR 1998 HP 9; Baldev Singh v. State of Punjab, AIR 2007 P & H 129. 18 Prabodh Chandra Mukherjee v. Pashupathi Mukherjee, (1967) 71 Cal W.N. 649; Mahmudabad Properties Ltd. v. Commissioner of I.T., 1971 Tax. LR 845(Cal) ; (rise in price of lands between 1954 and 1961. 19 State of Orissa v. Dhunda Gram, AIR 1978 Ori 74. See also Bhimasha v. Special Land Acquisition Officer, (2008) 10 SCC 797, 798 (para 6). 20 Lokamanya Mills Barai Ltd. v. Barai Municipal Council, AIR 1968 Bom 229.

19. CONSTRUCTION COSTS Judicial notice can be taken that construction costs of buildings have gone up. 21 21 Haryana Urban Development Authority v. A.K. Rampal, (2005) 9 SCC 443, 445 (para 6) : AIR 2004 SC 4138.

20. BUILDING REGULATIONS The Court can take judicial notice of the Building Regulations which are made in public interest and apply them to a case.22 22 3 ACES, Hyderabad v. Municipal Corporation of Hyderabad (FB), AIR 1995 AP 17 (para 24).

21. BANKS The practice of charging interest on the amount overdrawn is so common with the banks that the court is justified in taking judicial notice of that practice. 23 23 U.P. Union Bank Ltd. v. Dinanath Raja Ram, AIR 1953 All 637.

22. PAY SCALES In cases of claims for compensation under the Motor Vehicles Act , the court can take judicial notice of enhancement in pay scales and pension of Government servants, while awarding compensation to a deceased Government servant.24 24 Bimalkumar Das v. Parijata Bewa, AIR 1987 Ori 146.

23. ACADEMIC SESSIONS The court can take judicial notice of uncertainty about the commencement and termination of academic sessions.25 25 Basanta Kumar Behera v. State of Orissa, AIR 1988 Ori 124.

24. EDUCATIONAL SYSTEM The Court can take judicial notice of the fact that the educational system in the State (here Bihar) has virtually crumbled and serious allegations are made frequently about the manner in which the system is worked.26The High Court can take judicial notice that the State Government alone cannot take effective measure for imparting education to the children of the country. 27

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26 Managing Committee of Rajo Sidheshwar High School v. State of Bihar, AIR 1996 Pat 19 (para 6). 27 Debasish Kar Gupta v. State of W.B., AIR 1999 Cal 300 (para 7).

25. NOTORIOUS FACTS The court can take judicial notice of what are known as notorious facts. But the condition regarding communal disturbances in a particular State at a particular time is a matter of opinion and somewhat controversial. Controversial facts cannot be considered notorious facts. Judicial notice cannot be taken of such facts.28 The holocaust of 1950, on both sides of the border, and crossing thereof by a vast mass of humanity, leading to an agreement known as Nehru-Liaquat Ali agreement, are notorious facts which the court can take judicial notice of.29 Where communal feelings are exploited, violence would invariably erupt sooner or later, whether such violence is advocated or not. The courts are justified in taking judicial notice of such a notorious fact. 30 The court can take judicial notice that Kohima in Nagaland is a disturbed area 31 or a certain area is terrorist-stricken.32 Court can take judicial notice that the Central Government is located at New Delhi. 33The court took note of the drought in the western part of Orissa, for three or four years. 34 Information available as to who was Bhindranwale and what he stood for, can be taken judicial notice from the Government of India's White Paper on Punjab agitation. 35 28 Abida Khatoon v. State of U.P., AIR 1963 All 260; (condition in U.P. in Feb., 1950) Jay Engineering Wroks Ltd. v. State of West Bengal, AIR 1968 Cal 407; Chait Ram v. Sikandar Choudhary, AIR 1968 Pat 337. 29 United Bank of India v. Narayan Chandra Ghose, (1970) 74 Cal WN 150. 30 Md. Ishaq v. State of U.P., AIR 1957 All 782. 31 Masha Angami v. Govt. of Manipur, AIR 1968 Manipur 23. 32 Abdul Malik v. State of U.P., AIR 1994 All 376 (para 13). 33 P.N. Films Ltd. v. Union of India, AIR 1955 Bom 381. 34 Golaprai Jain v. Gouranga Meher, AIR 1969 Ori 266. 35 Sukhdev Singh v. Union Territory Chandigarh, AIR 1987 P&H 5 (FB).

26. SMUGGLING The court can take judicial notice of extensive smuggling of gold along the West Coast of South India.36 Judicial notice can be taken of the fact that Sambalpur district is a surplus district as regards rice, and that there was extensive smuggling from that district to the adjacent States such as Bihar and Central Provinces.37 36 Devichand Jestimall Co., Bangalore v. Collector of Central Excise, Madras, 1960 Mad 281. 37 Sheonath v. State of Orissa, AIR 1953 Ori 53.

27. ILLEGAL IMMIGRATION

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The Court can take judicial notice of the wide spread of malaise of illegal immigration and the exploitation of the youngones by unauthorised recruiting agents. Judicial notice can also be taken of the tragedy which occurred on the night intervening 24th and 25th November, 1996 in which 280 immigrants including 170 Indians, who were being illegally ferried, met their watery graves on their journey from Malta to Cicily.38 38 M.D.K. Immigration Consultant, Chandigarh v. Union of India, 2000 CrLJ 252 (para 12) (P&H).

28. INACTION Where Agra Development Authority had an income of 20 lakhs only in 1993-94 from toll tax charged from the visitors to Taj Mahal, the Court can take judicial notice of its inaction in preservation of the Taj and the cleanliness of Agra city.39Judicial notice of inaction of Bihar Government in not imparting training to untrained primary school assistant teachers recruited three years ago was taken and timebound direction was given to Government to ensure their training. 40 Judicial notice can be taken of the fact that the municipal authorities all over India are unwilling or unable or incapable of stopping illegal construction and/or demolishing the same. 41 39 M.C. Mehta v. Union of India, (1998) 8 SCC 711. 40 Ram Vijay Kumar v. State of Bihar, (1998) 9 SCC 227. 41 Supreme Court Monitoring Committee v. Mussoorie Dehradun Development Authority, (2003) 10 SCC 445, para 1 : AIR 2002 SC 2876.

29. PROPAGANDA BY GOVERNMENT Propaganda by the State Government, calling upon the people to help it in finding out corruption and promising them protection against prosecution for being accomplices, can be taken judicial notice of by the Court.42 42 Public Prosecutor v. Audinarayana Chetti, AIR 1953 Mad 481.

30. SATSANGI Judicial notice has to be taken of the fact that there is a flourishing colony of Satsangi at Agra.43 43 Comr. of I.T. Lucknow v. Radhaswami Satsangh Sabha, AIR 1954 All 291.

31. GHERAO Court can take judicial notice regarding Gheraos and that the attitude of the Government towards Gherao met with adverse reaction in many quarters.44 44 Jay Eng. Works Ltd. v. State of W.B., AIR 1968 Cal 407.

32. ACADEMIC DISTINCTION The Court can take judicial notice of the fact that many blind persons have made a name for themselves and have acquired great academic distinctions. 45 45 Jai Shankar Prasad v. State of Bihar, AIR 1993 Pat 22 (para 11).

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33. MATTERS OF COMMON KNOWLEDGE The court is entitled to take judicial notice of matters with which men of ordinary intelligence are acquainted and to act upon its general knowledge of local affairs. 46The mortgage of the properties of the Indian Iron and Steel Company with the World Bank is a fact of common knowledge and public history, and the judge can take judicial notice that a particular sale deed of the Company was in the custody of the World Bank.47Judicial notice can be taken of the fact that law and order situation has deteriorated over years and is fast worsening.48Where the question was as to the justification for dispensing with an enquiry u/s. 5-A of the Land Acquisition Act when acquiring land for a road bridge, it was held that the court can take judicial notice of the traffic congestion which is likely to create a tense situation when accidents occur.49The Supreme Court can take judicial notice that a majority of writ petitions are filed merely for obtaining interim orders.50The Ramayan is sacrosant to Hindus. Rama, Krishna, Brahma, Mahatma Gandhi, to mention only a few, are held in the highest esteem by them. These are matters of common knowledge and court can take judicial notice of them. 51The Court may take judicial notice of the fact that in Haryana there has not only been green and white revolution but an industrial revolution also.52The Court can take judicial notice of the absence of judicial complexes and inconvenience caused to all. The Govt. should focus attention towards construction of necessary judicial complexes.53The Court can take judicial notice of the fact that ordinarily in certain cases one person looks after the case.54 Taking judicial notice of the scarcity of dwellings, the Calcutta High Court held that a dwelling house cannot be acquired without providing alternative accommodation. 55The extent to which, and the process by which, an accurate topographic plan can be produced from a pictorial delineation of a scene are not matters of common knowledge, though such questions have long occupied attention of men of science.56 In Babu Ram v. State of U.P. ,57the Apex Court held that it is a matter of common knowledge that in Central India rice in small quantity is generally cooked and served along with 'Dal Roti' and rice is not the principal meal or eaten exclusively. It is a common knowledge and an admitted fact that the word "Atul" is a proper name of a person and is rather a common proper name of which judicial notice is required to be taken and need not be proved.58 46 Madho Singh v. State of Bihar, AIR 1978 Pat 172. 47 (1967) 2 Cal 604. 48 Shashi Nayar v. Union of India, AIR 1992 SC 395. 49 Alogsius (Lt. Col.) v. State of Karnataka, AIR 1992 Kant 241. 50 Asst. Collector of Central Excise v. Dunlop India Ltd., AIR 1985 SC 330. 51 Lalai Singh Yadav v. State of U.P., 1976 CrLJ 98(SB) (All). 52 Atam Prakash v. State of Haryana, AIR 1986 SC 859. 53 District Bar Association, Kurukshetra v. State of Haryana (FB), 1997 AIHC 3983 (para 16) Vol. 6 (P&H). The Court referred CW No. 10428 of 1995, Dt. 27-3-1996 (P&H). 54 Shivshankar v. Sarjeet Singh, 2001 AIHC 1131 (para 8) (MP). 55 Bamandas Mukerjee v. State of W.B., AIR 1985 Cal 159. 56 United States Shipping Board v. The Ship 'St. Albans', AIR 1931 P.C. 189. 57 AIR 2002 SC 2815 (para 5) : (2002) 6 SCC 518 : 2002 CrLJ 3745. 58 Atul Products Ltd. v. Y.P. Mehta, AIR 2009 Bom 94, 88 (para 16).

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34. MATTER OF COMMON PRACTICE In State of Punjab v. Hardam Singh ,59the Supreme Court observed that it is a matter of common practice that on a date a case is fixed for hearing, the presence of the counsel is recorded in the order sheet and not that of the parties. Courts can take judicial notice of the practice prevailing in transactions in relation to the Stock Exchange where both the parties have to rely upon each other. 60 59 State of Punjab v. Hardam Singh, (2003) 12 SCC 679, para 4 : AIR 2003 SC 4343 : 2003 CrLJ 5048. 60 M.S. Narayana Menon v. State of Kerala, AIR 2006 SC 3366, 3373 (para 37).

35. PERSONAL KNOWLEDGE OF THE JUDGE The Supreme Court has held that in assessing the value of oral evidence, the judge is bound to call upon his experience of life.61A judge can rely on the information gained by him from the other cases which he has heard during his service.62 A judge cannot decide on taking cognizance of an offence, based on his personal knowledge. 63The Andhra Pradesh High Court held that use of personal knowledge of facts, while judging a case, will be a travesty of justice.64 There is a difference between the personal knowledge of a judge as a private man and his knowledge as a judge; he can make use of his experience as a judge by taking judicial notice of facts transpiring in the court.65The judge cannot use knowledge of facts which came to him from other sources. A judgement based on such facts, other than legal evidence, would not be in accordance with law. 66 The Madras High Court observed: "A judge must be allowed to use even his knowledge of concrete private facts, provided he mentions his knowledge to the parties, and they do not object to his deciding the case; and he must be allowed of course to use historical, scientific, political, or otherwise, in coming to his conclusion. The only restriction that should be imposed upon the judge is that he should not import knowledge obtained by mere rumour or hearsay of concrete facts with the particular case before him for arriving at a conclusion.67 61 Chaturbhuj Pande v. Collector of Raigarh, AIR 1969 SC 255. 62 Fazal Begum v. Hakim Ali, AIR 1941 Lah 22. 63 Chabilal Gurung v. Krishna Bahadur Grung, 1984 Cr. LJ 1433. 64 Seshareddy v. China, AIR 1958 AP 595. See also Oriental Insurance Co. Ltd. v. Bhoop Singh, (2003) 10 SCC 286, para 8. 65 Chattra Kumari v. Mohan Bikram Shah, AIR 1931 Pat 114. 66 Durgaprasad Singh v. Ram Dayal Choudhary, ILR 38 Cal 153. 67 Lakshmayya v. Sri Rajah Varada Raja Apparao Bahadur, (1912) 36 Mad 168.

36. SUBSEQUENT EVENTS The power of the Court to take note of subsequent events is well-settled and undoubted. However, it is accompanied by three riders. Firstly, the subsequent event should be brought promptly to the notice of the Court; secondly, it should be brought to the notice of the Court consistently with rules of procedure enabling Court to take notice of such events and affording the opportunity of meeting or explaining such events; and thirdly, the subsequent event must have a material bearing on right to relief of any party.68In an eviction proceeding, the landlord died during the pendency of appeal, his LRs/sons, were held to be entitled to defend the estate as the bona fide requirement of the landlord does not come to an end with his death as it has to be examined on the date of the institution of the proceedings. 69In an

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industrial dispute, the Tribunal granted revised wages to the employee of a company subsequent to the award of which the Company suffered loss and became a 'sick company'. The Supreme Court remitted the matter to the Tribunal allowing the Company to place additional material as to its financial position to be considered by the Tribunal which it had earlier refused to consider. 70If by subsequent event, the original proceeding has become infructuous, ex debito justitiae, it will be duty of the Court to take such act ion as is necessary in the interest of justice which includes disposing of infructuous litigation. For the said purpose it will be open to the parties concerned to make an application under Section 151 , CPC to bring to the notice of the Court the facts and circumstances which have made the pending litigation infructuous. Of Course when such an application is made, the Court will enquire into the alleged facts and circumstances to find out whether the pending litigation has in fact become infructuous or not.71The Court can take note of the subsequent events which have taken place during the pendency of the writ petition, if it is found that the situation which was prevalent as on the date of filing of the writ petition really has not been changed. 72 68 Atma S. Berar v. Mukhtiar Singh, AIR 2003 SC 624 (para 15) : (2003) 2 SCC 3. Subsequent event taking place at trial Court stage, attention of Court invited at appellate stage, not entertained, Ram Nibas Gogar v. Debojyoti Das, AIR 2003 SC 632, paras 9 and 10 : (2003) 1 SCC 472. 69 Shakuntala Bai v. Narayan Das, AIR 2004 SC 3484, paras 7, 11, 14, 15 and 16 : (2004) 5 SCC 572, reversing 1998 AIHC 2173(MP) and hold the observation in P.V. Papanna v. K. Padmanabhaiah, AIR 1994 SC 1577 as Obiter. The Court referred to Shantilal Thakordas v. Chimanlal Maganlal Telwala, AIR 1976 SC 2358; Gaya Prasad v. Pradeep Srivastava, AIR 2001 SC 803 : (2001) 2 SCC 604 and G.C. Kapoor v. Nand Kumar Bhasin, AIR 2002 SC 200 : (2002) 1 SCC 610. 70 Mukand Ltd. v. Mukand Staff & Officers' Association, AIR 2004 SC 3905, paras 91, 95, 99 and 101. 71 Shipping Corporation of India Ltd. v. Machado Brothers, AIR 2004 SC 2093, para 25. 72 The Indian Craft Village Trust v. The Calcutta Municipal Corporation, AIR 2007 (NOC) 2300(Cal) .

37. STATUS The Court can take judicial notice of the fact that the National Institute of Mental Health and Neuro Sciences (NIMHANS) was an institution of repute. The Supreme Court itself took judicial notice of this fact.73 73 K. Shekar v. Indiramma, (2002) 3 SCC 586, para 21 : AIR 2002 SC 1230.

38. AVERMENT OF APPLICANT Where in a accidental claim petition involving the death of the victim, compensation was granted to the victim's wife and minor son but not to the applicant dependent aged mother, in appeal in absence of any material to the contrary, the Court took notice of the mother's averment and rectifying the award, granted compensation to her also.74 74 Gowramma v. Nagappa, 1998 AIHC 1693 (para 3) (Kant).

39. COSTS Judicial notice can be taken of the fact that many unscrupulous parties take advantage of the fact that either the costs of the suit are not awarded or nominal costs are awarded against the unsuccessful party. Unfortunately, it has become a practice to direct the parties to bear their own costs which encourages filing of frivolous suits.75 75 Salem Advocate Bar Association v. Union of India, (2005) 6 SCC 344, 369 (para 37) : AIR 2005 SC 3353.

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40. F.I.R. The fact whether the FIR was sent to the Public Prosecutor and the concerned Magistrate, must be proved like any other fact and is not a matter of which judicial notice can be taken. 76 76 Birsingh v. State of U.P., AIR 1978 SC 59.

41. EVASION OF STAMP DUTY The Court would not be justified in taking judicial notice of the practice of under valuation for evading stamp duty in the absence of any evidence, though the practice is prevalent. 77 77 Tata Chemicals Limited, Bombay v. Sadhu Singh, AIR 1994 All 66 (para 22).

42. NEWSPAPERS The facts stated in a newspaper are in the nature of hearsay and so inadmissible, unless the maker is examined, judicial notice of facts stated therein can also not be taken. 78 78 Laxmi Raj Shetty v. State of Tamil Nadu, AIR 1988 SC 1274 at p. 1290 : 1988 (3) SCC 319. See also Amal Kumar Chatterjee v. State of U.P., 1999 AIHC 3901 (para 3) (All); Ram Swaroop Bagari v. State of Rajasthan, AIR 2002 Raj 27.

43. SUNRISE Where the eye-witnesses of a murder, committed at night, deposed to have run away one towards the hill and the other towards the river in the opposite direction to save themselves and did not contact any body to inform about the incident till 8 o'clock in the morning, the Court took judicial notice of the fact that it being the summer days of April, the sun would have risen around 6 o'clock in the morning. As such there was no explanation as to why the witnesses did not go to their house or contact any body up to 8 o'clock in the morning.79 79 State of M.P. v. Kriparam, (2003) 12 SCC 675 (para 8).

44. DRIVING LICENCE Where the insurance company took a plea in its written statement that the driver did not possess valid driving licence at the time of accident, it being a negative fact, it cannot be proved by adducing a positive evidence.80 80 National Insurance Co. v. P. Santha, 2002 AIHC 795, 796 (para 5) (Ker).

45. RATE OF INTEREST The Court can take a judicial notice of the fact that the Government in 1977 fixed the rate of interest as 12-1/2% per annum under Section 13 of the A.P. (Andhra Area) Agriculturists Relief Act, 1938 on the arrears of rent.81 81 Manduva Ramaiah v. Mallikarjunaswami Kamakshithayya Temple , Zannawada, 2003 AIHC 502, 505 (para 10) (AP).

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46. WORKER IN A COMPANY The Court cannot take a judicial notice of a fact that the deceased who was worker in a company, worked for fifteen days only in a month.82 82 G.M. A.P.S.R.T.C. v. Sangum Bhagyamma, 2002 AIHC 2548, 2549 (para 7) (AP).

47. CONSIDERATIONS REPRESENTED IN SALE DEEDS There is a duty cast on the Courts to take judicial notice of the fact that despite the Government directions and safeguards almost as a matter of course the figures of consideration that are represented in sale deeds do vary from the act ual and fair market price. Hence the Courts should not accept figures represented in sale deeds as being sacrosanct or more importantly as being a parameter of existing fair market values.83 83 Asstt. Commr. Dharwad and L.A.O. v. Secretary , Agri. P.M.C., Hubli, 2003 AIHC 1682, 1689 (para 9) (Kant).

48. HUMAN EXPERIENCE AS TO A WOMAN'S CLAIM TO BE SOMEBODY'S WIFE Where the question is whether a woman claiming to be the wife of the deceased is as such or not, the Court may take a judicial notice of the human experience that it is very rarely a lady with children, would claim that she is the wife of a person who is not her husband. 84 84 Laxmi Kom Venkanna Nayak v. Govt. v. India, AIR 2003 Kant 54, 58 (para 6).

49. SERVICES RENDERED BY HOUSEWIFE The Court can take judicial notice of the services rendered by a housewife to the family in deciding compensation for her accidental death in a motor vehicles accident claim case. 85 85 United India Insurance Co. Ltd. v. Virambhai Ranchhodbhai Patel, AIR 2007 Guj 119, 120-21 (para 5 and 6).

50. LIQUOR ADDICTION Judicial notice can be taken that more and more of the younger generation in our country is getting addicted to liquor.86 86 State of Maharashtra v. Nagpur Distillers, Nagpur, (2006) 5 SCC 112, 116-17 (para 9).

51. CHEMICAL LABORATORY Judicial notice can be taken of the fact that each village would have a chemical laboratory where the process of analysis of ethyl alcohol can be carried out. 87 87 State of Kerala v. Unni, (2007) 2 SCC 365, 374 (para 27).

52. MARRIAGE OF ARMY OFFICER The Court can take the judicial notice of the fact that whenever an Army Officer is married, the fact of such marriage is duly recorded by the Army.88

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88 Ajay Singh v. Tikka Brijendra Singh, AIR 2007 HP 52, 61 (para 32).

53. SUSPECT MANNER OF FUNCTIONING OF POLICE The Courts should take judicial notice of the suspect manner of the functioning of the police and the excise authorities as they register cases, as in the instant case, against innocent persons and harass them.89 89 Geetha v. Sub-Inspector of Excise, Mudigere, 2007 CrLJ 3496, 3500 (para 24) (Kant).

54. EASY AVAILABILITY OF FINANCES The Court took judicial notice that these days finances for building construction are easily available. 90 90 Vishwamitra Ram Kumar v. Vesta Time Company, (2007) 14 SCC 374, 384 (para 17).

55. OVERCROWDING IN TRAINS The High Court of Bombay has observed that judicial notice has to be taken of the fact that in the city of Mumbai, suburban local trains are always overcrowded. The passengers have no option but to stand near the doors of the compartment as it becomes impossible to force entry inside the compartment during rush hours. The passenger standing at the door may lose his balance due to pressure of heavy rush and get hit by pole standing by the railway track and fall down. The passenger cannot be said to be negligent under such circumstances. 91 91 Union of India v. Suchitra G. Pathare, AIR 2009 (NOC) 843(Bom) : 2009 (1) AIR Bom R 100.

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Ratanlal & Dhirajlal: Law of Evidence, Updated 23rd Edition/THE INDIAN EVIDENCE ACT (ACT 1 OF 1872)/PART II ON PROOF/CHAPTER III FACTS WHICH NEED NOT BE PROVED/S. 58.

CHAPTER III FACTS WHICH NEED NOT BE PROVED S. 58. Facts admitted need not be proved. No fact need be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings: Providedthat the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions.

1. PRINCIPLE AND SCOPE Admissions by parties before suit are dealt with in Section 17,et seq. This section deals with admissions at or before the hearing. Admission forms the best evidence. It may be that admission does not create any title, but the nature of the land can form subject-matter of admission. Section 58 of the Evidence Act postulates that things admitted need not be proved.92 No proof need be given of facts which the parties or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by writing under their hands, or which, by any rule of pleading in force at the time, they are deemed to have admitted by their pleadings. 93By taking recourse to an amendment made in the pleading, the party cannot be permitted to go beyond his admission. The principle would be applied also in an industrial adjudication having regard to the nature of reference under the I.D. Act .94 The object of this provision is to save time and expense at the trial. 95Admissions which are contemplated under this section are: 1)  Admissions in the pleadings (Order VIII, Rule 5, C.P.C.) or by way of answers to the interrogatories (Order XI, Rule 22, C.P.C.). 1)  Admissions which can be implied from the pleadings. 1)  Admissions by way of agreement in writing before the hearing, or by giving notice to admit (Order XII, C.P.C.). 1)  Admissions by a party or his lawyer at the time of hearing. In terms of Section 58 of the Evidence Act, 1872, a thing admitted need not be proved. An admission made by a party can be used against him when such admission is made by a Karta of the HUF, who is managing the family property as well as family business affairs, the same would be a relevant fact. When a claim was made by the plaintiffs for rendition of accounts in the lis, issuance of a document purported to have been authored by one of the parties was required to be taken into consideration. 1 A Court, in general, has to try the questions on which the parties are at issue, and not those on which they are agreed. Admissions which have been deliberately made for the purpose of the suit, whether

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in the pleading or by agreement, will act as an estoppel to the admission of any evidence contradicting them.2 It is with the object of doing away with the necessity of proving documents or facts admitted, that admissions are obtained, and the party unreasonably refusing or neglecting to admit any documents or facts, when called upon to do so, may be ordered to pay the costs of proof. Where the defendant admitted in his written statement that his father was married to the plaintiff's mother according to Henga custom, he was not allowed subsequently to contradict it. 3 The Supreme Court has observed: "Admission in pleading, or judicial admissions, admissible under Section 58, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admissions. The former class of admissions are fully binding on the parties that made them and constitute waiver of proof. They by themselves can be made, the foundation of the rights of the parties. On the other hand, evidentiary admissions which are receivable at the trial as evidence are by themselves not conclusive; they can be shown to be wrong." 4 When the execution of a document is admitted there is no need to prove the instrument. 5 Admissions may be judicial admissions or extra-judicial admissions. Section 17 of the Act deals with admissions which are in the nature of extra-judicial admissions. They are binding on the party against whom they are set up, only to a certain extent, except in cases where they operate as, or have the effect of, estoppel, in which case they would be fully binding and may constitute the foundation of the rights of the parties.6 An admission in a pleading means an admission of an averment by the opposite party. 7 When the defendant does not file any written statement, it does not amount to an admission of the facts stated in the plaint. Sir John Beaumont held that if there was no pleading of the defendant, it is obvious that it can contain no denial or no admission. 8 But after the amendment of Order VIII, Rule 5, C.P.C. in 1976, adding clause 2 to Rule 4, on the failure of the defendant to file a written statement, the court can take that the allegations in the plaint are admitted by the defendant and pronounce a judgement. Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or not stated to be not admitted in the pleading of the defendant, shall be taken to be admitted. The court may in its discretion require any fact so admitted to be proved otherwise than by such admission (O. VIII, R. 3, Civil Procedure Code ). Where a document is not admitted in the pleadings but only at the trial in evidence, the document must be proved.9 In a case the mother of the minor children executed a sale in respect of a piece of land in persuant to an agreement for sale executed by the deceased father and one of the minor children, challenging the sale deed for want of Court's permission, as a witness admitted and there was a recital to that effect in the sale deed too that a small building left by their deceased father was reconstructed with the amount received from the impugned sale deed which fetched rent and the trial Court gave a finding to that effect adding that the rental so received was the only source of maintenance and education of the minor children. The High Court upheld the finding and held that prior permission of the Court was not required. In such circumstances, the High Court's order remanding the matter to trial Court to record further evidence to prove that the sale proceeds were utilised as mentioned above was not sustainable.10Where the tenant admitted before the Court that there was a lease for a specified period on a monthly rental of the specified sum and the lease was admitted to be a valid lease in his written statement, he could not resile from that position. 11Where the tenant filed objection to the notice and admitted its receipt, it need not be proved by producing oral evidence. 12 92 Avtar Singh v Gurdial Singh,(2006) 12 SCC 552, 554 (paras 8 and 9). See also Chairman & Managing Director, 93 See Maung Po Kin v. Maung Shwe Bya, (1923) 1 Ran 405. 94 Steel Authority of India Ltd., v. U.O.I., AIR 2006 SC 3229, 3235 (para 34) : (2006) 12 SCC 233. 95 John Over v. Muriel, AIR 1925 Bom 231.

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1 Gannmani Anasuya v. Parvatini Amarendra Chowdhary, (2007) 10 SCC 296, 303 (paras 23 and 22), relying on Shreedhar Govind Karmerkar v. Yesahwant Govind Kamerkar, (2006) 13 SCC 481 : (2006) 14 Scale 174. 2 Burjorji Cursetji Panthaki v. Mundherji Kuverji, (1880) 5 Bom 143, 152. 3 Rasamani Das v. Patrabala Devi, AIR 1981 Gau 42. 4 Nagin Das v. Dalpat Ram, AIR 1974 SC 471; Nilkant Laxman Joshi v. Raghu Mahadu 1918 Bom 167. 5 Javerchand v. Pukhraj Swurana, AIR 1961 SC 1655; Narayana Raja v. Chawaraju, AIR 1968 SC 1276; Narayan v. Gopal, AIR 1960 SC 100; Nagabai v. Shamarao, AIR 1956 SC 593; Ajodhya Prasad v. Bhawanishankar, AIR 1957 All 1(FB) ; Sundaram v. Rukmani, AIR 1975 Mad 83; Gopi Kishan v. Bajrang Lal, 1996 AIHC 4064 (paras 13 and 14) (Raj). 6 Ajodhya Prasad Bhargawa v. Bhawanishankar Bhargawa, AIR 1957 All 1(FB) ; Abdul Aziz v. Mariyam Bibi, AIR 1926 All 710; John Over v. Muriel, AIR 1925 Bom 231. 7 Latufallah Khudabaksh Khan v. Md. Sidik, AIR 1946 Sind 117. 8 Shriram Surajmal v. Shriram Jhunjhun Wala, AIR 1936 Bom 285; See also Ross & Co. v. Scriven, AIR 1917 Cal 269; Narinder Singh v. C.M. King, AIR 1928 Lah 769; Gobind Gorki v. Baldeo Ram, AIR 1930 Pat 293. 9 Maung Wala v. Maung Shwe Gon, (1923) 1 Ran 472. 10 Thatchara Bros. v. M.K. Marymol, (1999) 1 SCC 298. 11 Rajendra Pratap Singh v. Rameshwar Prasad, (1998) 7 SCC 602. 12 Life Insurance Corporation of India v. Advani & Co., 2001 AIHC 421 (para 6) (All).

2. IMPLIED ADMISSION The Supreme Court has held that under Order VIII, Rule 5, C.P.C., the facts, if not admitted specifically, or by necessary implication or not stated to be not admitted in the pleading of the defendant, shall be taken to be admitted, except as against a person under disability. 13Order XII, Rule 6 of the CPC is enacted for the purpose of and in order to expedite the trials. If there is any admission on behalf of a party or an admission that can be inferred from the facts and circumstances of the case without any dispute then in such a case in order to expedite and dispose of the matter, such admission can be acted upon.14 The doctrine of implied admission can only be invoked when a party on whom the burden lies, fails to state facts in support of his plea or when the facts specifically alleged by a party in support of his plea are not denied by the other party. Further, the doctrine of implied admission can be invoked only against a party who is under an obligation to allege certain facts. It cannot be invoked where there is express evidence to the contrary. The failure on the part of a party to discharge the burden which lies upon him, gives rise to an assumption against him.15 A general denial of the allegations does not relieve the plaintiff of the obligation to prove the essential facts.16 Where the allegations in a plaint are not controverted in the written statement, the allegations need not be proved.17When no case is put forward by the defendant in his written statement that the date of birth mentioned by the plaintiff in his plaint was wrong, the defendant cannot be allowed to dispute the correctness of the plaintiffs date of birth. The plaintiff is entitled to a decree on the basis of the admission of the defendant, where the original of a mortgage deed on foot of which a suit was brought which was admitted by the defendant was lost and the copy was not properly proved, it was held that there was no need to tender formal evidence regarding the loss of the original or the contents of the copy.18In an act ion for infringement of patent, the defendant admitted that the drug which he prepared and sold was the very drug in respect of which plaintiff's have obtained their patent, it was held that the facts admitted need not be proved.19Where in a suit for recovery of money, and the plaintiff relied on a letter written by the defendant to save the suit from the bar of limitation, the defendant simply stated that the suit is not saved by the letter from the bar of limitation, and did not deny the letter in his

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pleading, it was held that the letter must be taken as admitted and no proof need be given of the letter by the plaintiff.20 The Supreme Court observed:21"It is true that in divorce cases, under the Divorce Act of 1869, the court usually does not decide merely on the basis of the admissions of the parties. This is a rule of prudence and not a requirement of law. That is because parties might make collusive statements, admitting allegations against other, in order to gain the common object that both desire, for personal reasons. A decision on such admissions would be against public policy, and is bound to affect not only the parties to the proceedings but also their issues, if any, and the general interest of the society. Where, however, there is no room for supposing that parties are colluding, there is no reason why admission of parties should not be treated as evidence, just as they are treated in civil proceedings. The provisions of the Evidence Act and the Code of Civil Procedure provide for courts accepting the admissions made by the party and requiring no further proof in support of the facts admitted". In that case, the trial court based its finding on the admission of the wife and also other evidence that the child was conceived by the petitioner before the marriage. But the High Court, after reversing the finding, sent back the case to record a finding on the question whether the child was conceived after the marriage. The Supreme Court, held that the High Court was not right in remitting the case for a finding and that the court can base its decision on the basis of the admissions of the parties. A party is not bound by an admission in his pleading except for the purpose of the suit in which he pleaded; that admission is not binding in any other suit or for all time. 22 Where a party produces the previous admission of his opponent in writing, the fact admitted need not be proved by other evidence.23 13 Mahendra Manilal Nanavathi v. Sushila Mahendra Nanavathi, AIR 1965 SC 364 : (1965) 1 SCJ 88, 793. 14 Charanjit Lal Mehra v. Kamal Saroj Mahajan, (2005) 11 SCC 279, 285 (para 8), relying on Uttan Singh Duggal & Co. Ltd. v. United Bank of India, (2000) 7 SCC 120, 121. 15 Manmohan Das v. Bahauddin, AIR 1957 All 575. 16 Hardayan Gorodia v. Gahgadhar, AIR 1963 Cal 500. 17 Bhawani Das v. The Kayestha Pesthashala Allahabad, 1977 All LJ 897; Rameshwar Dayal v. State of H.P., AIR 1954 HP 21. 18 Bahadur Shah v. Mulk Raj, AIR 1934 Lah 898; Hikmatullah Khan v. Abdul Axim Khan, AIR 1921 All 218; Mohd. Zafar v. Zahur Hussain, AIR 1926 All 741 Mad; Chuni Kaur v. Udai Ram, (1883) 6 All 73. 19 Farbwerke Hoechst etc. v. Unichem Laboratories, AIR 1969 Bom 255. 20 Lakshminarayan v. Chinni Ramgirdharilal, ILR 41 Bom 89, Emperor v. Jaiwham Damkerji, AIR 1916 Bom 103. 21 Mahendra Manilal Nanavathi v. Sushila Mahendra Nanavathi, AIR 1965 SC 364 : (1964) 1 SCR 267. 22 Ramabai Shrinivas v. Govt. of Bombay, AIR 1941 Bom 144. 23 Ajodhya Prasad Bhargawa v. Bhavanishankar Bhargawa, AIR 1957 All 1(F.B.) .

3. ADMISSION MUST BE CLEAR AND SPECIFIC The admission of a party in respect of a fact must be clear and specific, in order to dispense with the proof of it.24An admission of a party must be clear and explicit in a case where an inference is required to be drawn in regard to the fact that thereby he had admitted the title of the other. 25 In an earlier suit, when the present plaintiff was a minor, it was stated that the minor left the joint family with his mother. After attaining majority, the plaintiff filled a suit for the partition of the Joint Family property; it was held that the admission in the earlier suit was not binding, as it was not clear and specific, and the onus of proof of exclusion was on the opposite party. 26

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The admissions which are to be relied on must be sufficient to cover the entire claim of the plaintiff and relieve him of the necessity of relying on the document; if admissions are indefinite or insufficient to cover the entire claim, then the plaintiff has to prove his claim in the ordinary way by producing the original document or its copies.27 The pleading of the party should not be construed strictly. 28 24 Marudanayagam Pillai v. Sola Pillai, AIR 1965 Mad 200; Ajodhya Prasad Bharghawa v. Bhavani Shanker Bhargawa, AIR 1957 All 1(F.B.) . 25 M.P. Wakf Board v. Subhan Shah, (2006) 10 SCC 696, 702 (para 22), relying on Thayyil Mammo v. Kottiath Ramunni, AIR 1966 SC 337. 26 Marudanayagam Pillai v. Sola Pillai, AIR 1965 Mad 200. 27 Peareylal v. Kunwar Hiradevi Rani, AIR 1941 All 150. 28 Bharat Fire & General Insurance Ltd. v. Parameshwari Prasad Gupta, AIR 1968 Del 68.

4. ADMISSION MUST BE TAKEN AS A WHOLE SIR BARNES PEACOCK, in a Full Bench Case in Poolin Peharee v. Watson & Co., (9 Suth. W.R. 190 (F.B.)), reiterating the principle announced by him in the earlier case reported in Sooltan Ali v. Chand Bibi, (9 Suth. W.R. 130) held that, while the court of law in entitled to accept a part of the evidence of a witness and to reject another part, a pleading cannot be dissected but must be taken or left alone, as a whole; that when a party in a written statement made certain admissions favourable to the plaintiff but denied other fact even though they were favourable to him, and asserted other facts which were unfavourable, the plaintiff, if he wanted to avail himself of the admissions, had to take not only the first set of facts as truly stated but also the second set of facts. 29 Where the defendant admitted his thumb mark on the Khata, but stated that it was obtained by exercise of undue influence, it was held that it was not possible to spell out any admission of liability on the part of the defendant, and as the admission was qualified, it was not sufficient to fasten the liability on the defendant.30 Where the defendant specifically pleaded that suit claim amount was appropriated by him in terms of another contract between the parties, such an admission, being qualified one, it should be read as a whole.31 29 See also M.M. Nanavati v. Sushila, AIR 1965 SC 364 : Matabhoy Mulla v. Mujji Haridas, AIR 1915 PC 2 : 42 I.A. 103, 109; Calcutta National Bank Ltd. v. Rangarom Tea Co. Ltd., AIR 1967 Cal 294; Fateh Chand Murlidhar v. Juggilal Kamlapati, AIR 1955 Cal 465; Gangaram v. Hetram, AIR 1965 Raj 47. 30 Gangaram v. Hetram, AIR 1965 Raj 47. 31 Western Coal fields Ltd. v. Swati Industries, AIR 2003 Bom 369 : 2004 (1) Bom CR 322 : 2003 (3) All MR 551.

5. COMPROMISE When both parties come before the court and are agreed in stating that the suit has been adjusted, then the court has no option (except perhaps an inherent power to prevent its proceedings from being used to work substantial injustice) but to record it 32 but this section would not apply where the alleged compromise was found to have been reached after passing of the order by the Court and thus the Court's order was not based on the alleged compromise. 33 Where the parties entered into a compromise, there is an express or implied admission of the facts concerned in the proceedings, by either party, and if the court is satisfied about the existence of a statutory ground for eviction, the court may pass a decree for eviction on the basis of the compromise. A consent decree for possession, based upon a compromise in a previous case and which showed

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the existence of a statutory ground of eviction, can take the shape of evidence or an admission which is the best proof of facts and can be made the foundation of the rights of parties. 34 From the compromise incorporated in the decree, the court's satisfaction about the existence of statutory ground for eviction, can be presumed.35 If an agreement of discharge or satisfaction be admitted in the pleadings, and hence no question of proof by oral or documentary evidence arises by virtue of this section, such compromise cannot be said to be inadmissiable for want of registration.36 32 Surendra Nath v. Tarubala dasi, 1930 PC 158;' Md. Azizullah Khan v. Md. Noorullah, Khan 1930 Nag (FB). 33 Jiria Devi v. Chhatiya Devi, AIR 2000 SC 3542 (para 6). 34 Nagindas v. Dalpat Ram, AIR 1974 SC 471, Sita Kueri v. Basisth Narain, AIR 1985 Pat 158. 35 Digambar Narayan v. Gajanan Laxman, ILR 1977 Bom 2482 : (1976) 78 Bom LR 252. 36 Ramchandra Sau v. Kailashchandra Patra, (1931) 58 Cal 532.

6. CONCESSION BY COUNSEL In a case under Central Excise Act, the counsel of the party made concession in the appeal filed against the order of the Collector (Appeal) of Central Excise, Goa and the appeal was dismissed which fact was in the knowledge of the party. Then, again in another appeal filed against the adjudicating orders which came up for hearing later, the counsel was permitted again to make the same concession and the appeal was dismissed. The Supreme Court held that it was not possible to believe that the counsel would have made that concession without the instructions of the party that is why the party did not agitate the matter. Hence, the party could not be allowed to withdraw from the concession.37 37 Primella Sanitary Products (P) Ltd. v. Collector of Central Excise, Goa, (2005) 10 SCC 644, 647 (paras 12 & 13).

7. ADMISSION BY COUNSEL Sworn testimony of the counsel for the accused relating to something which happened in connection with the proceedings in Court with respect to thumb impression of a witness, can not be declined by applying the rule that the accused are not bound by their counsel's admission. 38 38 Raghunath v. State of U.P., AIR 1973 SC 1100, 1104 : (1973) 1 SCC 564. See also Haryana State Industrial Development Corporation v. Cork Manufacturing Co., (2007) 8 SCC 120.

8. ADMISSION OF FACTS To secure appointment on one of the reserved posts of principalship in Kendriya Vidyalayas for OBC, a candidate alongwith his application annexed a caste certificate showing that he belonged to the OBC category and was appointed. Later on an inquiry revealed that he belonged to Haryana where he did not belong to OBC and not to Rajasthan the residents of where were entitled to OBC certificate. His services were terminated. He alleged that he was not given an opportunity to explain the circumstances which had been held against him. The Supreme Court held that the facts that he had admitted, such as he belonged to Haryana; at the relevant time he did not belong to OBC there; he obtained a certificate that he belonged to Rajasthan; a detailed inquiry was conducted by the DM, who gave him an opportunity of hearing; undisputedly he was given an opportunity to explain as to why his appointment should not be cancelled, need not be proved as per provisions of this Section. 39 39 Vice-Chairman, Kendriya Vidyalaya Sangathan v. Girdharilal Yadav, (2004) 6 SCC 325, 328 (para 11). See also L.K. Verma v. HMT Ltd., (2006) 2 SCC 269.

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9. PARTNERSHIP Where the defendant in his affidavits, sworn before the Notary Public, unequivocally admitted the formation of partnership and his retirement from the said partnership, in absence of any explanation in spite of having sufficient opportunity, such admissions in affidavit of the defendant were held to be conclusive proof about formation of partnership and his retirement therefrom. 40 40 Broadway Centre v. Gopaldas Bagri, AIR 2002 Cal 78 relied on Ramji Dayawala & Sons, (P) Ltd. v. Invest Import, AIR 1981 SC 2085.

10. ADMISSION OF DOCUMENTS Formal proof of a document, even when it is required to be proved in a certain way (e.g., by calling the persons who have attested it. see Section 68,infra) may be waived by any of the parties whose interest it may affect, although such waiver does not affect the legal character of the document or its validity.41 In the case of a will, where its execution or attestation, is not in dispute, there is no necessity to comply with the requirement of calling at least one attesting witness. 42 Where a will was referred to in a document the execution of which was admitted it was held that the admission did not extend to the execution of the will. The attestation of the will was not proved and hence it was held that execution of the will could not be held to be proved. 43Where the plaintiff himself accepted the execution of the will but questioned its legal validity in respect of certain properties, Section 58 would be applicable and not Section 68. 44 Where a tenant admitted the receipt of notice of determination of tenancy but alleged that the notice was bad in law as, instead of the copy of the original, the copy made out from the copy of the notice only had been filed by the landlord, it was held that the burden lay on the tenant to prove the invalidity of the notice, and he should have filed the original notice which he had received to substantiate his point that the notice was bad in law.45 When a document is marked on admission, without reservation, the contents are not only evidence, but are taken as admitted and cannot be challenged; but, where documents are marked on admission, dispensing with formal proof, the contents are evidence but the party admitting is free to challenge the contents.46 The admission of a document is admission of facts contained therein. 47 Where a consent is given by a party only to exhibit a document, the consent does not amount to an admission of its contents, and the party has a right to show by cross-examination that the document is not genuine.48 A document which is not a public document, or is not admitted, cannot be exhibited and looked into unless it is proved by oral evidence or otherwise.49 In a mortgage suit, on the basis of the mortgage executed by the Karta of a Hindu Joint Family on behalf of all the members including minors, when the Karta admitted execution, it was held such admission would not relieve the mortgagee of the necessity to prove its execution against the minor; though the minor is liable to discharge the debt as the debt was incurred for family necessity. 50 Where the execution of a gift deed was admitted in the written statement and the document was marked with the consent of the parties, the contents of the said document need not be proved. 51 41 Baijanath Singh v. Mussammat Biraj Kuer, (1922) 2 Pat 52 : AIR 1922 Pat 514; Arjun Sahu v. Kelai Rath, (1922) 2 Pat 317. 42 Thayyullathi Kunhikanan v. Kalliani, AIR 1990 Ker 226(DB) .

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43 Purnabai v. Ranchoddas, AIR 1992 AP 270. 44 Valluri v. Kopparthi, AIR 1994 AP 284 (paras 9 and 10), reversing AS No. 2259/86 Dt. 7-6-1990 (AP). See also Narendra Kumar v. Vishnu Kr. Nayyar, AIR 1994 Del 209 (para 9). 45 Manikant Tiwari v. Baburam Dixit, AIR 1978 All 144. 46 Lionel Edwards Ltd. v. State, AIR 1967 Cal 191. 47 Sitaram Motilal v. Santaru Prasad, AIR 1966 SC 1697; Lionel Edwards v. State of West Bengal, AIR 1967 Cal 191. 48 Janjay Cotton Co v. M/s. Omprakash, AIR 1973 Bom 40. 49 Satish Mohan Bindal v. State of U.P., AIR 1986 All 126. 50 Nageshwar Prasad v. Bachhu Singh, AIR 1919 Pat 411; Brahmanand v. Kanduri Charandas, AIR 1959 Ori 125. 51 Meda Rama Krishna Reddy v. Nainar Nammasivayya Prabhakar Reddy, 1996 AIHC 3946 (para 10) (AP) distinguishing V.A.A. Nanar v. A. Chettiar, AIR 1972 Mad 154; Purushothama Reddias v. Perumal, AIR 1972 SC 608 and A.V.S.Perumal v. Vadivelu Asari, AIR 1986 Mad 341.

11. ADMITTED DOCUMENT A settlement reached between the parties is an admitted document and it should to treated as such by the adjudicating authority.52 52 Viveka Nand Sethi v. Chairman, J&K Bank Ltd., (2005) 5 SCC 337, 343 (paras 13 and 14).

12. UNSTAMPED AND UNREGISTERED Even though execution of the document is admitted in the pleading, no relief can be granted on the basis of the admission when the document is insufficiently stamped, in view of the bar under Section 35 of the Stamp Act as it would amount to act ing upon an unstamped document. 53 However the Supreme Court held that once a document was marked as an exhibit and the trial proceeded, the document cannot be challenged on the ground of improper stamp. 54 In a case on the basis of a registered mortgage deed for recovering an amount, the defendant pleaded an agreement modifying the terms of the written contract under the mortgage deed, for taking a lesser sum, than was due. It was held in the case that, as the subsequent agreement modifying the terms of the written contract has to be proved, oral evidence is not admissible under proviso 4 to Section 92 of the Act. However, if the agreement is admitted by the other party, then the court is not precluded from act ing upon such agreement under Section 58, by dispensing with the proof of the agreement.55 Where in a suit filed on the basis of a document inadmissible for want of registration, the defendant admitted the execution of the document, but denied that the suit property was conveyed to the plaintiff, under it, it was held there was no admission as to contents of the document and the suit has to fail in the absence of the original.56In absence of any evidence and recitals about earlier partition of property, the document cannot be termed as a memorandum of partition, hence the said document, being unregistered, cannot be read in evidence.57 Where a sale deed of immovable property worth more than Rs. 100 was unregistered, it was held that as the defendant had admitted the sale deed in the pleading, no further proof is required under Section 58, and Section 91, does not come into play. 58In a case where a party admitted the document but pleaded its invalidity for want of registration, it was held that such admission can not be used to bind the party who has made an admission only of the genuineness of the document. 59

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53 Dewan Chand Barbar v. Jay Pee Finance Corporation AIR 1977 J&K, 61; Ylsodammal v. Janaki Ammal; AIR 1968 Mad 294 overruling Alimane Sahibna v. Subbarayudu, AIR 1932 Mad 693; Ponnuswami Chettiar v. Kailasam, AIR 1947 Mad 422; and following Achyuta Ramana v. Jagannathan, AIR 1933 Mad 117; Bishnu Kala v. Bishnu Maya, AIR 1980 Sikkim 1; (Unregistered mortgage deed) Chenabasapa v. Lakshman Remachandra, (1894) 18 Bom 639; Sohanlal v. Raghunath, AIR 1934 Lah 606. 54 Pukhraj Surana v. Jayer Chand, AIR 1961 S.C. 1655; reversing Pukhraj Surana v. Jayer Chand, AIR 1957 Raj 47. 55 Mallappa v. Malum Naga Chetty, ILR 42 Mad 41(FB) : AIR 1919 Mad 833. 56 Jadavrai Lalji v. Jadvji Bapubhai, AIR 1951 Kutch 91. 57 Rupan Devi v. Jamuna Devi, 2002 AIHC 4356, 4357, para 9 (Jhar). 58 Ganda Singh v. Bhan, AIR 1923 Lah 310. 59 Shriram Sardarmal v. Gourishankar, AIR 1961 Bom 136.

13. AT THE HEARING The Privy Council, in Madhusudan v. Chandrabati, 60held that the statement or the notes of the presiding judge at the trial, whether it be in a criminal or civil case, are conclusive as to what had taken place at the trial; neither the affidavits of by-standers nor of jurors, nor the notes of the counsel, nor of shorthand writers are admissible, to controvert the notes or the statement of the judge. 61 Where the parties, counsel admitted the copy of the sale deed of his client, it was held that there was no necessity to summon the original sale deed, or to seek permission of the court to lead secondary evidence to make it admissible in evidence.62 60 AIR 1917 PC 30. 61 R v. Pestonji, (1873) 10 Bom H.C.R. 75; Venkatesayya v. Md. Ghouse, AIR 1944 Mad 450; Nagabhushanam v. Jagganaiakalu, 49 M.L.J. 671 : AIR 1925 Mad 1031. 62 Bhagawan Singh v. Kalu, (1978) 2 Punj 15.

14. ADMISSION IN CIVIL CASES An admission made by a party to the suit in an earlier proceeding is admissible as against him. Such an admission being relevant fact, the courts below are entitled to take note thereof for arriving at a decision on the basis thereof together with other materials brought on record by the parties. Once a party to the suit makes an admission, the same can be taken in aid, for determination of the issue having regard to the provisions of Section 58 of the Evidence Act, 1872. 63An admission made in a pleading is not to be treated in the same manner as an admission in a document. 64Admissions by the petitioner in the pleadings are admissible against him proprio vigore (by its own force). Even an amendment of pleadings could not be permitted, if thereby the petitioner made an attempt to get rid of his admission.65A certified copy of a written statement filed in earlier case and admissions made therein by the party were held to be admissible in evidence under this section in subsequent proceedings.66A categorical admission cannot be resiled from but, in a given case, it may be explained or clarified. Offering explanation in regard to an admission or explaining away the same, however, would depend upon the nature and character thereof. It may be that a defendant is entitled to take an alternative plea. Such alternative pleas, however, cannot be mutually destructive of each other. An explanation can be offered provided there is any scope therefor. A clarification may be made where the same is needed.67When an allegation of fact, made in the plaint, is not denied in a written statement specifically or by necessary implication or is not stated to have been admitted, such a pleading will constitute an implied admission in a judicial proceeding of civil nature. This does not, however, mean that an implied admission must necessarily occur in a judicial proceeding, for it is possible to make an implied admission, otherwise than in judicial proceeding, in terms of the provisions of the Evidence Act . Whether there is an implied admission or not, is, usually, a question of

37

fact or may, in a given case, be a mixed question of fact and law. An express admission is one which is specifically made, either in judicial proceeding or otherwise, in accordance with the provisions of the Evidence Act. However, in order to determine if an admission has been made in a written statement, the written statement has to be read as a whole.68Even an implied admission, made in a written statement, is binding on the party making the admission. Such admissions constitute waiver of proof and cannot be allowed to be withdrawn by way of amendment to the written statement, particularly when the admission seeks to displace a plaintiff from the admission made by the defendant. In a given case, when the counsel's default leads to an implied or express admission, the remedy of the defendant does not lie in withdrawing the admission by making amendment in the written statement but in making out a case for the court to exercise its power and insist upon the plaintiff to prove his case notwithstanding the admission.69Where the opposite party admitted the fact that there was a regrant order in favour of defendant, the Court could not go to admissibility of the document, it being a xerox copy of the order, as the admitted facts need not be proved. 70Admission on the part of authorities in the counter affidavit that half portion of land was planted and about half portion was left without any cultivation, would not be construed that other portion was admitted to be not forest.71Failure to prove the defence does not amount to an admission. 72 Amendment in pleading being procedural in nature, the same should be liberally granted but as in all other cases while exercising discretion by a court of law, the same shall be done judiciously. 73 If a plea which was relevant for the purpose of maintaining a suit had not been specifically traversed, the court was entitled to draw an inference that the same had been admitted and hence, in terms of Section 58 need not be proved.74 63 Thimmappa Rai v. Ramanna Rai, (2007) 14 SCC 63, 70-71 (para 23). 64 Gautam Sarup v. Leela Jetly, (2008) 7 SCC 85, 89 (para 14). 65 Sangramsingh P. Gaekwad v. Shantadevi P. Gaekwad, AIR 2005 SC 809 : (2005) 11 SCC 314. See also Gautam Sarup v. Leela Jetly, (2008) 7 SCC 85, 89 (para 14); National Insurance Company Limited v. Rattani, (2009) 2 SCC 75, 79 (para 16); Vimal Chand Ghevarchand Jain v. Ramakant Eknath Jadoo, (2009) 5 SCC 713, 727 (para 25), following Ranganayakamma v. K.S. Prakash, (2008) 15 SCC 673. 66 Raman Pillai Krishna Pillai v. Kumaran Parameswaran, AIR 2002 Ker 133, 140 relied on Nagindas v. Dalpatram, AIR 1974 SC 471. See also Fomento Resorts and Hotels Limited v. Minguel Martins, (2009) 3 SCC 571, 613 (para 49); Budhu v. Tulsi, AIR 2009 (NOC) 1840(HP) . 67 Gautam Sarup v. Leela Jetly, (2008) 7 SCC 85, 94 (paras 28-29), following Modi Spg. & Wvg. Mills Co.Ltd., v. Lodha Ram & Co., (1976) 4 SCC 320 and Union of India v. Pramod Gupta, (2005) 12 SCC 1. 68 Uttam Chand Kothari v. Gauri Shankar Jain, AIR 2007 Gau 20, 24 (para 15). 69 Uttam Chand Kothari v. Gauri Shankar Jain, AIR 2007 Gau 20, 30 (paras 33 and 35). 70 Raghavendra Rao v. M. Veeraven Katrao, 2002 AIHC 3233, 3234, para 8 (Kant). See also Bhagwati Tiwari v. Makhanlal Yadav, AIR 2008 (NOC) 1557(M.P) . 71 Ammarukunhi Amma v. Sate of Kerala, AIR 2003 Ker 33, 38. 72 Manager, Reserve Bank of India v. S. Mani, (2005) 5 SCC 100, 111 (para 19) : AIR 2005 SC 2179. 73 Gautam Sarup v. Leela Jetly, (2008) 7 SCC 85, 94 (para 30). 74 M. Venkataramana Hebbar v. M. Rajagopal Hebbar, (2007) 6 SCC 401, 406 (para 13).

15. ADMISSION IN CRIMINAL CASES In STEPHEN'S DIGEST (Art. 60) it is stated: "The present section appears to allow an accused person to admit at the trial such facts as he pleases to admit." The Madras High Court held that, except the plea of guilty by the accused, other admissions dispensing with proof are not allowed in the

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criminal trial.75It is not in accordance with the usual practice to accept a plea of guilt which would have the natural consequence of a sentence of death on the accused. 76 Admissions or consent of an advocate for dispensing with proof are not binding on the accused, to his prejudice.77In a criminal case, the lawyer has no implied authority to make admissions against the accused, though the accused is entitled to have the benefit of the plea set-up by the lawyer. 78 Any admission by an accused about the execution of a document, whether filed in the form of a written statement, or in answer to the question under Section 342,Cr. P.C. (old = 313 New Cr. P.C.) cannot be utilised to fill up a gap in the evidence of the prosecution, and it would not relieve it of the necessity of proving the document.79 However, in a case of detaining a married woman with a criminal intent, it was held that the statement of the accused under Section 313,Cr.P.C., admitting that the woman was married, can be taken into consideration underSection 58.80Where the age of the accused has been stated to be 16 years in his statement and Investigating Officer has also mentioned the age of the accused as 16 years and complaint has admitted in her evidence the age of the accused at the time of incident about 15-16 years, in absence of any medical data, the age of the accused was held to be taken as below sixteen years as admitted by the complainant herself and it was not needed to be proved. 81 75 Raja Gopala v. Tirupathia Pillai, AIR 1926 Mad 426. 76 Hasaruddin v. Emperor, AIR 1928 Cal 775; Laxmaya v. R, 19 Bom LR 3561. 77 Bansilal v. R, AIR 1928 Bom 241; In re : Rangappa,(1936) 59 Mad 349 : (proof of postmortem report). 78 Ngaba Sein v. R, AIR 1936 Rang 1; Trikam v. State, AIR 1969 Goa 69. 79 Mohideen v. Emperor, (1904) 27 Mad 238; Emperor v. Chinnappayan, (1906) 29 Mad 372; Jeremiah v. Yas, (1912) 36 Mad 457; Basanta v. Queen-Empress, ILR 26 Cal 49; Hardevi Malkani v. State, AIR 1969 All 423; Aunavi v. State, AIR 1961 Mad 851; S.C. Mitter v. State, AIR 1950 Cal 435. 80 Sonu Pujari v. Arjun Bissoyi, (1980) 1 Cut 251. 81 Pran Singh v. State of A.P., 2003 CrLJ 2721, 2725, para 15 (All) : 2003 All LJ 1380 : 2003 (46) All Cr C 531 : 2003 (1) All Cr R 488.

16. COURT'S DISCRETION [PROVISO] The proviso to this section gives ample power to the court to exercise its discretion, requiring the parties to prove these facts though they are admitted in the proceeding. When the court is of the opinion that an admission was obtained by fraud or on any other ground, it can, in the exercise of its discretion, under the proviso, require the proof of the facts otherwise than by admission. 82 In a suit for ejectment, the defendant did not deny the title of the plaintiff, but stated that he was not liable to be ejected. The trial court did not frame any issue but ordered ejectment. The High Court, on appeal, held that, in spite of the law of non-traverse, in view of the proviso to Order VIII, Rule 5, C.P.C., it is the duty of the court to determine the title of the plaintiff by framing an issue, to meet the ends of justice, and remanded the case to the lower court. 83 82 Oriental Life Assurance Co. v. Narasimha, ILR 25M 183 at 205 : 11 M.L.J. 379; See also Muniyappa v. Yellachami, 1918 Mad, W.N. 853. 83 Biswanath Das v. Debiprosad Paul, AIR 1978 Cal 533; following Satyes v. Manmohini, AIR 1914 Cal 842.

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Ratanlal & Dhirajlal: Law of Evidence, Updated 23rd Edition/THE INDIAN EVIDENCE ACT (ACT 1 OF 1872)/PART II ON PROOF/CHAPTER IV OF ORAL EVIDENCE/S. 59.

CHAPTER IV OF ORAL EVIDENCE S. 59. Proof of facts by oral evidence. All facts, except the1 [contents of documents or electronic records], may be proved by oral evidence.

1. THE INFORMATION TECHNOLOGY ACT , 2000 PROOF OF FACTS BY ORAL EVIDENCE The insertion of the words 'electronic records' by the above mentioned Act puts them in the purview of exceptions to be proved by oral evidence. 1 For Statement of Objects and Reason, see Gaz. of India, 1868, p. 1574. 1 Substituted by the Information Technology Act, 2000, S. 92 Sch. II (w.e.f. 17-10-2000).

2. PRINCIPLE Oral evidence has been defined by the Act to be all statements which the Court permits or requires to be made before it by witnesses in relation to matters of fact under inquiry (Section 3). All facts except the contents of documents may be proved by oral evidence. This section is not happily worded. Contents of documents may be proved by oral evidence under certain circumstances, viz., when evidence of their contents is admissible as secondary evidence. Where a fact may be proved by oral evidence, it is not necessary that the statement of the witness should be oral. Any method of communicating thought, which the circumstances of the case or the physical conditions of the witness demand may, in the discretion of the court, be employed. Thus a deaf-mute may testify by signs, by writing, or through an interpreter. So where a dying woman who was conscious, but without power of articulation, was asked whether the defendant was her assailant, and, if so, to squeeze the hand of the questioner, the question and the fact of her affirmative pressure were held admissible in evidence.2A woman whose throat had been cut was unable to speak owing to the nature of the wound. She was fully conscious and able to understand what was said to her, to make signs and to nod her head slightly. She was asked whether it was the accused who had cut her throat, and she nodded her head. She died afterwards. It was held that evidence as to signs made in answer to questions put to her was admissible.3 Oral evidence, if worthy of credit, is sufficient, without documentary evidence, to prove a fact or title. However, documentary evidence will prevail over oral evidence. 4 It is a cardinal rule of evidence that, where written documents exist, they must be produced, as being the best evidence of their own contents.5Where a lease was not reduced to writing, oral evidence to prove the same was held to be a primary evidence.6 Where oral testimony is conflicting, much greater credence is to be given to men's act s than to their alleged words, which are so easily mistaken or misrepresented. 7Where there was contradictory oral

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evidence as to who took the deceased to hospital, the accused was given benefit of doubt. 8The whole testimony of the witness, swearing in favour of one party at one time and after some time in favour of the other party in the same proceedings, was liable to be rejected. 9In cases of contradictions in the oral testimony of witnesses, the court has to look to the documentary evidence, in order to see on which side the truth lies.10 Before acting upon the evidence of a witness, the credibility of the witness has to be tested, both intrinsically and extrinsically, as perjury is rampant.11 When the question is about the service of a notice, proof of its contents, along with proof of its issue and service, has to be established. About the contents of the notice, there cannot be any oral evidence. They can only be proved either by primary evidence or by adducing secondary evidence under Section 61. Under Section 63(5), secondary evidence can be given by oral accounts of the contents of the notice by some person who had himself seen it. So far as the proof of issue and service are concerned, those facts can be proved by oral evidence. 12 Where goods sent by rail at owners' risk rate, were short delivered, it was held that to show short delivery the consignee has to produce a certificate obtained under Sections 74-C(2) of the Railways Act, and the oral statement to that effect is inadmissible. 13Oral evidence regarding possession was not relied upon where the documentary evidence and the written statement of the Tahsildar showed that the petitioners were never in continuous possession of the land in dispute. 14When the entire case is based on a construction of insurance policy, the question of adducting of any oral evidence would be irrelevant.15 The word 'contents' in Sections 59 and 61, leaves no room for doubt that, when a document is proved in a manner laid down in the Evidence Act, the contents of that document are also proved. To require that the writer of the document should be called to give evidence, is to import in regard to documentary evidence, a rule laid down in Section 60 which applies only to oral evidence. However, when the contents of a document contain some matter which may be hearsay, that matter cannot be said to be "contents of the document"16 In a case, the question was whether rexine bearing railway marks seized from the accused was of the railway stores; it was held that the seized rexine was a 'document' within Section 59 of the Evidence Act, and that proof of it by secondary evidence was governed by Sections 64 and 65 of the Act . 17 The effect of Sections 59, 61, 63(5) and 65 read together, is that the contents of a lost document may be proved by oral evidence, when such evidence is admissible as secondary evidence. 18 Where a partition, being unregistered, was inadmissible in evidence, the oral evidence adduced by the party to prove the extent of its holding has to be considered, moreso when the suit was not based on such document.19In a case, the earliest khasra records clearly showed the nature of possession of the party as a mortgagee. Even though the mortgage deed which was unregistered and being in possession of the mortgagee, could not be produced by the mortgagor, it was held that oral evidence could be admitted for collateral purpose of ascertaining the nature of possession of the party shown as a mortgagee.20 Where the two witnesses last saw the deceased boy with the accused but they did not disclose the said fact to anyone for a few days when the entire village was searching for the missing boy, it was held that the evidence of the last seen was doubtful and could not be believed. 21 2 Queen-Empress v. Abdullah, (1885) 7 All 385 FB 3 Chandrasekera alias Alisandiri v. The King, AIR 1937 A.C. 220, 39 Bom LR 359; For the meaning of 'Evidence', 'Proved' see commentary on Section 3 of this Act. 4 Y.S. Nagaraja Shetty v. M.N. Krishna, 1996 AIHC 2904 (para 8) (Kant). 5 Dinomoyi Debi v. Roy Luchmiput Singh, (1879) 7 I.A.8. 6 Kashiram v. State, AIR 1996 MP 246 (para 10). 7 Meer Usudulah v. Mussumat Beeby Imaman, (1836) 1 MIA 19, 42, 43.

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8 Ravirajan v. State, 1998 CrLJ 3086 (para 6) (Mad). 9 Vaidhya Bal Krishan v. Dist. Magistrate, Jodhpur, 1998 AIHC 3260 (para 19) (Raj). 10 Ramdhandas v. Ramkishondas, AIR 1946 PC 178; Regarding appreciation of oral evidence see commentary on Section 3. 11 Mohanth Bhagawan v. G.N. Bhagat, AIR 1972 SC 814. 12 Arunkumar v. Union of India, AIR 1964 Pat 338; a case of notice under Section 7. Administration of Evaquee Property Act of 1950. 13 Union of India v. Ramkumar Agarwala, AIR 1967 Pat 447. See also Appukkuttan v. State of Kerala, (2005) 10 SCC 171, 173 (para 7). 14 Mohammad Rahim v. State of Rajasthan, 2000 AIHC 1533 (para 7) (Raj). 15 Peacock Plywood (P) Ltd. v. Oriental Insurance Co. Ltd., (2006) 12 SCC 673, 696 (para 70). 16 Bhima Tima Dhotre v. The Pioneer Chemical Co., AIR 1968 Mah LJ 879 : (1968) 70 Bom LR 683. 17 A.K. Yadav v. State of Bihar, AIR 1973 CrLJ 756(Pat) . 18 Fuljari Lal v. Ramsarup, AIR 1953 MB 177. 19 Hriday Narain Choudhary v. Shyam Kishore Singh, AIR 2002 SC 2526 (para 9). 20 Virendra Nath v. Mohd Jamil, (2004) 6 SCC 140, 143 (para 9) : AIR 2004 SC 3856. 21 Dashrath Prasad Mehta v. The State of Bihar, 2007 CrLJ 152(NOC) (Jhar) : 2007 (1) AIR Jhar R 425.

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Ratanlal & Dhirajlal: Law of Evidence, Updated 23rd Edition/THE INDIAN EVIDENCE ACT (ACT 1 OF 1872)/PART II ON PROOF/CHAPTER IV OF ORAL EVIDENCE/S. 60.

CHAPTER IV OF ORAL EVIDENCE S. 60. Oral evidence must be direct. Oral evidence must, in all cases whatever, be direct; that is to say--if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it; if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it; if it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner; if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds: Providedthat the opinions of experts expressed in any treatise commonly offered for sale, and the grounds on which such opinions are held, may be proved by the production of such treatises if the author is dead or cannot be found, or has become incapable of giving evidence, or cannot be called as a witness without an amount of delay or expense which the Court regards as unreasonable: Provided alsothat, if oral evidence refers to the existence or condition of any material thing other than a document, the Court may, if it thinks fit, require the production of such material thing for its inspection.

1. PRINCIPLE AND SCOPE This section states that oral evidence must be direct in all cases. What is direct evidence is also indicated by saying that if the evidence refers to a fact which could be seen, it must be the evidence of a witness who says he saw it, and, if the evidence refers to a fact which could be heard, it must be the evidence of a witness who says he heard it. Similarly, in regard to a fact that can be perceived by any other sense or manner, the witness should say that he perceived it. If the evidence refers to an opinion, he should say that he holds that opinion on certain grounds. In the case of opinion of experts in any treatise, it can be proved by production of that treatise. If the evidence refers to existence of any material things, other than a document, the Court, if it thinks fit, may require the production of such material thing for its inspection. This section, subject to the proviso, excludes opinions given second-hand. The use of the word 'must' in the first clause of the section imposes a duty on the court to exclude all oral evidence that is not 'direct', whether the party against whom it is tendered objects or not. 22. The word 'direct' is opposed to mediate or derivative or 'hearsay'. The evidence of the Investigating Officer who conducted the recovery of the dead body from the well was held to be direct evidence so far as such recovery was concerned and his evidence could not be disbelieved in absence of any motive to create a false evidence against the accused.23 Where the documentary evidence which could have been available was not produced, the plaintiff could not rest his case on oral evidence which was against the record produced by the

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defendants.24Where a plaintiff proved his case through his son who did not produce the general power of attorney executive by his father in his favour, the son's evidence was rejected 25 and in a case before Custodian General under J&K Evacuee (Administration of Property) Act (6 of 2006 Smvt), it was held that the authorities of custodian could not reject the application merely on the ground that the original document was not filed before them instead of giving opportunity to file original document or to prove the photo copy by leading secondary evidence.26The contents of the post-mortem report could be proved by the oral evidence of the doctor who conducted the autopsy over the dead body and not by examining the compounder of the hospital who was not present when the doctor conducted the postmortem or when he signed the report and had no knowledge about the opinion expressed therein by the doctor.27 This section is based on the principles of 'Best Evidence'. It is a cardinal rule of evidence that the best available evidence should be brought before the court. Sections 60, 64 and 91 of the Evidence Act are based on this rule.28The court is not empowered to compel either the prosecution or the defence to examine any particular witness or witnesses on their side. This must be left to the parties. But in weighing evidence, the court can take note of the fact that the best available evidence has not been given and draw an adverse inference.29 22 Stoke's Anglo-Indian Codes, Vol. II, 889, f. note 7. 23 Radha Kant Yadav v. State of Jharkhand, 2003 CrLJ NOC 13(Jhar) : 2003 AIR Jhar HCR 5 : 2003 (1) DMC 7 : 2002 (3) East Cr C 221 : 2002 (3) JLJR 135. 24 Banarsi Das v. Brig. Maharaja Sukhjit Singh, AIR 1998 SC 179. 25 A.M. Hussein v. M.M. Manginmani, 2001 AIHC 3216 (para 8) (Kant). 26 Gulrez Qurashi v. Custodian General, AIR 2004 J&K 93, 101 (para 15) : 2004 (1) J&K 359. 27 Sowam Kisku v. The State of Bihar,(Now Jharkhand), 2006 CrLJ 2526, 2527 (paras 7-9) (Jhar). 28 In re : Vadlamudi Kutumbarao,AIR 1957 A.P. 595. See also Pradeep Kumar Agarwal v. State, 1995 CrLJ 76 (para 3) (Ori); Zahira Habibullah Sheikh (5) v. State of Gujarat (2006) 3 SCC 374, 392-93 (para 28); Rama Paswan v. State of Jharkhand, 2007 CrLJ 2750, 2751-52 (para 9) (SC); Daulat Ram v. Gian Singh, AIR 2009 (NOC) 1265(HP) . 29 Rama Paswan v. State of Jharkhand, 2007 CrLJ 2750, 2751-52 (para 9) (SC).

2. HEARSAY The term 'hearsay' is used with reference to what is 'done or written', as well as to what is 'spoken', and, in its legal sense, it denotes that kind of evidence which does not derive its value solely from the credit given to the witness himself, but which rests also, in part, on the veracity and competence of some other person. That this species of evidence is not given upon oath, that it cannot be tested by cross- examination, and that, in many cases, it supposes some better testimony which might be adduced in the particular case, are not the sole grounds for its exclusion. Its tendency to protract legal investigations to an embarrassing and dangerous length, its intrinsic weakness, its incompetency to satisfy the mind of the existence of the fact, and the frauds which may be practised with impunity under its cover, combine to support the rule that hearsay evidence is "inadmissible". 30 All hearsay statement is not admissible. There is distinction between proving the factum of statement and proving the truth of statement. It is admissible if such evidence proposed to establish only the factum of statement made by other person and not the truth of the statement. 31No value can be attached to hearsay evidence. It could not detract or discredit the ocular evidence. 32 The word 'hearsay' is used in various senses. Sometimes it means whatever a person is heard to say; sometimes it means whatever a person declares on information given by some one else; sometimes it is treated as nearly synonymous with 'irrelevant'.33 The Law in England is stated by PHIPSONas follows:--(15th Edn. (2000), page 629, para 25-01) : "It was a fundamental rule of evidence at common law that hearsay evidence is inadmissible. The rule

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has now been virtually abolished for civil proceedings by the Civil Evidence Act, 1995, and even in criminal cases, there are now many statutory exceptions. There remain many situations where hearsay evidence is inadmissible, and many others where, though it is admissible, the question of whether or not hearsay is relevant to determine whether procedural preconditions for its admission have been satisfied or to the weight to be attributed to it. It therefore remains of the first importance to see what evidence is prima facie inadmissible on the ground that it infringes the hearsay rule." (26-06, page 633) : "No single principle can be assigned as having operated to exclude hearsay generally, or from any ascertainable date". "In more recent times, rejection, even where such evidence was the "best" obtainable has been based on its relative untrustworthiness for judicial purposes, owing to (1) the irresponsibility of the original declarant, whose statements were made neither on oath, nor subject to cross-examination; (2) the depreciation of truth in the process of repetition; and (3) the opportunities for fraud its admission would open; to which are sometimes added (4) the tendency of such evidence to protract legal inquiries; and (5) to encourage the substitution of weaker for stronger proofs. The absence of an oath and of crossexamination, however, appear to be the only essential objections; even the production of the witness being valuable mainly as a means of ensuring cross-examination, and only secondarily as affording an opportunity for observing demeanour. The latter advantage, indeed, is in many cases waived without entailing the rejection of the evidence."34 The Select Committee in their Report observed: "This provision, taken in connection with the provisions of relevancy contained in Chap. II will, we hope, set the whole doctrine of hearsay in a perfectly plain light, for their joint effect is that:-- (1) the sayings and doings of third persons are, as a rule, irrelevant, so that no proof of them can be admitted; (2) in some excepted cases they are relevant; (3) every act done or spoken which is relevant on any ground must (if proved by oral evidence) be proved by someone who saw it with his own eyes or heard it with his own ears". Even the domestic tribunals have to exclude hearsay evidence though there is no necessity for them to follow the rules of evidence.35 "Derivative or second-hand proofs are not receivable as evidence in cause... Instead of stating as maxim that the law requires all evidence to be given on oath, we should always say that the law requires all evidence to be given under personal responsibility i.e., every witness must give his testimony, under such circumstances as expose him to all the penalties of falsehood, which may be inflicted by any of the sanctions of truth..... The true principle therefore appears to be this--that all second-hand evidence, whether of the contents of a document or of the language of a third person, which is not connected by responsible testimony with the party against whom it is offered, is to be rejected".36 Derivative or second-hand evidence is excluded owing to its infirmity as compared with its original source. Evidence of a statement made to a witness by a person, who was not called as a witness, may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish what is contained in the statement. It is admissible if such evidence proposed is to establish the factum of the statement and not the truth of the statement as there is a distinction between proving the factum of a statement and proving the truth of the statement. 37 Where a witness told a material fact to another, but himself resiled from it in the witness-box, narration of the other was rejected as hearsay.38A married woman was alleged to have committed suicide. Evidence of her father was that her neighbours, who turned hostile, had told him that some sound of quarrel was coming from the house of the deceased on the fateful night. Such evidence was ruled out as hearsay. But the fact that the neighbours gave him some information which prompted him to rush to the police and they did not deny to have given him some information or having met him, such part of evidence would not be hit by the rule of exclusion of hearsay evidence. 39 Similarly, where the question was whether J was driving the bus at a particular time, no eye-witness was produced, and the witnesses were telling the court what others had told them, their evidence was not allowed.40A witness was not able to depose as to the factum of second marriage or that the

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defendant was living with another girl as man and wife; the court held that the evidence fell short of the requirements of Section 60.41An adoption which was neither ancient, nor there was an eye-witness or documentary account of it, the court said that the proof of adoption failed. 42The accused was charged with buggery and murder of a 12-year-old boy. His defence was that he had engaged in an act of intercourse with the boy's consent and then left him unharmed, but he was murdered shortly afterwards by another person M, whom he described and also stated that M had been telling about this to others. The evidence was rejected as hearsay. The court of appeal stated the question of law as to whether a confession by a third person could be cited by the accused; without considering the question, their Lordships upheld the exclusion of the evidence. 43 Statement of witnesses, based on information received from others, is inadmissible. 44Where the testimony of the witness is entirely hearsay and on some matters, it was hearsay of hearsay, it was held not admissible.45The respondent before the Supreme Court deposed to what transpired between one Saxena and the Superintendent Engineer. The Supreme Court omitted this part of respondents evidence from consideration as hearsay. 46 Regarding a map drawn by a draftsman in regard to a scene of occurrence, the Supreme Court held that the evidence of the draftsman is not hearsay when the eye-witnesses were called and they stated that they showed the different spots to the draftsman, and insofar as the distances were concerned, the draftsman himself had measured them and he swore in the witness-box that the distances shown in the map were correct.47Where an officer of the bank, who had no personal knowledge of the transaction in question, was deposing on the basis of material on record, his evidence could not be from his knowledge and necessarily had to be hearsay. 48A power of attorney holder may appear as a witness to depose on behalf of his principal and his deposition will be read in evidence on record. 49A statement by a prosecution witness A was made to another witness B. A was examined earlier and B was examined later. When A was examined, he was not asked about the statement made by him to B, but B was made to say about the statement. A's statement to B was sought to be made use of by the prosecution. The Supreme Court held that, in the absence of an opportunity to A to explain his statement it was inadmissible.50Where an informant, who informed the police that certain accused would be following, in a taxi, a truck carrying prohibited liquor and that 'P' was manager of the truck, was not examined, it was held that the evidence of a police officer who spoke to the receipt of information was inadmissible.51Where the evidence was that, after the occurrence of dacoity, the police patrol went round and ascertained whether the accused was in a house, it was held to be hearsay. 52A statement contained in a site map prepared by an investigating officer was held inadmissible. 53The Supreme Court has also held similarly in Girish Yadav v. State of M.P. 54A history sheet maintained by the police in respect of a man's character is hearsay evidence, as it is based on information and is admissible.55A and B were tried separately, in the trial of A, a witness deposed that B told him that A had stabbed the deceased. It was held that as B was not tried along with A, B should have been produced as a witness. In the absence of B's evidence, the statement of the witness was only hearsay.56 The statement of a witness that the deceased had told him of a rumour that Rs. 50,000 was offered by one R to kill the deceased, is hearsay against R; it is not also admissible as a dying declaration, as it was not as to the cause of his death or any circumstance which resulted in his death. 57Hearsay evidence about the loss of a document is not admissible. 58Where a conductor was charged for misappropriation of amount collected from passengers without issuing tickets, any evidence let in without examining the passengers, would be hearsay evidence. 59The evidence of A relating what M told N which had been passed on by N to A, is hearsay, and therefore, inadmissible. 60Where the witnesses, who had no manner of personal knowledge regarding certain matters stated that the deceased had told them about those matters their evidence is only hearsay evidence. 61Where a boy was taken in adoption soon after his birth, his evidence as to the ceremony of giving and taking is hearsay evidence.62Where the question of relationship of one person with another is in issue and the witnesses produced to prove that relationship neither speak from personal knowledge nor disclose their source of knowledge about such relationship, their evidence is merely hearsay and cannot establish the disputed relationship.63Where the plaintiff deposed that his deceased mother gave the names in respect of the family pedigree, the statement was held inadmissible as it was hearsay and was also not covered by Section 32(5).64

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There is no rule against including hearsay in an FIR to the police. 65The rule of exclusion of hearsay evidence is relaxed in cases where marriage or relationship of one person to another has to be proved.66 Regarding family relationship, a witness deposed that he belonged to the village of the plaintiff's maternal grand-father and saw the plaintiff always accompanying his mother to that village; it was held that such evidence was admissible as it was from the personal knowledge of the witness. 67 Where the question was whether a woman was a prostitute, running a brothel, it was held it need not necessarily be proved by direct evidence, that is, by the testimony of persons who had direct dealing with the woman.68 The statement about the date of expiry given by the manufacturer on the drug is at best a statement about a future occurrence and such a statement can never be based on the personal knowledge as required by the Section 60 and hence, is inadmissible under this section. 69Where by way of a contradiction the hostile witness stated in the cross-examination that he had stated before the police that the people of the locality knew that the accused was a hired contract killer, his statement was held to be not a substantive evidence.70The Section 60 of the Evidence Act requires that the oral evidence must be direct. Where the testimony of the witness is entirely hearsay and on some matters hearsay of hearsay, it cannot be admitted in evidence. Where a witness gives evidence that he received information from other person and that person does not say about the same, such evidence would be inadmissible in evidence, it being hearsay. 71The hearsay evidence of the witnesses cannot be relied upon.72 Both the accused, before leaving the hotel, they were staying in, asked the waiter early in the morning to take care of their uncle who was in the room and they would return soon and on opening the room he was found dead. The hotel manager stated in his statement as to what he had learnt from the waiter, his evidence was hearsay evidence.73The witness claimed to have heard that dacoity was committed in the house of the deceased. It was held that, it being a hearsay, no value could be attached to his evidence.74Where main witness who informed the other witnesses about the incident was declared hostile, the evidence of the other witnesses based on the information of the said hostile witness was held to be inadmissible in evidence, it being hit by law of hearsay. 75The Statement of the wife as to what her husband told her is merely hearsay and the same is not admissible in evidence as statement of her husband.76Where the witnesses deposed that the father of the accused had told them that the accused had caused the death of the deceased but the father of the accused denied that he had seen the accused causing injury to the deceased and said that had told the same to the said witnesses, the evidence of such witnesses was held to be of no value, it being hearsay evidence.77Where an approver's statement in a corruption case showed that he was not a member of conspirators' meeting and question of money was never an item for discussion, so he was not a conspirator and his evidence was held to be barred under Section 60, of the Act as it was only hearsay.78Where the accused gave a wrong information as to the cause of death of the deceased, his wife, to his father who informed the Sarpanch of the village who informed the police on telephone, the statement of the informant father, being hit by rule against hearsay, was not admissible in evidence.79Where the statement of the witness before the court was made on the basis of what she had learnt from her husband and she had no direct knowledge thereabout (here sale transaction), her statement was held to be inadmissible in evidence.80 Newspaper items by themselves are not evidence of the contents thereof. They are only hearsay evidence unless proved by examining the reporter.81Similar is the position of the testimony of Investigating Officer not disclosing the source of the secret information. Such information cannot be made basis to prove the circumstances against the accused. 82 A bus conductor was found to have collected money from the passengers but did not issue the tickets against the said collections. The statement of a passenger, who had paid excess money, to the Checking Officer, could not be regarded as hearsay evidence. 83 Hearsay evidence, when admissible?--Hearsay evidence, when it corroborates the substantive evidence, would be admissible. In the instant case, the person who reached the spot immediately after the occurrence, was informed about the occurrence by the eye-witnesses. The said person sent

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information to the police. His evidence about such information was held to be admissible as it corroborated the evidence of the eye-witnesses.84 30 TAYLOR, 12th Edn., S. 570, p. 363. 31 Ashok Kumar Rout v. State of Bihar, 2006 CrLJ 3362, 3364 (para 13) (Pat). See also State of Bihar v. Raj Kumar Mahto, 2006 CrLJ 4666, 4668 (para 13) (Pat). 32 Rajendra Prabhu Chikane v. State of Maharashtra, (2007) 13 SCC 511, 517 (para 24). 33 STEPHEN'SIntroduction, J.D. Jain v. The Manager of State Bank of India, AIR 1982 SC 673. 34 PHIPSON 13th Edn., p. 332 (para 16- 06). 35 State of Haryana v. Ramachander, AIR 1976 Punj 381(FB) . 36 BEST, 12th Edn., ss. 493, 494, pp. 415, 416. 37 J.D. Jain v. Management, State Bank of India, AIR 1982 SC 673; Delhi Municipality v. P.O. Labour Court, (1972) 2 Del 653; State of M.P. v. Gangabai, ILR 1969 MP 1014 : AIR 1980 SC 818. 38 Yasin Gulam Haider v. State of Maharashtra, (1979) 4 SCC 600; Vijender v. State of Delhi, (1997) 6 SCC 171 : 1997 SCC 857(Cri) . 39 Balram Prasad Agrawal v. State of Bihar, AIR 1997 SC 1830 : 1997 CrLJ 1640. The Court referred to J.D. Jain v. Management of State Bank of India, AIR 1982 SC 673 and Subramaniam v. Public Prosecutor, (1956) 1 WLR 965. 40 Jaddoo Singh v. Malti Devi, AIR 1983 All 87(DB) . See also Aman Deep v. Sukhan Devi, AIR 2008 (NOC) 723(HP) ; Zarinabi Shamim Sultana, AIR 2008 (NOC) 2632(Bom) : 2008 (4) AIR Bom R 301. 41 Laxmi Sahnami v. Maheshwar Sahu, AIR 1985 Ori 11. 42 Sauney Majhi v. Duli Dei, AIR 1985 Ori 22(DB) . 43 R v. Blastland, (1985) 2 All ER 1095 noted in All ER Annual Review 1985. 44 1964 All WR 481(HC) . 45 Chakrapani v. Chandoo, AIR 1959 MP 84. 46 Laliteshwar Prasad v. Bateshwar Prasad, (1966) 2 SCJ 241, 247 : AIR 1966 SC 580. 47 Santa Singh v. State of Punjab, AIR 1956 SC 526. 48 S.R. Ramaraj v. Special Court, Bombay, AIR 2003 SC 3039 (para 9) : (2003) 7 SCC 175 : 2003 CrLJ 3863. 49 Raees Ahmad v. Shrigopal , Prakash, 2002 AIHC 2152, 2156 (para 15) (Raj), relying on Kailashi Devi v. Matadeen Agarwal, AIR 2001 Raj 306. 50 Awadh Behari Sharma v. State of M.P., AIR 1956 SC 738. 51 B. Gangaram v. State of Gujarat, AIR 1983 SC 906 : 1983 CrLJ 1276; See also Nihal Singh v. Rao Birendra Singh, (1970) 3 SCC 239. 52 Md. Jamsher Tadvi v. State, AIR 1956 Bom 186. 53 Satya v. State, AIR 1958 All 746. 54 1996 CrLJ 2159 (para 14) (SC) : AIR 1996 SC 3098, following Cri Appeal No. 489 of 1985, Dt. 12-3-1996 (SC). 55 K.K. Das v. State, AIR 1959 Cal 342. 56 In re : Krishnan,AIR 1953 Mad 400. 57 Ramakrishna Roy v. State, AIR 1952 Cal 231. 58 (1961) 2 Guj. LR 610.

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59 Tarolchansingh v. State of Punjab, 1975 Lab IC 986(Punj) ; (checking inspector's report) Jagroop v. R, AIR 1952 All 276; (enforcement squad inspector's evidence, 60 Amarsingh v. Madanmohan Lal, AIR 1956 Raj 58; Raghunath Devi v. Samad Gashru, AIR 1952 J&K 29; State v. Tapas Kumar, 1985 CrLJ 871. 61 R. Fr. Benedict v. State of Kerala, (1967) 2 Ker 21 : 1967 Mad LJ 569(Cri) . 62 Debi Prasad v. Tribeni Devi, AIR 1970 SC 1286. 63 Jawal Mal v. Achal Das, (1953) 4 Raj 33. 64 Kamalambai v. Srinivasa Odayar, (1968) 2 Mad LJ 487. 65 V.S. Iyer v. State of Kerala, (1967) 1 Ker 640. 66 1969 All WR 579(HC) . 67 Gurnek Singh v. Balbir Singh, 1977 Cur. L.J. 256(Civil) Punj. 68 Seetharamamma v. Sambasiva Rao, AIR 1964 A.P. 400. 69 Dueful Laboratory v. State of Rajasthan, 1998 CrLJ 4534 (para 36) (Raj). 70 Bullu Das v. State of Bihar, (1998) 8 SCC 130. 71 Kirtan Prasad v. State of M.P., 2005 CrLJ 69, 71 (para 23) (MP). 72 Mohan Singh Patel v. State of M.P., 2002 CrLJ 145(A) (MP) : (2001) 4 Crimes 357. 73 Pawan Kumar v. State of Haryana, AIR 2003 SC 2987 (para 10) : (2003) 11 SCC 241 : 2003 CrLJ 3552. See also Sakatar Singh v. State of Haryana, (2004) 11 SCC 291, 298 (para 16) : AIR 2004 SC 2570; Ram Kishan v. State of U.P., (2005) 9 SCC 736, 739 (para 8) : AIR 2004 SC 4678 : 2004 CrLJ 4236. 74 Ram Anup Singh v. State of Bihar, (2002) 6 SCC 686 (para 23) : AIR 2002 SC 3006 : 2002 CrLJ 3927. 75 Badri Govind Bhilala v. State of M.P., 2004 CrLJ 3078, 3079 (para 9) (MP) : 2004 (2) MP HT 408 : 2004 (2) MPLJ 389. 76 Pratap Singh v. State of Punjab, AIR 1964 SC 72, 89 (para 19). 77 Kirtam Prasad v. State of M.P., 2005 CrLJ 69 72 (para 27) (MP). 78 P.V. Narasimha Rao v. State, 2002 CrLJ 2002 CrLJ 2401, 2425 (para 59) (Del) : 2002 (2) Chand LR (Civ & Cri) 35 : 2002 (2) Crimes 304 : 2002 (2) Cur Cr R 193 : 2002 (97) Del LT 452 : 2002 (63) Del Raj 331. 79 State of A.P. v. Patuam Anandan, AIR 2005 SC 764 (para 10) : (2005) 9 SCC 237 : 2005 CrLJ 894. See also Nansingh v. State of M.P., 2008 CrLJ 1795, 1797 (paras 7 and 8); Marudanal Augusti v. State of Kerala, AIR 1980 SC 638 : 1980 CrLJ 446. 80 Subhash Harnarayanji Laddha v. State of Maharashtra, (2006) 12 SCC 545, 551 (para 22). 81 Bargaram Meuri v. Premodhar Bora, (2004) 2 SCC 227, 233 (paras 13 and 14) : AIR 2004 SC 1386. See also Quamarul Islam v. S.K. Kanta, 1994 Supp (3) SCC 5, 27 (para 48) : AIR 1994 SC 1733; Laxmi Raj Shetty v. State of T.N., AIR 1988 SC 1274 : (1988) 3 SCC 319 : 1988 CrLJ 1783 relied in Ramswaroop Bagari v. State of Rajasthan, AIR 2002 Raj 27. See also Samant N. Balakrishan v. George Fernandes, AIR 1969 SC 1201 : (1969) 3 SCC 238. 82 Prakash v. State, 2007 CrLJ 320(NOC) (DB) (Del). 83 Delhi Transport Corporation v. Shyam Lal, AIR 2004 SC 4271 (para 8) : AIR 2004 SC 4271. 84 Mukhtiar Singh v. State of Punjab, AIR 2009 SC 1854, 1857-58 (para 8) : 2009 CrLJ 1744(SC) .

3. GENERAL The expressions 'saw it', 'heard it', and 'perceived it', in clauses 2, 3 and 4 of the section mean 'saw the fact deposed to', 'heard the fact deposed to', and 'perceived the fact deposed to'.

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Where the Dy. Commissioner of Police had not stated that he had not given any direction to the police to register a case against the accused under TADAA and on the contrary, he had expressly stated that the had granted sanction (which was in writing) under the Arms Act and not under TADAA, the provisions of this section could not be invoked.85 85 Mukhtiar Ahmad Ansari v. State (N.C.T. of Delhi), AIR 2005 SC 2804 (paras 27 and 28) : (2005) 5 SCC 258 : 2005 CrLJ 2569.

4. FACTS WHICH COULD BE SEEN Where the question was in respect of a marriage and there was no documentary evidence in support of the alleged marriage, it was held the persons who attended the marriage could give direct evidence.86The statement in the inquest report, which is based on the act ual observation of the witness at the spot, being direct evidence, is clearly admissible under Section 60. 87It has been held that the observation report of the Investigating Officer stating that the floor in bus in question appeared to have been washed, should have been proved like any other document. 88Matters in the inquest report, found by the investigating officer, are not hit by Section 162,Cr. P.C., and are admissible under Sections 60 and 61 of the Act.89Where the question was whether the complainant was an officer in the office of the Food Inspector at the time when he made the complaint, evidence of witnesses that he was the officer at that time is relevant and it would be direct evidence. If that evidence is challenged the order of appointment may be produced.90 The facts mentioned in a Panchanama, which is not a substantive evidence of the facts therein, have to be proved by the testimony on oath of the Panchas, who had seen those facts.91 In order to prove a statement of an eye-witness given to the police, the evidence of the person who recorded the statement is necessary to identify the person who made the statement. 92 What the witness act ually saw and heard as to what a mob was doing and saying, is admissible as direct evidence to prove the nature of the assembly. But his opinion and impression that the assembly appeared to be unlawful is not admissible.93 86 Ma Mi v. Kallander Ammal, AIR 1927 PC 15. 87 Rameshwar Dayal v. State of U.P., AIR 1978 SC 1558. 88 K. Mallikarjuna v. State of A.P., 1995 CrLJ 3100 (para 52) (AP). 89 Rameshwar Patra v. State, (1979) 47 Cut LT 171(DB) . 90 State of Kerala v. U.P. Evadeen, AIR 1971 Ker 193(FB) . 91 Kanbi Bhavan v. Ismail Mamad, AIR 1955 Sau 32. 92 Md. Ishaq Madari v. Emperor, AIR 1942 Lah 59. 93 Jogi Raut v. Emperor, AIR 1928 Pat 98; see also Ganapathi Aiyar v. Sakarayappa Mudliar, AIR 1929 Mad 187.

5. FACTS WHICH COULD BE HEARD A written information is not evidence. If it is desired to make the matter contained in it evidence, a person who can directly testify to such matter must be produced. 1A news item, without any further proof of what had actually happened, through witnesses, is of no value. It is at best second-hand secondary evidence. Such news item cannot be said to prove itself, although it may be taken into account with other evidence if the other evidence is forcible. 2A news report about a statement in a Press Conference held by a Chief Minister, is not admissible but can be proved by filing affidavits of persons who heard the statement.3Regarding the report of speeches made, which were published in a newspaper, though mere tendering the newspaper as proof of the speeches is not admissible, still they can be proved by the persons who had made the speeches or the persons in whose presence

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such speeches are made, or by the reporter of the newspaper who was present when the speeches were made and who had sent the report to be published in the paper. 4 In a case of murder, the witness who was present at the place of occurrence stated that he saw the wife of the accused running out of the house and heard her saying that the accused had killed the children and was also going to kill her; he further stated that he was told by the wife of the accused's brother that the accused was killing the children. It was held that the latter part of the statement was not hearsay and was admissible as relevant fact u/ Section 60. 5 A witness proving the information must state in the court what the information was, and that a mere formal proof of the memo of information, by proving the signatures of the police officers who recorded the information would not be sufficient.6Where A, in his deposition, refers to a talk he had with B (the accused), who said he had a scuffle or fight with the deceased C, A who heard it can speak about it, and that would be direct oral evidence in respect of that fact. If A then spoke to D, who says that in the court, that would be hearsay, and would not fall under Section 60 of the Evidence Act . Such evidence of D can however become admissible under Section 157, to corroborate the testimony of A, but this can arise only if A's evidence of such a fact is to be corroborated. 7Where a witness, who is a relative and neighbour of the accused, stated that he heard the daughter of the accused shouting that her father was assaulting her mother, it was held that his evidence was direct evidence. 8 Where the question was 'where the ancestor of the plaintiff was born', and the ancestor died half a century before the suit, and no direct evidence was available on that question, it was held that the statement of the plaintiff that her mother had told her that the ancestor was born in Coorg was relevant and was not entirely inadmissible as hearsay.9 Where the witnesses had deposed that in their presence the parties had negotiated an oral agreement, it would be too hypertechnical to contend that the witnesses should not only state that in their presence negotiation for oral agreement was held but they had heard the talks between the parties.10 1 Mi Huak v. King Emperor, (1907) 4 LBR 121; Lal Singh v. The Crown, (1924) 5 Lah 396. 2 S.N. Balakrishna v. Fernandez, AIR 1969 SC 1201; Priya Gupta v. General Manager, N.E. Railways, AIR 1959 All 643; Hajarilal v. State, AIR 1953 HP 41; (Newspaper report is not one of the documents referred to in Section 78(2) by which proceedings of the Legislature may be proved) Harbhajan Singh v. State of Punjab, AIR 1961 Punj 215. 3 Curcharam Panchayat v. Lt. Governor, AIR 1972 Goa 1. 4 Khilumal Topandas v. Arjundas Tulasidas, AIR 1959 Raj 280. 5 Muni Lal Gupta v. State, 1988 CrLJ 627(Del) . 6 Kammu v. State, (1964) 14 Raj 715; In re : Seetha Rami Reddi,AIR 1939 Mad 766; Md. Salabat v. Emperor, AIR 1937 Lah 475. 7 Kahbi Vaghji v. State of Gujarat, AIR 1968 Guj 11. 8 Tulsiram v. State of Maharashtra, 1984 CrLJ 209 (Bom-DB). 9 Alicia v. Percival Felix Pinto, (1967) 2 Mys. L.J. 210. 10 Achutananda Baidya v. Prafullya Kumar Gayen, AIR 1997 SC 2077.

6. FACTS WHICH COULD BE PERCEIVED BY ANY OTHER SENSE The state of mind of a person may be proved directly by the person himself by giving evidence of his own mental feelings or indirectly by other witnesses speaking to the outward expression of the condition of the person at the time (res gestae), by circumstantial evidence of facts which lead to an inference as to the person's state of mind.

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If a person watching the conduct of the members of a family, though he is not a member of that family, gives evidence, he can be treated as a person with special means of knowledge and such evidence is admissible under Section 60.11 The manager of a company was held to be a competent witness to give evidence to the effect that in pursuance of policy decision taken by the company some agencies of the company had given up its business at Calcutta and also in other places and it was to reorganise its business by concentrating more on manufacturing side then on its agency business. The Policy of the company was held to be proved through its manager.12 11 Ganesh Naraian Singh v. Jadunandan Singh, AIR 1969 Pat 82; Amarsingh v. Chhaju Singh, AIR 1973 Punj 213(DB) . 12 Parry & Co. v. Judge 2nd I.T. , Calcutta, AIR 1970 SC 1334, 1341 (Para 13).

7. OPINION Evidence regarding expert opinion must be given orally, and a mere report or certificate given by an expert cannot be evidence unless a statute so provides. If a party does not object to its admission, the party can be said to have waived proof of it and not its relevance. 13 Where the report of a doctor who examined a girl, about her age was not produced but a reference to it was made in an affidavit of another person; it was held the affidavit was not admissible and the opinion given has to be proved by the doctor. 14Where the post-mortem report was produced by the record clerk of the hospital and the doctor who conducted the post-mortem was not examined, the said report was not admissible.15 The conduct or outer behaviour under Section 50, must be proved in the manner laid down in Section 60. The portion of Section 60 which provides that the person who holds an opinion must be called to prove his opinion does not necessarily delimit the scope of Section 50. Conduct, as an external perceptible fact, may be proved either by the testimony of the person himself, whose opinion is evidence under Section 50, or by some other person acquainted with the facts which express such opinion.16 Mere production of medical report is inadmissible as evidence, to prove the illness of a witness. 17A report of the Probation Officer as to the previous conviction of an accused cannot be admitted without examining the concerned officer. 18 Opinion evidence as to handwriting is hearsay and becomes relevant only if the condition laid down in Section 47 of the Evidence Act is first proved.19 Where a witness stated that a signature seemed to have been erased, it was held that, as the witness was not an expert, his opinion evidence cannot be allowed. 20 Opinion expressed by conduct with regard to the determination of relationship is admissible. 21 Mere opinion of a witness as to relationship is not admissible. 22General reputation, without proof of conduct, is not admissible as proof of relationship. 23A school teacher who admitted a boy into the school and was giving lessons and marking attendance, cannot express any opinion on the boy's paternity, and such evidence is not direct.24 Opinion evidence regarding relationship of a person claiming to be adoptive son by a person like family priest or family barber having special means of knowledge is admissible in evidence. 25 13 B. Poornaish v. Union of India, AIR 1967 AP 338. 14 Md. Ikram Hussain v. State of U.P., AIR 1964 SC 1625; State of Mysore v. Kantappa, (1964) 1 Mys LJ 393; (post mortem certificate given by the doctor) State v. Sadhu Ram, AIR 1963 Punj 142; (Report of chemical examiner which was found to be vague). 15 Yijender v. State of Delhi, (1997) 6 SCC 171 : 1997 SCC 857(Cri) .

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16 Dologobinda v. Nimai Charan Misra, AIR 1959 SC 914; Shankarlal v. Yijayshanker, AIR 1968 All 58. 17 Govindrarajulu v. Lakshmi Raj Ammal, AIR 1961 Mad. 158; Srischandra Nandy v. Annapurna, AIR 1950 Cal 173; Shaukat Hussain v. Sheodayal, AIR 1958 MP 350; (report of health officer). 18 Pedru v. State of Kerala, 1958 Cr. LJ 175(Ker) . 19 Rahim Khan v. Khurshid Ahmed, AIR 1975 SC 290. 20 Rayma Jusab v. State of Gujarat, (1965) 2 Cr. LJ 448. 21 Bishwanath Goasain v. Dulhim Lalmuni, AIR 1968 Pat 481; Fukalia v. Mathuram, AIR 1960 Pat 480. 22 Amarsingh v. Chhaju Singh, AIR 1973 Punj 213(FB) ; Hadibandhu Malik v. Chandra Sekhar Behera, AIR 1973 Ori 141. 23 Md. Ayub Khan v. Abdus Samad Khan, 1969 B.L.J.R. 932. 24 Shanker Lal v. Vijayshanker, AIR 1968 All 58. 25 Bami Bewa v. Krushna Chandra Swain, AIR 2004 Ori 14, 17 (para 12) : 2004 (1) CLR 105 : 2004 (1) civil Court C 543.

8. OPINION EXPRESSED IN ANY TREATISE [PROVISO 1] The first proviso is a departure from the rule of English Law, under which medical and other treatises are not admissible, whether the author is alive or not. Any scientific text-book commonly offered for sale is admissible in evidence under the circumstances mentioned in the proviso. Section 45 refers to the evidence of expert witnesses who may be examined in court, Section 38 refers to books on law. The Supreme Court, dealing with the question of when the quickening of a child in the womb is perceptible to the mother, adopted the opinion expressed in a treatise, "obstetrics and gynaecology" by Dugald Baird and 'Manual of Obstretrics' by Edan and Holland. The Supreme Court preferred the opinion therein to the statements contained in Modi's Medical Jurisprudence. 26 In India, even if the expert is not examined in court, the court is entitled to consider and act upon the opinions of experts, contained in treatises.27 Opinion of a living authority as to usages and tenets in respect of a family or a body of men, contained in a treatise, is not admissible.28 "History of Hydraulic Stowing in India" by N. BARRACLOUGH was held to be a treatise by an expert and as a document of reference under Section 57, even though it may not be admissible under Section 60, first proviso, as not satisfying the tests of being offered for sale, and the author being dead or unavailable.29 26 Mahendra Manilal Nanavati v. Sushila Mahendra Nanavathi, AIR 1965 SC 364. 27 John Howe v. Charlotte Howe, AIR 1916 Mad 338(FB) . 28 Kandan v. Jitan, AIR 1973 Pat 206. 29 Nimcha Coal Co. Ltd. v. Srinivasa Goenka, (1968) 2 Cal 402.

9. EVIDENCE REGARDING ANY MATERIAL THING [PROVISO 2] This proviso enables the court to require the production of a material thing for its inspection. Under Section 165 the court has power to direct the production of any document or thing, in order to discover or to obtain proper proof of relevant facts. Private trade marks exhibited in a case are material things within the meaning of the section. 30

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Where, according to medical witness, the injuries on the victim might have been caused by a flexible rod, and no such rod was recovered, but the prosecutor showed some flexible rod to the court, it was held that there was nothing to show that the rod shown by the public prosecutor, was similar to that alleged to have been used by the accused and that in the absence of production of the material thing, it was not proper to accept the medical evidence.31 30 T. Nooroodeen Sahib v. Charles Sowden, 15 M.L.J. 45. 31 Amalesh Chandra v. State, AIR 1952 Cal 481.

10. CIRCUMSTANTIAL EVIDENCE Section 60 does not exclude circumstantial evidence of a thing (fact) which would be seen, heard and felt.32 Where a rape was committed on the child of a tender age. On enquiry by mother the name of the person who committed the offence was told by her, it is a circumstances which has to be taken into account in considering the overall testimony of other prosecution witnesses including the Investigating Officer who conducted the enquiry and recorded the statements of the witnesses at earliest. Section 60 of the Evidence Act does not bar from considering the circumstantial evidence of the things that could be seen, heard, and felt. It is a settled principle that where a rape has been committed on such a child there is no rule of law requiring corroboration identity of accused. Where the fact is that the child was just 4-5 years at the time of committing the crime, it could not have been expected to examine the child to recollect the memory of the worst incident of her life. Non-examination of the child in such a case would not be fatal to the prosecution case. The conviction of the accused on the basis of circumstantial evidence was held to be proper.33 As against direct evidence postulated by Sections 60, 62 and 63 of the Act, there is another type of evidence known as circumstantial evidence which would also be legal evidence, but the concept of what is known as hearsay evidence, is entirely different. Though hearsay evidence is inadmissible to prove a fact, it does not necessarily preclude evidence as to a statement, having been made upon which certain action was taken or certain results followed. 34 Hearsay evidence which ought to have been rejected as irrelevant, does not become admissible as against a party merely because his counsel fails to take objection when the evidence is tendered. 35It is the duty of the court to disallow hearsay evidence, even if it is not objected to by the parties or their advocates.36A judge cannot admit inadmissible evidence though he feels that it would throw light upon the issue.37 In a case where two persons were killed and several injured by the explosion of a hand-grenade, in absence of any direct evidence that the accused had exploded the hand grenade, and where circumstantial evidence did not show that the accused alone was guilty of explosion, it was held that the accused could not be convicted for the offence on such evidence. 38 32 Makbul Ahmed v. Abdul Rahman, AIR 1952 Cal 494. 33 Syed Pasha v. State of Karnataka, 2004 CrLJ 4123, 4136 (para 23) (Kant) : 2004 AIR Kant HCR 2817 : 2004 (4) All CrLR 858. 34 State Bank of India v. J.D. Jain, 1979 Lab. IC 1041. 35 Lim Yam Hong v. Lam Choon & Co., AIR 1928 PC 127 : (1927) 30 Bom LR 757(PC) . 36 Munishwar Datt v. Indra Kumari, AIR 1963 Punj 449; Rayma Jusab v. State of Gujarat, (1965) 2 CrLJ 448(Guj) . 37 Mahani Dasi v. Pareshnath Thakur, AIR 1954 Ori 198. 38 K.M. Shelke v. State of Maharashtra, AIR 1973 SC 2474, 2479 : (1973) 2 SCC 449.

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Ratanlal & Dhirajlal: Law of Evidence, Updated 23rd Edition/THE INDIAN EVIDENCE ACT (ACT 1 OF 1872)/PART II ON PROOF/CHAPTER V OF DOCUMENTARY EVIDENCE/S. 61.

CHAPTER V OF DOCUMENTARY EVIDENCE S. 61. Proof of contents of documents. The contents of documents may be proved either by primary or by secondary evidence.

1. PRINCIPLE AND SCOPE Documentary evidence means all documents produced for the inspection of the Court (Section 3). Documents are of two kinds: public and private. Section 74 gives a list of documents which are regarded as public documents. All other documents are private (Section 75). The production of documents in courts is regulated by the Civil Procedure Codeand the Criminal Procedure Code. The contents of documents must be proved either by the production of the document which is called primary evidence, or by copies or oral accounts of the contents, which are called secondary evidence. Where there is documentary evidence, oral evidence is not entitled to any weight. 1 The section lays down that the contents of documents may be proved either by primary or secondary evidence; this means that there is no other method allowed by law for proving the contents of documents. 2 The documents should be duly proved by the person who issued them and if the documents virtually go on record by consent undisputed during trial, the defendant would be precluded from disputing their contents at the appellate stage. 3 The contents of every written paper are, according to the ordinary and well established rules of evidence, required to be proved by the original document, and by that alone, if the document is in existence. It is, therefore, necessary that when a document is produced as primary or secondary evidence, it will have to be proved in the manner laid down in Sections 67 to 73 of the Evidence Act . 4 Primary evidence means the documentary evidence produced for inspection of the Court. Therefore, when a particular fact is to be established by production of documentary evidence, there is no scope for leading oral evidence and there is no scope for personal knowledge. The document can be adduced by the party or by his Power of Attorney Holder. Production of the document is a physical act which needs no personal knowledge. Even proof of the document is by examining the persons who are well versed with the document or by examining the attesting witnesses or the executant of the document. Again the personal knowledge of the plaintiff has no role to play. In those circumstances, it is open to the plaintiff to examine the Power of Attorney Holder, produce the document through the Power of Attorney Holder, mark the same and examine witnesses to prove the said document if it is denied. Therefore, the contention that the evidence of a Power of Attorney Holder cannot prove the case of the plaintiff in all cases is not correct and is not the law. 5 Primary evidence is evidence which is required to be given by law first. Secondary evidence is evidence which may be given in the absence of the better evidence which the law requires to be given first, when a proper explanation is given of the absence of that better record. Primary evidence is defined in Section 62 and secondary evidence, in Section 63. Where the landlord did not produce the rent roll maintained by him it was held that the tenant could produce the order sanctioning mutation and the payment of rent to the landlord as proof of mutation in the rent roll. 6

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The proceedings under the Mysore (Personal and Miscellaneous) Inams Abolition Act are not judicial, and so the production of the documents in such proceedings is not strictly governed by the provisions of the Indian Evidence Act .7 When the prosecution wants to invoke a particular notification to prove that a private forest in question has been constituted into a protected one, it should produce the gazette in which notification has been published or its certified copies, as it would be the primary evidence in the case. 8 The affidavit of a candidate cannot be said to be a sufficient proof of his correct age. 9 Photocopy is not admissible 10 and so is the copy of the display board of the shop. 11 Unsigned telegram, unless confirmed by a signed application, representation or an affidavit, cannot be considered. 12 Where the names of two accused persons and use of swords and soda water bottles, not mentioned in the Emergency Police Report, were subsequently interpolated in the F.I.R. as a result of afterthought, it was held to be most fatal to the prosecution case and it was likely that the informant had not seen the incident. 13 Mere making of a document as an exhibit does not dispense with the proof of its contents. 14 It must be proved in accordance with law. 15 Its execution has to be proved by admissible evidence, that is, by the "evidence of those persons who can vouchsafe for the truth of the facts in issue." The situation is, however, different where the documents are produced, they are admitted by the apposite party, signatures on them are also admitted and they are marked thereafter as exhibits by the Court. 16 Execution of a document does not mean signing a document. The word 'execution' has a definite connotation in law. The person signing the document must be aware of the contents of document and consciously sign the document in token of acceptance of the contents of the said document. If the execution of a document is denied it is for the party who alleges the due execution to prove by acceptable evidence that the executant affixed his signature to the document after being aware of the contents of the document and in token of its acceptance so as to bind him. When it is stated that the executant executed an agreement of sale, it must be shown that the executant had agreed to sell the property and in token of acceptance of such agreement he has affixed his signature on the said document of sale. 17 However the mode of proof being a question of procedure may be waived by the party against whom the document is sought to be proved by giving consent, meaning thereby that the said party waives his right to get the document formally proved but by that way the truth of the contents of the document cannot be said to have been proved, if the facts stated therein are in issue. 18 In a case of non-production of an attesting witness, to prove the contents of the document, on the ground that he was a leper, it was held that the ground was not proper as he could be examined on commission. 19 Executant of a document must be produced or his affidavit filed. 20 In regard to the notice under Section 7 of the Administration of Evacuee Property Act of 1950, it was held that proof of its contents, along with proof of its issue and service, has to be established. 21 Proof of the contents of a document by merely proving the signature or handwriting of the author thereof, is not permissible. 22 Mere marking of the document as an exhibit does not dispense with its proof as even admission of the signatures without putting its contents to the witness also do not prove the contents thereof. 23 Where the report of a doctor regarding the age of a girl was not before the court it was held that an affidavit of a third person referring to the report was not admissible in proof of the contents of the document. 24 The adoption deed showing adoption of a man who was over age and that too unregistered, was held to be not admissible in evidence to prove adoption. 25 It is well-settled that the documents do not by themselves prove the contents therein. Proof of the contents has to be given by cogent evidence. 26 Where the copy of deposition of a person recorded in another criminal case was relied on by the Court to disbelieve the presence of the eye-witness at the time of occurrence in the instant case but the person concerned was not examined, it was held that the copy of deposition was wrongly relied on. 27 Where the document sought to be relied upon by the defendant, was neither signed by the scribe nor confronted to the plaintiff for admission, it could not be admitted in evidence. 28 Balance sheets relating to accounts do not prove themselves, and the facts mentioned therein have to be proved by evidence, after giving an opportunity to the opposite party to contest the correctness of such evidence by cross-examination. 29 When an attestor and scribe were not examined, it was held that such non-examination cannot by itself lead to an inference that the

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document was not executed when the executants admit its execution. 30 Mere consent of a party to exhibit the document does not amount to an admission of its contents. A party has a right by crossexamination to show that the document is not genuine. 31 The correctness of the contents of a letter cannot, and does not, stand proved even if it is admitted that letters have passed between the parties. 32 Where in a case involving death by electrocution, the report of the Electrical Inspector was based on the information given by another person but neither the original report was produced nor the informant was examined, no reliance could be placed on the version of that person or the report. 33 As to what inference arises from a document, is always a matter of evidence unless the document is selfexplanatory. In the instant case no document placed on record during trial was self-explanatory nor was the same explained by any competent witness on either side. In the absence of any such explanation, it was not open to the Special Court to come up with its own explanations and decide the fate of the suit on the basis of its inference based on such assumed explanations. 34 Factum of mortgage or passing of consideration is not 'contents of a document' within the meaning of Section 61; proving of the factum of mortgage is not the same thing as proving the terms of the mortgage; nor is proving the consideration for the mortgage, the same thing as proving the terms of the mortgage, both aspects have to be proved by evidence. 35 When the document was produced from proper custody, it was held that the document was properly proved. 36 Objection to the mode of proof of contents of the document must be raised before the document is admitted by court and marked as an exhibit on record. 37 In compensation proceedings under the Rajasthan Land Acquisition Act , if no objection was taken by the Government side when certified copies of some sale deeds were tendered, objection cannot be taken in the appellate stage. When the certified copies were issued under Sections 57 of the Registration Act , it was held they were admissible underSection 51A of the Rajasthan Act. 38 A document, evidencing partition, giving no description of the property falling to the shares of the respective parties, is not a partition deed, hence it was admissible in evidence without registration to show the severance of the joint status of the parties. 39 Where an agreement to purchase certain property was subsequently abandoned and a suit was filed for the recovery of the money advanced, it was held that though the document was unregistered, it was admissible as evidence. 40 Where a document was marked as exhibit without any objection having been raised as to its validity and the counsels for both the parties relied upon it, it was held that it was admissible in evidence though it had no statutory backing. 41 The documents not creating any right in favour of any party, but only recorded something, were held to be admissible in evidence. 42 An unregistered family settlement deed has been held to be admissible in evidence strictly for collateral purpose. 43 A family settlement deed being unregistered was held to be inadmissible in evidence. 44 An unregistered relinquishment deed, since required to be registered, is inadmissible in evidence. However, it can be relied upon for collateral purposes. 45 The documents bearing stamps of the date prior to six months from the date of purchase of such stamps were held to be inadmissible in evidence. 46 Where the counsel of a party admitted the document to be marked as exhibit, it was held that the contents of the document should be held to be admitted as correct. 47 1 For Statement of Objects and Reason, see Gaz. of India, 1868, p. 1574. 1 Murarka Properties (P) Ltd. v. Beharilal Murarka, AIR 1978 SC 360. See also Bhimappa v. Allisab, AIR 2006 Kant 231, 236-37 (para 15). 2 Ram Prasad v. Raghunandan Prasad, (1885) 7 All 738, 743. See also Bhimappa v. Allisab, AIR 2006 Kant 231, 23637 (para 15). 3 Karnataka Power Corporation Ltd. v. M/s. Shaik Basha Transport & Civil Contractor, 2000 AIHC 4428 (para 6) (Kant). See also Subhash Maruti Avasare v. State of Maharashtra, (2006) 10 SCC 631, 634 (para 17). 4 Bank of India v. Allibhoy Mohammed, AIR 2008 Bom 81, 85 (para 24). See also Bank of Baroda , Bombay v. Shree Moti Industries, Bombay, AIR 2008 Bom 201, 204 (para 19). 5 Bhimappa v. Allisab, AIR 2006 Kant 231, 236-37 (para 15).

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6 Chandranath v. Tusharika Devi, AIR 1958 SC 521. 7 State of Mysore v. P.T. Muniswamy Gourda, AIR 1971 SC 1363. 8 Jaigopal Singh v. Divisional Forest Officer, AIR 1953 Pat 310. 9 Kripa Shankar v. Gurudas, AIR 1995 SC 2152 (para 5). 10 Ramesh Verma v. Lajesh Saxena, AIR 1998 MP 46 (para 12). 11 Raju v. State of Rajasthan, 2008 CrLJ 2096, 2098 (para 10) (Raj), relying on State of Rajasthan v. Mishri Lal, 1990 (1) Raj LR 711. 12 District Magistrate v. G. Jothisankar, 1993 CrLJ 3677 (paras 9 and 10) (SC) : AIR 1993 SC 2633. 13 D.D. Suvarna v. State of Maharashtra, 1994 CrLJ 3602 (paras 17 and 18) (Bom). 14 Sait Taraji Khimchand v. Satyam, AIR 1971 SC 1865. See also Narbada Devi Gupta v. Birendra Kumar Jaiswal, (2003) 8 SCC 745 (para 16) : AIR 2004 SC 175. 15 John Mithalal Desai v. Dineshbhai K. Vora, 1998 AIHC 1894 (para 15) (Guj). 16 Narbada Devi Gupta v. Birendra Kumar Jaiswal, (2003) 8 SCC 745 (para 16) : AIR 2004 SC 175. 17 Mariam Hussain v. Syedani, 2007 CrLJ 2272, 2283-84 (para 32) (Kant). 18 John Mithalal Desai v. Dineshbhai K. Vora, 1998 AIHC 1894 (para 13) (Guj). 19 Ramakrishna Panda v. Arjuno Padhano, AIR 1963 Orissa 29. 20 Ram Jawai v. Shakuntala Devi, AIR 1993 Del 330 (para 19). 21 Arunkumar v. Union of India, AIR 1964 Pat 338. 22 M. Yusuf v. D, AIR 1968 Bom 112 but subsequently same High Court held contrary to it in Cynthia Martin v. Prembehari Makhanlal Yadu, 1998 AIHC 966 (para 13) (Bom). 23 H.P. Forest Corporation v. Ram Singh, AIR 2007 (NOC) 1124(HP) . 24 Md Ikram Hussa v. State of U.P., AIR 1964 SC 1625. 25 Rakhi v. 1st Addl. District Judge, Firozabad, AIR 2000 All 166 (para 9) : 2000 AIHC 3482. 26 Rajwatidevi v. Joint Director Consolidation, Government of Bihar, AIR 1989 Pat 66. 27 Pammi v. Government of Madhya Pradesh, AIR 1998 SC 1185 : 1998 CrLJ 1617 (para 17) (SC). 28 Debendro v. Prabhakar Sahu, 1998 AIHC 4838 (para 5) (Ori). 29 Management of Postal R.M.S. Co-op. Society v. Workmen, (1963) 2 Punj 28 relying on, Petlad Turkey Reddye Works v. Dyer and Chemicals Workers Union, AIR 1960 SC 1006. 30 Surender Reddy v. Govt. of A.P., (1979) 1 An WR 416. 31 Sanjay Cotton Co. v. Omprakash, AIR 1973 Bom 40; relied on in Aparna M. Indapwar v. Bacchubhai Karsanbhai Rathod, 2007 AIHC 3044, 3048-49 (para 15) (Bom). 32 Hoare Miller & Co. Ltd. v. Union of India, (1961) 65 CWN 1206. 33 Asa Ram v. M.C.D., AIR 1995 Del 164 (para 10). 34 Standard Chartered Bank v. Andhra Bank Financial Services Ltd., (2006) 6 SCC 94, 121-22 (para 48). 35 Panchia v. Harnath, (1958) 8 Raj 459, see also Banga Chandra v. Jagat Kishore, AIR 1916 PC 110 (recitals as to legal necessity). 36 Mohanlal v. Kumari Babbi, (1967) 69 Punj LR 578.

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37 Sri Chand Gupta v. Madanlal, 1972 All LJ 635; P.C. Purushothama v. Perumal, AIR 1972 SC 608; Gopaldas v. Thakurji, AIR 1943 PC 83. 38 State of Rajasthan v. Jeo Raj, AIR 1990 Raj 90. See also Tata Chemicals Limited, Bombay v. Sadhu Singh, AIR 1994 All 66 (para 9). 39 Purnabashi Mishra v. Raj Kumari Mishra, AIR 1995 Ori 284 (para 8). 40 R. Vishwanatham Setty v. T. Lakshminarasamma, 2000 AIHC 4982 (paras 5 and 6) (AP). 41 Sushil Kumar v. Rakesh Kumar, AIR 2004 SC 230 (para 47) : (2003) 8 SCC 673. 42 Tex India v. Punjab & Sind Bank, AIR 2003 Bom 444 : 2004 (2) Bom CR 250 : 2003 (3) All MR 99. 43 Lakshmaiah v. Sarojamma, AIR 2004 NOC 59(Kant) : (2003) 5 Kant LJ 184 : 2004 AIR Kant HCR 24 : 2004 (2) civil Court C 3310 : 2004 (3) KCCR 2255 : 2004 (2) Land LR 82 : 2004 (2) Rec Civ R 286. 44 Bhabhuti Singh v. Bhagauti Prasad, 2005 AIHC 518, 520 (para 6) (All) : AIR 2004 All 439 relying on Shiromani v. Hemkumar, AIR 1968 SC 1299 and Bankey Bihari v. Surya Narain alias Munnoo, (1998) 89 RD 508 : 199 All LJ 1104. 45 T. Arthi v. K. Anand Reddy, AIR 2006 AP 335, 336 (para 13). 46 Tex India v. Punjab & Sind Bank, AIR 2003 Bom 444 : 2004 (2) Bom CR 250 : 2003 (4) All MR 99. 47 A. Rahiman v. M. Wabber, (1973) 1 Mys LJ 376 : 197 CrLJ 1483. Contra : truth or correctness of contents to be ascertained from evidence, Life Insurance Corporation of India v. Narmada Agarwalla, AIR 1993 Ori 103 (para 11).

2. ADMISSIBILITY OF DOCUMENT The question of admissibility of a document has to be decided immediately after it is raised. It cannot be deferred for its decision till the stage of final argument because a party may be deprived of an opportunity to remove a curable defect which may cause a grave injustice to the party. 48 Where the objection regarding admissibility of the photostate copies of the documents was not raised at the time of marking them as exhibits and admission in evidence before National Consumer Redressal Commission, the same cannot be raised subsequently. 49 Where a document was admitted in evidence and was marked as an exhibit without any objection, at the subsequent stage, the contention of the adverse party that the document was not admissible in evidence due to insufficiency of stamp duty, was held be untenable. 50 A party objecting to the admissibility of a document must raise its objection at the appropriate-time. If the objection is not raised and the document is allowed to be marked, and that too at the instance of a party which had proved the same and wherefor consent of the other party had been obtained, the party proving the document could not be permitted to turn round and raise the contention that the contents of the document had not been proved, and thus, should not be relied upon. 51 Where the certified copy of written statement filed in an earlier suit was not disputed, it could not be contended that written statement should be eschewed for want of proof of the contents of that document. 52 The objection petition which was purported to be filed by the landlord before Municipality admitting a certain person to be a tenant under him and which was exhibited despite the fact that the clerk of Municipal Committee stated in his deposition that the landlord had not signed on the objection petition before him and he was not aware who the author of the objection petition was, it could not be admitted in evidence. 53 In an accident claim case, the claimants tried to establish their injuries by way of providing invoices and bills of medicine which were not connected with evidence of claimants either by himself or by any other persons. The record did not reveal on whose prescription medicines were purchased. The doctors were not examined to prove the documents. Hence those documents were not connecting and admissible evidence. 54 Where only mutation orders were brought on record and not their corresponding sale deeds, it was held that they were inadmissible in evidence. 55 Where an affidavit was made without any power of attorney in favour of the affiant and except making reference to the documents produced, neither signatures of the dependants nor the contents of the documents

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were proved, it was held that the documents could not be read in evidence. 56 Even if an agreement is not executed on requisite stamp paper, it is admissible in evidence on payment of duty and penalty under the Stamp Act . If an agreement executed on a plain paper could be admitted in evidence by paying duty and penalty, there is no reason why an agreement executed on two stamp papers, even assuming that they were defective, cannot be accepted on payment of duty and penalty. The fact that very old stamp papers of different dates have been used, may certainly be a circumstance, that can be used as a piece of evidence to cast doubt on the authenticity of the agreement, but that cannot be a clinching evidence. 57 An unregistered partition deed-cum-Will, though its nomenclature was 'Will', made family settlement, therefore it required compulsory registration as value of the property in question was more than Rs. 100/-. Hence, the document was inadmissible in evidence. 58 However, where in the document executed the transferor of the property to the petitioner conditionally acknowledged the limited rights of the respondent, such a document was held to be admissible in evidence, even though unregistered. 59 Where the document in question was styled as conditional sale, the order declining to admit the same at the initial stage of taking evidence on the ground that it was a mortgage deed and insufficiently stamped and unregistered, was held to be not legal. The High Court observed that whether it was a mortgage or an agreement of sale, it could be seen at the time of trial and in fact, the nature of the document was the subject-matter of the suit itself. Hence, the nature of the document and intention of the parties could be determined only when the parties adduced evidence and by appreciating the recitals in the light of the evidence adduced by the parties. At the initial stage, merely by looking into the recitals of the document, it could not be concluded that the document was in the nature of mortgage. Further, the plaintiff's entire claim was based on the document, hence any refusal to admit the document would cause serious prejudice to him. The Court held that after the conclusion of the trial, the court might arrive at the conclusion that the document was only a mortgage/conditional sale which required stamp duty, but at the initial stage, the document could not be shut out. The Court observed that the document ought to have been received 'subject to objection' raised by the defendants. 60 Where the Rent Controller was obliged to first decide the question of admissibility of the documents before making endorsement thereon, his order to postpone consideration of objection raised by the petitioner-tenant to the stage of final arguments was held to be illegal. 61 Once a document is admitted, contents therein cannot be disputed.

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The production of certain documents and information pursuant to the order of court would not by itself transform and constitute the documents and the information to be part of the evidence in the matter unless the provisions applicable thereto under the CPC as well as the Evidence Act are complied with. Mere placing of certain documents before the Court or revealing an information to the court is different from production of such documents and information on record to form part of the evidence in the suit for the purpose of consideration thereof in the process of adjudication of the dispute between the parties. 63 See under Section 5. 48 Shail Kumari v. Saraswati Devi, 2002 AIHC 1973, 1979 para 24(Del) . 49 New India Assurance Co. Ltd. v. United Commercial Bank, 2002 AIHC 2147, 2149 (para 10) (Ori). 50 Isra Fatima v. Bismillah Begum, 2002 AIHC NOC 17(AP) . 51 Oriental Insurance Company Limited v. Premlata Shukla, (2007) 13 SCC 476, 481 (para 15), approving Hukam Singh v. Udham Kaur, 1969 PLR 908(P&H) . 52 Raman Pillai Krishna Pillai v. Kumaran Parameswaran, AIR 2002 Ker 133, 142. Distinguished S.T. Khimchand v. Y. Satyam, AIR 1971 SC 1865 : (1972) 4 SCC 562. 53 Bhagwat Sarup v . Salag Ram , 2003 AIHC 3754, 3758 (para 11) (P&H). The Court relied on Ram Krishan v. Shantra Devi, (1986) 1 Pun LR 417. 54 Kashmir Singh v Santosh Singh Patiner, 2007 AIHC 1429, 1433-34 (paras 20 and 21) (Utr.) See also Dharmarajan v. Valliammal, (2008) 2 SCC 741, 746 (para 11).

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55 Atma Singh v. State of Haryana, (2008) 2 SCC 568, 573 (para 6). 56 Bank of Baroda, Bombay v. Shree Moti Industries, Bombay, AIR 2008 Bom 201. 57 Thiruvengadam Pillai v Navaneethammal, (2008) 4 SCC 530, 537 (paras 13 and 14). Document, want of sufficient stamp duty, having not been sought to be sustained by making good deficit duty and paying penalty, not admissible, no oral evidence to be led to the contrary, G. Rangaiah v. Govindappa, AIR 2008 Kant 151, 156-57 (paras 31-33). 58 Mohinder Lal v. Tule Ram, AIR 2006 HP 103, 105 (para 9). 59 Mylavarapu Subba Rao v. Kollapalli Lakshmi, AIR 2006 (NOC) 932(AP) : 2006 (3) Andh LD 56. 60 K. Achuthan Chetty v. K.K. Narayanan, AIR 2006 (NOC) 1289(Mad) : (2005) 4 Mad LJ 643. See also M. Sheshagiri Rao v. M. Rukkamma, AIR 2006 (NOC) 1488(AP) : 2006 AIHC 2561, following AIR 2001 SC 1158; Manda Laxmi Rajam v. Kanaparthi Laxmi Bai, AIR 2008 AP 255, 258 (para 14). 61 Girdhari Lal v. Ritesh Mahajan, 2006 AIHC 91, 92 (para 6) (P & H). 62 Canara Bank v. Eastern Mechanical Works, AIR 2008 Bom 188, 192 (para 25), relying on Puroshothama Reddiar v. S. Perumal, AIR 1972 SC 608. 63 Sarvadaman Mansukhlal Doshi v. Deepak Mansukhlal Doshi, 2008 AIHC 1484, 1488-89 (para 15) (Bom).

3. MODE OF PROOF Contents of a document are not automatically proved only because the same is marked as an exhibit. However, the factum, of accident could also be proved from the F.I.R. Once the F.I.R. is admitted in evidence in a claim petition, the party bringing the same on record cannot be permitted to turn around and contend that the other contents, contained in the rest part thereof, had not been proved. 64 The mode of proving the contents of the documents has been dealt with in Section 61 to 66. Mere production of the documents purporting to have been signed or written by certain persons is no evidence of its authorship. It is necessary to prove their genuineness and execution. Proof, therefore, has to be given of the handwriting, signature and execution of a document. No writing can be received as a genuine writing until it has been proved to be a genuine one and none as a forgery until it has been proved to be a forgery. A writing, by itself, is not evidence of the one thing or the other. A writing, by itself, is evidence of nothing, and therefore is not, unless accompanied by proof of some sort, admissible as evidence. 65 The execution or authorship of a document, being a question of fact, can be proved like any other fact by direct or circumstantial evidence. The internal evidence provided by a document may also be of some help. In most cases the nature of evidence will depend on the nature of documents and the circumstances of each case. 66 64 Oriental Insurance Company Limited v. Premlata Shukla, (2007) 13 SCC 476, 480-81 (paras 12 and 13). 65 Bank of Baroda, Bombay v. Shree Moti Industries, Bombay, AIR 2008 Bom 201, 204 (para 20). 66 Bank of Baroda, Bombay v. Shree Moti Industries, Bombay, AIR 2008 Bom 201, 204 (para 22).

4. RELIABILITY OF PRIVATE DOCUMENT The author of a private document is to be examined to establish the contents thereof. The credibility of the document is to be ascertained by the Court while analysing evidence on record. The High Court held that the order refusing permission to the party producing the document to rely upon the said document on the ground that it was not in existence on the relevant day was not proper. 67 67 Meria Sonia Elvira v. Nicolau Lourenco Serverino Pereira, AIR 2006 (NOC) 1324(Bom) : 2006 AIHC 2119.

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5. SHAM DOCUMENT Where in consequence of a deed of agreement between the parties, the respondent conducted a business of agency in the appellant's shop and received commission, the parties maintained accounts and filed returns before various public or statutory authorities which revealed the nature of business conducted, the said agreement could not be said to be a sham document. 68 68 Liberty Sales Services v. M/s. Jakki Mull and Sons, 1997 AIHC 2368 (paras 11 and 13) (Del).

6. DOCUMENT--INTERPRETATION OR CONSTRUCTION OF In interpretation or construction of a document, inescapably extrinsic evidence and the surrounding circumstances from totality of the case are to be considered. 69 Where it was found that the real intention gathered from the words of endorsement on the reverse of the promissory notes was only 'endorsement' and not 'assignment', the promissory note would not require any stamp duty for the purpose of admitting them in evidence. 70 A partition deed divided the joint family properly equally between the father and the three sons. The first portion of the deed clearly stated that a sharer had the right of alienation including gift, exchange etc. and the second portion stated that the share of the father was to be divided equally among his sons after his death. It was held that the later portion could not be read to cancel the effect of the first portion as to the right of the sharer to alienate his share and that only life estate was created in favour of the father. The gift deed executed by the father was held to be valid. 71 69 Reddi Demudu v. Kannuru Demudamma, 1996 AIHC 4983 (para 9) (AP). 70 Mulji Mehta & Sons v. C. Mohan Krishna, AIR 1997 AP 153. 71 Jaggavarapu Krishna Reddy v. Jaggavarapu Chittemma, 1998 AIHC 3834 (paras 5, 8-10) (AP).

7. CONSENT DECREE In Rajni Bajaj v. Ram Piari , 72 it was held that a consent decree which created rights for the first time could not be taken to have conferred any right in favour of the transferee unless it was registered. 72 AIR 2006 (NOC) 307(P&H) .

8. "YADI" Where the deceased disclosed the names of the accused as his assailants to the PSO, the prosecution witness and also the names of two other persons who also had assaulted him and the PSO prepared a 'Yadi' to that effect, the Apex Court held that there was no reason for the said witness to depose falsely before the court and 'yadi' which was prepared by him, being a contemporaneous document, could be relied upon. 73 73 Subhash Maruti Avasare v. State of Maharashtra, (2006) 10 SCC 631, 633 (para 13).

9. FAMILY ARRANGEMENT Where the disputed document viz. 'Parishkara Patramu' letter of solution was merely an adjustment or understanding between the members of the family (a family arrangement), it was held that the same could not be said to be inadmissible for want of registration. 74 74 M. Rajeshwari v. M. Nagamani, AIR 2009 (NOC) 252(AP), relying on AIR 1966 SC 292.

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10. NEWSPAPER REPORT Mere newspaper reports cannot be read in evidence. However, when identity of the newspaper reporters were located and they supported the reports, it was held that their versions were admissible in evidence. 75 Xerox copies of the newspaper cannot be relied upon. 76 75 Udaysingh v. State of Maharashtra, AIR 2007 (NOC) 1640(Bom) : 2007(3) AIR Bom R 805. 76 All India Anna Dravida Munnetra Kazhagam v. L.K. Tripathi, AIR 2009 SC 1314 : (2009) 5 SCC 417.

11. TEMPORARY INJUNCTION At the stage of temporary injunction, the court can refer to the documents, which are produced on record without formal proof. In other words, formal proof of documents, which otherwise is necessary at the time of deciding the suit in that strict sense is not necessary while considering the documents concerned at the time of consideration of the prayer for temporary injunction. 77 77 Shamrao Ganpat Chintamani v. Kakasaheb Laxman Gorde, AIR 2008 (NOC) 1459(Bom) : AIHC 2008 (2) 1798 (Bom).

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Ratanlal & Dhirajlal: Law of Evidence, Updated 23rd Edition/THE INDIAN EVIDENCE ACT (ACT 1 OF 1872)/PART II ON PROOF/CHAPTER V OF DOCUMENTARY EVIDENCE/S. 62.

CHAPTER V OF DOCUMENTARY EVIDENCE S. 62. Primary evidence. Primary evidence means the document itself produced for the inspection of the Court. Explanation 1.-- Where a document is executed in several parts, each part is primary evidence of the document. Where a document is executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it. Explanation 2.-- Where a number of documents are all made by one uniform process, as in the case of printing, lithography or photography, each is primary evidence of the contents of the rest; but where they are all copies of a common original, they are not primary evidence of the contents of the original. ILLUSTRATION A person is shown to have been in possession of a number of placards, all printed at one time from one original. Any one of the placards is primary evidence of the contents of any other, but no one of them is primary evidence of the contents of the original.

1. PRINCIPLE This section defines primary evidence to mean the document itself produced for the inspection of the court. Where a document is executed in several parts, each part is primary evidence of the document. Where a document is executed in counterpart, each counterpart is primary evidence, as against the party executing it. Where a number of documents are made by printing, lithography, or photography, each is primary evidence of the contents of the rest. Where they are copies of a common original, they are not primary evidence of the contents of the original. Primary evidence is the evidence which the law requires to be given first. Section 91 of the Act states that, when the terms of the contract or a grant or any other disposition of property, have been reduced to the form of a document and, in all cases where any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of those terms except the document itself, or secondary evidence, if it is allowed by law. Explanation (2) of Section 91 says that, where there are more originals than one, one original needs to be proved. Under Section 62 where a document is executed in counterpart, each counterpart is primary evidence as against the parties executing it. Explanation (2) says that if the documents are made by one uniform process as in the case of printing, lithography or photography each is primary evidence of the contents of the rest, but copies of a common original are not primary evidence of the contents of the original. The school certificate prepared on the basis of admission form cannot be said to be a primary evidence. The admission form on the basis of which a certificate has been issued, is a primary evidence. 78 Where secondary evidence is admitted without any proper objection, it becomes a primary

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evidence. 79 The Bill of Lading is an evidence to establish the fact that the goods were actually put on board and received by the master of the ship. In absence of fraud and mischief it is the evidence of contract. It may not itself be a conclusive contract between the parties. 80 78 Jeev Rakhan v. State of M.P., 2004 CrLJ 2359, 236 (para 10) (MP) : 2004 (3) Cur Cr R 613 : 2004 (2) MP HT 158 : 2004 (3) Rec Cr R 577. 79 Alacs Finariz Ltd. v. Oksh Technologies, AIR 2005 Del 376, 377 (para 8). 80 S.K. Networks Company Ltd. v. Amulya Exports Ltd., 2006 AIHC 3683, 3689-90 (para 34) : AIR 2007 Bom 15.

2. EXECUTED IN SEVERAL PARTS [EXPLANATION 1] Sometimes each party to a transaction wishes, for the sake of convenience, to have a complete document in his own possession. To effect this, the document is written out as many times over as there are parties, and each document is executed, i.e., signed or sealed, as the case may be, by all the parties. Any one of them may be produced as primary evidence of the contents of the documents. An award, partitioning certain joint family property among three brothers, was prepared in quadruplicate, and all the four documents were scribed by a professional scribe and signed by all the arbitrators, every page having been initiated. The main document was written on a stamp paper of higher denomination and it was left with one of the arbitrators; the other three copies were scribed on stamp paper of lower denomination and each of the three was given one copy. It was held that as all the documents contained the signatures of the scribe and the arbitrators, each one was original and not a mere copy, subject to the rule of secondary evidence. 81 81 Kruttivasa v. Malati, AIR 1959 Ori 113.

3. COUNTERPARTS A document is executed in counterpart when there are two parties to the transaction. Thus, if the transaction is a contract between A and B, the document is copied out twice, and A alone signs one document, whilst B alone signs the other. A then hands to B the document signed by himself, and B hands to A the document signed by himself. Thus, as against A, the document signed by A is primary evidence, whilst, as against B, the document signed by B is primary evidence. If there are two contemporary writings, the counterparts of each other, one of which is delivered to the opposite party, and the other preserved, as they may both be considered as originals, and they have equal claims to authenticity, the one which is preserved may be received in evidence, without notice to produce the one which was delivered. 82 Where a document is executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it. (Section 63Cl. 4). When a deed is prepared in two or more identical forms, the part signed by the grantor is the original and the other parts are 'counterparts'. A copy is defined as a document which is an accurate and full representation of the original.

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Where there was dissolution of partnership by an agreement of the partners, and the copy of the original signed by every one of the partners was handed over to each partner, it was held that the copy will not come under any of the categories of Section 63, and it is a counterpart within the explanation (1) of Section 62. 2 In the case of agreements executed in duplicate, it is only when each of the instruments is duly signed by the party to be bound by it and delivered to the other, that the documents are termed as counterparts. It is only then that each is evidence against the party executing it, and those in privity with the executing party, and each is secondary evidence of the other. 3 Where the disputed document was purported to have been executed by the plaintiff but did not bear his signature nor it was delivered to the defendants, it could not be termed a counterpart. 4 Where there was no evidence to show that

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the original partition deed was with the borrower, the bank was held to be justified in accepting its duplicate from him as a collateral security for loan. 5 Where there was a claim for exemption in respect of sales to registered dealers, it was held that exemption cannot be granted without production of declaration forms, and the counterfoil of declaration forms cannot be regarded as counterparts within the meaning of Section 62 of the Evidence Act . 6 82 Philipson v. Chase, (1899) 2 Camp 110. 1 Jayarama v. Ramanatha, 1976 Mad 147. 2 Jayaram Iyer v. Ramanatha Iyer, AIR 1976 Mad 147. 3 Katihar Jute Mills Ltd. v. Calcutta Match Works Ltd., AIR 1958 Pat 133. 4 Shiv Kant Pandey v. Ishwari Singh, AIR 1997 Raj 155. 5 State Bank of Travancore v. Velayudhan Pillai Bhaskaran Nair, AIR 1996 Ker 32 (paras 8, 9, 12 and 13). 6 Kedarnath Jute Mfg. Co. Ltd. v. Commercial Tax Officer, (1962) 13 Sales Tax cases 138.

4. CARBON COPY [EXPLANATION 2] Where a carbon copy was made by one uniform process, of a certificate of a doctor, given in discharge of his professional duty, and his attendance could not be procured without considerable delay and expense, the copy was held admissible as primary evidence within Exp. (2) of Section 62.

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Two wills in identical language were prepared by the process of typing, in which the second copy was obtained by carbon impression. Both were duly executed and attested. Both were held to be original, and one was not considered a copy of the other. The fact that the testator inserted a remark on one of them "true copy" would not alter their character. 8 Carbon copies of the permits written in hand were issued on behalf of the Central Government Officer, as a general practice, to the licencees for transport of tobacco; they also showed evidence of payments of duty, and there were counter-foils. It was held that the carbon copy was admissible as primary evidence of what it contained for the purpose of comparison of handwriting. 9 The carbon copy of the General Diary entries was retained in the police station for the purpose of the record after sending the original to the Superintendent of Police. It was prepared by the same process by which the first copy was prepared. It was held that such a carbon copy of the General Diary was a primary evidence of the contents of the rest within the meaning of Section 62, Explanation 2 of the Evidence Act. 10 Where a carbon copy of a search list, with certain ink writings on it, was produced, it was held that a mere glance at the document would show that, even apart from the ink writings, the whole of it could not have been made by one uniform process and so it would not satisfy the requirement of Section 62 and, therefore, not admissible. 11 7 Prithi Chand v. State of H.P., AIR 1989 SC 702. 8 Kamala Rajamanikkham v. Sushila Thakur Dass, AIR 1983 All 90. 9 Srirammulu Naidu v. State, (1963) 2 CrLJ 546 : (1962) 1 ALT 57. 10 Rajesh Rai v. State of Sikkim, 2002 CrLJ 1385, 1390 (para 6) (Sikk) : 2002 (3) Cur Cr R 95 : 2002 (2) Rec Cr R 635. See also Md. Yakub Ali v. State of Tripura, 2004 CrLJ 3315, 3318 (para 10) (Gau) : 2004 (2) Gau LT 564 : 2004 (3) Gauhati LR 343; Bhagwanji and Kalyanji v. Panjabhai Hajabhai Rathod, AIR 2007 Guj 88, 89 (para 9). 11 Makhan Lal v. State, AIR 1958 Cal 517.

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5. TAPE RECORDS A tape record is primary and direct evidence of the matter recorded.

12

See also commentary under head 'Tape Recording' in Section 3 and Section 7. 12 Rama Reddy v. Y.Y. Giri, AIR 1971 SC 1162.

6. PHOTOGRAPH When reliance is placed on a photograph, it would be primary evidence. 13 The person taking photographs and developing them has to come to the witness-box and depose about both the facts. 14 When a photographer deposed about his taking the photograph and developing it into a negative by himself, it was held that the negative becomes admissible in evidence, but in the case of an enlarged print, the position is different for no print on enlargement can be admitted in evidence without its negative being produced and proved by the photographer. 15 The document can be marked through the witness by showing it to him, when he asserts and admits the same, but a 'photograph' cannot be equated to such categories of documents which could be marked through cross-examination of witness. Whether a photograph is a correct reproduction of the original, whether it correctly depicts the picture of the location, depend on many factors viz., correctness of lens, state of weather and time taken, photographic skill adopted by the photographer, accuracy of the angle, availability of light and such other factors. The proof of identity of the site, location, object and persons in the photograph could be admitted in evidence only by examining the photographer. The witness who is crossexamined can neither assert nor deny the contents or accuracy of the photograph. While so, the cross-examiner cannot insist for marking the photograph during the cross-examination of either of the opponent or his witnesses. Therefore, it is always desirable to produce the photographs by examining the person who took the photographs or the party who is relying on the photographs or at whose instance the photographs were taken. It cannot be marked during cross-examination of the opponent or his witnesses. In such a case, mere admission of the plaintiff that it is a photograph would not amount to correctness/accuracy of the photography or the angle of the building thereon. 16 13 P.L. Shah v. State of Gujarat, 1982 CrLJ 763 (Guj-DB). 14 Ghewarlal v. Munni Lal Goyal, 1997 AIHC 3413 (para 7) (Raj), relying on Heera Devi v. Bhabha Kantidas, AIR 1977 Gau 31. 15 Laxman v. Ganpati Ansuya Bai, AIR 1976 Bom 264, relied on in Ghewarlal v. Munni Lal Goyal, 1997 AIHC 3413 (para 7) (Raj). 16 P. Rama Srinivasa Rao v Dr. N. Ragavan, AIR 2006 (NOC) 1291(Mad) .

7. PRINTED COPIES Where the plaintiff sent printed notices and the press owner was examined, it was held that the notice was proved. 17 17 Chhaganram v. Naginlal, ILR 1966 Guj 900.

8. BILL OF LADING The Bill of lading is an evidence to establish the fact that the goods were act ually put on board and were received by the master of the ship. Therefore, unless proved otherwise the contents and details mentioned in the bill of lading are presumed to be true and correct. The BOL is a conclusive statement of a contract between the shipper and the ship-owner, unless proved otherwise. 18 18 S.K. Networks Company Ltd v Amulya Exports Ltd., AIR 2007 Bom 15, 21-22 (para 34) : 2006 AIHC 3683.

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Ratanlal & Dhirajlal: Law of Evidence, Updated 23rd Edition/THE INDIAN EVIDENCE ACT (ACT 1 OF 1872)/PART II ON PROOF/CHAPTER V OF DOCUMENTARY EVIDENCE/S. 63.

CHAPTER V OF DOCUMENTARY EVIDENCE S. 63. Secondary evidence. Secondary evidence means and includes-1)   certified copies given under the provisions hereinafter contained; 1)   copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies; 1)   copies made from or compared with the original; 1)   counterparts of documents as against the parties who did not execute them; 1)   oral accounts of the contents of a document given by some person who has himself seen it. ILLUSTRATIONS 1a)   A photograph of an original is secondary evidence of its contents, though the two have not been compared, if it is proved that the thing photographed was the original. 1b)   A copy, compared with a copy of a letter, made by a copying machine is secondary evidence of the contents of the letter, if it is shown that the copy made by the copying machine was made from the original. 1c)   A copy transcribed from a copy, but afterwards compared with the original is secondary evidence; but the copy not so compared is not secondary evidence of the original, although the copy from which it was transcribed was compared with the original. 1d)   Neither an oral account of a copy compared with the original, nor an oral account of a photograph or machine copy of the original, is secondary evidence of the original. 1. GENERAL

This section describes what constitutes 'secondary evidence'. 'Secondary evidence' is evidence which may be given under certain circumstances, in the absence of better evidence which the law requires to be given first. Essentially, secondary is an evidence which may be given in absence of that better evidence which law requires to be given first. As a general rule, it is admissible only in absence of primary evidence. If the original is found to be inadmissible through failure of the party, who files it to prove it to be valid, the same party is not entitled to introduce secondary evidence of its contents. In order to enable a party to produce secondary evidence, it is necessary for the party to prove the existence and execution of the original document. 19 Secondary evidence means and includes:--

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1)   Certified copies; 1)   Copies made from the original by mechanical processes, and copies compared with such copies; 1)   Copies made from or compared with the original; 1)   Counterparts of documents, as against the parties who did not execute them; 1)   Oral accounts of the contents of a document by a person who has seen it. Clause s 1 to 3 deal with copies of documents. This section is exhaustive in regard to the kinds of secondary evidence admissible under the Act. The expression "means and includes in Section 63" makes it clear that the five clause s referring to secondary evidence are exhaustive. Obviously, drafts of the award, from which the award is faired out do not come under any of the clause s (1), (2), (4) & (5); they do not come under clause (3) of the section. However the drafts could be admissible as secondary evidence, if there be evidence to show that they were compared with the original. A piece of written paper cannot be admitted as secondary evidence of the contents of the document simply by its being called a draft. 20 In a case where the original lease deed was filed by the party in a certain office, it was held that secondary evidence can be given in two ways, viz., oral evidence of persons who were present at the time when the lease was granted, or the production of the copy of the original document, duly certified by the officer; but a copy of the original kept by the party cannot be given as a secondary evidence. 21 It was held that any recitation in the judgement about the pleadings is no evidence of what the pleading contains and cannot be treated as secondary evidence. 22 Similarly, a statement of a witness abstracted from a judgement is not secondary evidence. 23 An abstract translation which is a summary of a document or even a complete translation would not come within the meaning of this section. 24 A news item, without any further proof through any witness of what had act ually happened is of no value. It is at best a second-hand secondary evidence. 25 The news item published in the newspaper without bringing on record the name of the correspondent sending such news or information on the basis of which it was published, cannot be relied upon. 26 Newspapers are not secondary evidence of the facts mentioned by them, unless the correspondent who made the report is examined. 27 Newspaper reports, advertisements or messages are not themselves evidence of the contents thereof and are not admissible unless original manuscript is produced and proved by the concerned person. 28 News items published in daily newspapers cannot ex facie be taken to be of such authenticity which may warrant initiation of an action in the proceedings under Article 226 of the Constitution. 29 Where the terms of a document were sought to be proved by a judgment containing a translation thereof in a suit which was not between the same parties or their representatives in interest, it was held that neither the translation of the document nor the statement in the judgment was secondary evidence of the contents of the document. 30 Where the existence of the document was proved from the facts mentioned in the plaint and the reply of the defendants, permission to lead secondary evidence on the ground of loss of the document was held to be proper. 31 Where the document in question is merely a receipt and not a bill of exchange or a promissory note, the permission to lead secondary evidence cannot be refused on the ground of inadmissibility of the primary evidence on account of it being insufficientlystamped as it can be admitted in evidence on payment of penal stamp duty under the Stamp Act . 32 Where the original document is inadmissible as being not duly stamped, secondary evidence of its contents cannot be allowed to be received. 33 However, secondary evidence cannot be made admissible mechanically. Sufficient reason for nonproduction of the original document must be shown. 34 Plaintiffs sought to produce secondary evidence on the ground that originals of the registered agreements were missing whereas they made no mention about the said documents being lost or not being in their possession. Evidence adduced by them showed that the original plaintiff or heir never tried to search for them. It was held that the plaintiffs failed to lay foundation for leading secondary evidence. 35 Where the tenant filed the xerox

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copy of the money receipt without substantiating his plea that the original was lost and the xerox copy was authentic, refusal to accept the xerox copy in evidence was held to be proper. 36 Where a document which has been brought on record is neither a photocopy nor the true copy of the original and, there is no material on record to show that the document has been described as to be true copy, such a document does not come within the ambit of secondary evidence under Section 63 of the Evidence Act. 37 The finding that a certain Exhibit is a secondary evidence cannot be arrived at merely on the basis of a statement by the witness that an order in the nature of the document was passed by the authority. Secondary evidence has to correspond by the contents of the original piece of evidence and care should be taken by the Court to ascertain that sufficient material is produced by the party to substantiate his claim about the truthfulness of such secondary evidence before such evidence being admitted in evidence as the secondary. 38 Secondary evidence is to be adduced before the Judge recording the evidence. It is the Judge, recording evidence, who must decide, if any objection is raised whether or not to admit the secondary evidence in evidence. If evidence is led before a Commissioner the objection to the secondary evidence naturally can only be recorded and not decided by the Commissioner. It is then the Judge hearing the suit who decides the objection. An independent application by way of a Chamber Summons or Notice of Motion is neither required nor desirable. 39 19 J. Yashoda v. K. Shobha Rani, (2007) 5 SCC 730, 733 (paras 7-9). 20 Girdhar Prasad v. Ambika Prasad Thakur, AIR 1969 Pat 218. 21 ILR 1951 Hyd 74. 22 Surya Narayan v. Ratanlal, AIR 1952 Hyd 34. 23 Saradamba v. Pattabhiramayaih, AIR 1931 Mad 207. 24 Md. Sulaeman v. Hariram, (1940) 21 Lah 363. 25 Samant N. Balakrishna v. George Fernandez, AIR 1969 SC 1201. 26 Manmohan Singh v. State of Punjab, 1994 CrLJ 3695 (para 14) (P&H). 27 Bawa Sarup v. R, AIR 1925 Lah 299; Sangappa Anandappa v. Shivamurthi Swamy, AIR 1961 Mys 106; Khilmul Topandas v. Arjundas Tulsidas, AIR 1959 Raj 280. 28 Quamarul Islam v. S.K. Kanta, AIR 1994 SC 1733 (paras 47 and 48). See also C. Sivanandan v. State, AIR 1995 Ker 354 (para 9); Borgaram Deuri v. Premodhar Bora, (2004) 2 SCC 227, 233 (paras 12 and 14) : AIR 2004 SC 1386. 29 Sudha Gupta v. State of Madhya Pradesh (FB), 1999 CrLJ 1742, at p. 1752 (MP). 30 Jagannath v. Secretary of State, AIR 1922 Mad 334. 31 Sobha Rani v. Ravi Kumar, AIR 1999 P&H 21 (para 4). 32 Kundan Mal v. Nand Kishore, AIR 1994 Raj 1 (para 39). 33 Shiv Kant Pandey v. Ishwari Singh, AIR 1997 Raj 155. 34 John Mithalal Desai v. Dineshbhai K. Vora, 1998 AIHC 1894 (paras 12 and 13) (Guj). 35 Yashwant Rambhau Chondhe v. Vilas Bapurao Shinde, AIR 2007 (NOC) 2623(Bom) : 2007 (5) AIR Bom R 525. 36 Anand Kumar Singhal v. Banarsi Lall, 1998 AIHC 2287 (para 9) (Sik). 37 Sunil Kumar v. Anguri Choudhari, 2002 AIHC 3869, 3872 (para 16) (MP). The Court relied on United India Assurance Co. Ltd. v. Anhari, (2000) 10 SCC 523. 38 Gangaram M. Sawant v. Barkelo M. Sawant, AIR 2006 Bom 240, 241 (para 3). 39 Indian Overseas Bank v. Trioka Textile Industries, AIR 2007 Bom 24 (paras 2 and 3).

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2. CERTIFIED COPIES [CLAUSE (1)] Section 76 defines the expression "certified copies". See also Sections 77, 78, 79 and 86. The correctness of certified copies will be presumed under Section 79; but that of other copies will have to be proved. This proof may be afforded by calling a witness who can swear that he had compared the copy tendered in evidence with the original, or with some other person read as the contents of the original and that such is correct. A copy of the Municipal record which is not issued in accordance with the requirements of the Municipal Act, is not relevant. 40 If a registered sale deed is not available, for any reason, certified copy thereof could be adduced as secondary evidence; other evidence if received would always be of a very weak character. 41 Where the applicant for probate does not have the original will, he can file a certified copy along with his application in order to comply with Section 276 of the Succession Act. 42 However, where admittedly the original will was in the possession of the party; but he produced a certified copy of the will instead of the original, it was held that the certified copy of the will was not proper evidence to prove the will. 43 Quashment of the certified copy of Will, marked as exhibit, was sought on the ground that since conditions of Sections 63 and 65 of the Evidence Act were not met, the document could not be admitted as secondary evidence. It was held that mere marking as exhibit does not mean that the document concerned has been proved. Marking is done in pursuance of the new practice introduced by the Supreme Court. 44 It was held that the exhibit was not liable to be rejected. 45 When the original was proved to be lost or destroyed or detained by the opponent or third person who does not produce it after notice, secondary evidence is admissible by production of a certified copy of the document. 46 When the non-availability of the original registered adoption deed has been explained, a certified copy of the document is admissible in evidence. 47 Copies of registered documents are admissible as secondary evidence where the person in whose custody the original should be swears that they are not with him though there is no evidence as to the loss or otherwise of the original. 48 When a registered sale deed is copied in the book under the Registration Act , which is a public document, the certified copy of the sale deed issued by the Registrar's Office can be admitted as secondary evidence.49 Certified copy of a moneylender's license is admissible licence. 50 When the execution of the original was proved from the endorsement of the registrar, the certified copy was held to be admissible 51 but where service of the original letters upon the defendant was not proved, their copies carried little evidentiary value. 52 A deposition can be proved by a certified copy but the fact that is the deposition of the deponent himself has got to be proved aliunde . 53 A certified copy of a 30 years old gift deed, obtained from the document or original maintained by the Sub-Registrar's Office, carries a presumption about execution under Section 90 of the Evidence Act . 54 Though a certified copy of a document (sale deed) is as good as the original, and its correctness is presumed, mere registration is not proof of its execution. The execution, i.e., the signature of the executant, must be proved to be in his handwriting, and the contents of the certified copy must be proved in the ordinary way. 55 A certificate issued by a registrar is to some extent evidence of the execution of the document, and the admission of the signature before the registrar by the executant can be evidence of the execution of the document. 56 Reliance can be placed on the recitals of the true copy of the document mentioning amicable partition issued from the office of the Sub-Registrar bearing his seal and signature, particularly in view of the conflicting oral evidence. 57 Certified copies of the Rules of Business made under Article 166(3) of the Constitution are admissible in evidence and judicial notice has to be taken of those rules as they are statutory rules. 58 Under Section 63 read with 79 of the Act, a certified copy of a document can be admitted without any formal proof. 59

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In the case of a sale deed of 1896, when the party failed to prove the loss of the original but produced a certified copy, for proving the contents of the document, it was held that mere production of a certified copy would not be sufficient to justify the presumption of due execution of the original under Section 90. 60 A certified copy is sufficient secondary evidence under Section 63, of the existence, and contents of the deed, but not of its execution, which must be proved as required under Section 68 of the Evidence Act . 61 Where the existence of a document was admitted, it was held that, by such admission, secondary evidence furnished by a certified copy assumes the character of primary evidence. 62 40 Ganesh Prasad v. Badri Prasad Bhola Nath, AIR 1980 All 361. 41 Nanibai v. Gitabai, AIR 1958 SC 706; State of Rajasthan v. Jeoraj, AIR 1990 SC 90; Land Acquisition Officer v. N. Venkata Rao, AIR 1991 AP 31(FB) ; K.M. Shaffi v. Dayamathi Bai, 1999 AIHC 4071 (para 22) (Kant), relying on Kalyan Singh v. Smt. Chhoti, AIR 1990 SC 396; holding G.C. Papanna v. Kenchamma, ILR 1998 Kant 3450 per incuriam and distinguishing Sital Das v. Sant Ram, AIR 1954 SC 606. 42 Rajrani Shegal (Smt.) v. Parshottam, AIR 1992 Del 134. See also Chatra Pratap Singh v. Tulsi Prasad, 2000 AIHC 4031 (para 6) (MP); Hameed v. Kanhaiya, AIR 2004 All 405, 415 (para 40) : 2004 All LJ 3654 : (2004) 57 All LR 51 : 2005 (1) Civil Court C 146 : 2004 Rev Dec 559. 43 Sheshrao M. Kurtkar v. Keshavrao M. Kuratkar, AIR 2006 Bom 33, 35 (para 9). 44 Bipin Shantilal Panchal v. State of Gujarat, AIR 2001 SC 1158 : (2001) 3 SCC 1. 45 K. Subramani v. P. Rajesh Khanna, AIR 2009 (NOC) 1482(Mad) . 46 Sanatan Mohanty v. Baidhar Rout, AIR 1986 Ori 66; S.K. Moula-Buksh v. Dharam Chand Raniwalla, (1961) 65 Cal WN 881. 47 Kartar Singh v. Dasaundha Singh, 1972 Cur LJ 130(Punj) . 48 Hutchegowda v. Chennigegowda, AIR 1953 Mys 49. 49 Rama Chandra Mahji v. Humbai Majhi, AIR 1989 Ori 27. 50 Shivalingarah v. Chandrasekhara, AIR 1993 Kant 29. See also K. Shivalingaiah v. B.V. Chandrashekara Gowda, AIR 1993 Kant 29 (para 18). 51 1970 Pat LR 342. 52 J. Patel & Co. v. National Federation of Industrial Co-operatives Ltd., AIR 1996 Cal 253 (para 8). 53 State v. Abdul Qaywm Anwari, ILR 1956 Hyd 436. 54 Shivaji T. Sonavale v Parvathibai B. Pawar, 2007 AIHC 2065, 2068 (para 18) (Kant). 55 Lourembam Hernant Singh v. Laishram Angabal Singh, AIR 1979 Gau 68. 56 Gurbux Singh v. Bishan Dass, AIR 1970 Punj 182. 57 Monoranjan Paul v. Narendra Kumar Paul, AIR 1994 Gau 64 (para 11). 58 Management of the Advance Insurance Co. Ltd. v. Gurudasmal, Supdt. of Police, AIR 1969 Del 330. 59 1970 All WR (HC) 69. 60 Sardaran (Mst.) v. Sunderlal Baldeo Prasad, AIR 1968 All 363. See also Nathmal v. Urban Development Trust, Bikaner, AIR 2009 Raj 60 (para 6). 61 Brajraj Singh v. Yogendrapal Singh, AIR 1952 MB 146, relying on Sheikh Karimullah v. Gudar, AIR 1925 All 56; Dy. Commissioner of Partabgarh v. The Universal Film Co. Ltd., AIR 1950 All 696. 62 Lakshmi Kanto Roy v. Nishi Konto Roy, (1967) 71 Cal WN 362.

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3. COPIES PREPARED BY MECHANICAL PROCESS [CLAUSE (2)] This clause deals with copies prepared by mechanical process and copies compared with such copies. In the former case, as the copy is made from the original it ensures accuracy. To this category belong copies by photography, lithography, cyclostyle, carbon copies. Section 62 explanation (2) states that, where a number of documents are made by one uniform process, as in the case of printing, lithography, or photography, each is primary evidence of the contents of the rest; but where they are all copies of a common original, they are not primary evidence of the contents of the original. Illustrations (a ) concerns the first Part of Clause (2). It deals with a photograph of an original, and it is admissible under this section though the copy and the original have not been compared, provided it is proved that the thing photographed was the original. Illustrations (b ) states that a copy compared with a copy of a letter made by a copying machine is secondary evidence of the contents of the letter, if it is shown that the copy made by the copying machine was made from the original. This refers to the second part of Clause (2). Illustrations (c ) says that a copy transcribed from a copy, but afterwards compared with the original is secondary evidence; but the copy not so compared is not secondary evidence of the original, although the copy from which it was transcribed was compared with the original. Copies of copies kept in a registration office, when signed and sealed by the registering officer, are admissible for the purpose of proving the contents of the originals. 63 When the prosecution does not establish that the copies in question were made from originals by mechanical process, no reliance can be placed by the prosecution on those copies. 64 Letter press copies and photographs of writings are secondary evidence. 63 Section 57(5), Act XVI of 1908. 64 Subramanya v. State, (1976) 1 Kant LJ 178 : 1975 Mad LJ 31(Cri) .

4. COUNTER FOILS The counter foils of rent receipts being an admission in favour of the landlord are not admissible against the tenant. 65 65 Minati Sen v. Kalipada Ganguly, AIR 1997 Cal 386, distinguishing Idandas v. Anant Ram Chandra Phadke, AIR 1982 SC 127.

5. FAX COPY Where the contents of the fax could not be proved by the person who received it, he could also not show when the fax was received and from whom, and it had also not been shown that the accused was the person who obtained the fax from the person who received the same in the PCO, in such circumstances it was held that the same was not admissible in evidence. Further the xeroxed copy of the said fax had not been proved in the strict sense of the term. No secondary evidence (xeroxed copy of fax) could be led to prove another secondary evidence (fax copy). Contents of the document are required to be proved. 66 66 Directorate of Revenue v. Mohammed Nisar Holia, (2008) 2 SCC 370, 379-80 (para 19). See also Atul Products Ltd. v. Y.P. Mehta, AIR 2009 Bom 84, 91 (para 30).

6. PHOTOGRAPHS

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H ALSBURY 67 states: "Photographs properly verified on oath by a person able to speak to their accuracy are generally admissible to prove the identity of persons, or of the configuration of land as it existed at a particular moment, or the contents of a lost document." "X-ray photographs are admissible in evidence to determine the extent of a physical injury or disease, provided it is proved that the photograph is a photograph of the person injured or diseased. The person who took the photograph should be called, unless his evidence is dispensed with by consent". P HIPSON 68 states: "A copy made by a copying machine is regarded only as a secondary evidence of the original. And printed, lithographed and photographed copies--though, as we have seen, primary evidence of each other's contents--are merely secondary evidence of the common original...the accuracy of a photographic copy, particularly of external objects, must, like that of a map or plan, be established on oath, to the satisfaction of the judge, either by the photographer or by someone who can speak to its correctness. Where the photograph is tendered merely as a general representation of physical objects, slighter proof will be required than when matters of detail are all-important, as in cases of disputed handwriting. In a criminal case, a photograph has been held admissible to show the permanent and material structure of a house, but not the interior disposition of the furniture, etc., which was required to be proved by witnesses". A photographic picture cannot be relied on as proof in itself of the dimensions of the depicted object or objects, and cannot be made properly available to establish the relative proportions of such objects, except by evidence of personal knowledge or scientific experience to demonstrate accurately the facts sought to be established. 69 Photographs, and particularly photographs of persons, taken several hours after the death are very unsafe guides for gauging the build and strength of a person, because the physical and chemical changes that follow physical violence and death make this obvious. 70 Whether a photograph, is a correct reproduction of the original depends on many facts such as correctness of the lens, the state of the weather, the skill of the operator, the colour of the impression, the purity or the chemical accuracy of forming the angle at which the original was inclined to the sensitive plate, the possible fraud of the operator, etc. The magnified photographic copies of it can be safely received in evidence even without examining the photographer, as the accuracy of the copies can be readily tested by comparison with the original if necessary. That as shown in Illustrations (a ) the negatives and the photographic prints are secondary evidence of the original (cheque) which is the primary evidence. 71 The accuracy of the photographic copies, particularly of external objects, as shown in the photograph, is to be established on oath, to the satisfaction of the court, either by the photographer or some one who can speak to their accuracy. 72 Before admitting a photograph, the person who took the photograph has to be examined, and he should produce the negative. 73 67 4th Edn. Vol. 17 (para 224), p. 158. 68 13th Edn. Page 892 (para 36-17). 69 United States Shipping Board v. The Ship 'St. Albans', AIR 1931 PC 189, 194. 70 In re : Shivanna, AIR 1955 Mys 17. 71 Brahma v. Chartered Bank of India, AIR 1956 Cal 399. 72 Latino Andre v. Union Government, AIR 1968 Goa 132. 73 Sabera Begum v. G.N. Ansari, 1979 Bom CR R 110 (Bom). See also State v. Bharat alias Bhupendra, 1991 CrLJ 978(Guj) . See also Arun Balkrishnan Iyer v. Soni Hospital, AIR 2003 Mad 389, 401 (para 27).

7. XEROX COPY A xerox copy of the forensic report sent by Forensic Science Laboratory after certifying the same as true copy, was held to be admissible in evidence as officer of the Forensic Science Laboratory had no interest in concocting report against the accused. 74

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Xerox copies in absence of the original should not be permitted to be marked. 75 It is well-known fact in the process of preparing a xerox copy, there can be several manipulations. Hence it is unsafe to act upon such a xerox copy. 76 Xerox copy of a document was held to be inadmissible as it was not a substantive piece of evidence. 77 A xerox copy of an unregistered partition deed was held to be not an instrument but at best it might be treated as a piece of secondary evidence. 78 Xerox copy of a document would not fall within the meaning of instrument. The said document cannot be received as evidence even on condition of stamp duty and penalty. 79 Where the original agreement for sale was not properly stamped, the xeroxed copy of the same could be accepted by the court as secondary evidence in a suit for specific performance. 80 An attested copy cannot be said to be secondary evidence as the person who has attested has not come forward to prove the accuracy of the contents of the said copy. 81 74 Gulam Nurmamad Theim v. State of Gujarat, 2003 CrLJ 356, 365 (para 14) (Guj) : 2002 (3) Guj LR 2642 : 2002 CrLR (SC, Mah Guj) 757. 75 G. Mathivanan v. P. Saravanan, AIR 2007 (NOC) 1852(Mad) . 76 Ganpat Pandurang Ghongade v. Nivrutti Pandurang Ghongade, AIR 2008 (NOC) 2571(Bom) : 2008 (4) AIR Bom R 132. 77 State of Karnataka v. M. Muniraju, AIR 2002 Kant 287, 310 (paras 57 & 58), relying on Lallan Prasad Chunnilal Yadav v. S. Ramamurthi, AIR 1993 SC 396 : (1992) 3 SCC 498; Sital Das v. Sant Ram, AIR 1954 SC 606; Chandrakantaben v. Vadilal Bapalal Modi, AIR 1989 SC 930; Govt. of A.P. v. K.C.V. Reddy, AIR 1994 SC 591 : 1995 Supp (1) SCC 462 and Sait Tarajee v. Yelamarti Satyam, AIR 1971 SC 1865 : (1972) 4 SCC 562. See also All India Anna Dravida Munnetra Kazhagam v. L.K. Tripathi, AIR 2009 SC 1314, 1328 (para 31). 78 C. Sreedhara Raja v. S. Vittba Rao, AIR 2005 AP 322, 324 (paras 16-17). 79 Sunkara Surya Prakash Rao v. Madireddi Narasimha Rao, AIR 2009 (NOC) 1682(AP) . 80 Dinesh Kumar Soni v. Bhanwar Singh AIR 2007 (NOC) 1976(Cal) . See also Sushila Devi v. Additional District Sessions Judge, (Fast Track) No.2, Jaipur, AIR 2007 Raj 241, 242 (para 8). 81 Labanya Prova Mitra v. Purnendu, AIR 2007 (NOC) 1164(Cal) (DB).

8. PHOTOSTAT COPY A photostat copy of a letter is a piece of secondary evidence, and it can be admitted in case original is proved to have been lost or not immediately available, for given reasons; it is not conclusive proof in itself of the truthfulness of the contents contained therein. 82 Photostat copies of documents should be accepted in evidence after examining the original records as genuineness of a document was a fundamental question. 83 The witness can be shown and questioned as regards the xerox copy of the document on record and the same will not amount to admission of the said document in evidence. If the witness admits the signature thereon, an objection can be raised at that time before the Court that the document, being a copy, could not be exhibited. 84 In a case where the photostat copy of the original was produced, and there was no proof of its accuracy or of its having been compared with, or its being true reproduction of, the original it was held that the photostat copy cannot be considered as secondary evidence, as necessary foundation for its reception was not laid. 85 A photostat copy of a document is not admissible as secondary evidence unless proved to be genuine or the signatory accepts his signature. 86 Where a photostat copy of a document was endorsed by the counsel of the party as a true copy, it was held that it may be received as secondary evidence. 87 Photostat copy of a rent note, though not compared with the original, is admissible as secondary evidence. 88 Where the photostat copy of a document was admitted by the prosecution, its proving is not required by another evidence and the prosecution shall have no right to challenge its admissibility. 89 A photostat copy of the dying declaration can be used as secondary evidence as per provisions under Sections 63 and 65 of the Evidence Act . 90

80

Where the photostat copy of the agreement showed that the original instrument bore the stamp of sufficient amount but of improper description, the same could not be admitted as secondary evidence. 91

82 1978 JKLR 107. See also Ram Pal Singh v. Syndicate Bank, AIR 2000 P&H 296 (paras 5 and 7). 83 Govt. of A.P. v. Karri Chinna Venkata Reddy, AIR 1994 SC 591 (para 2). See also Northland Traders v. Bank of Baroda, AIR 1994 All 381 (para 5). Ex parte decree based on written agreement & documents whose only photocopies produced and not originals, decree set aside, Goyal MG Gases Ltd. v. Premium International Finance Ltd., AIR 2007 (NOC) 920(Del) . 84 Ahmedabad New Textile Mills v. Rajubhai Dalchandbhai, AIR 1999 Guj 148 (para 4). 85 British India Steam Navigation Co. Ltd. v. Shanmugha Vilas Cashew Industries, Quilon, (1974) 2 Ker 150. 86 Subarna Barik v. State of Orissa, AIR 1976 Ori 236. See also Ashok Dulichand v. Madhavlal Dube, AIR 1975 SC 1748 : (1976) 1 SCR 246; Jai Prakash Singh v. State of Bihar, 2006 CrLJ 4245, 4246 (para 5) (Pat). 87 British India Steam Navigation Co. Ltd. v. Shanmugha Vilas Cashew Industries, (1974) 2 Ker 150. See also L.S. Sadapopan v. K.S. Sabarinathan, AIR 2002 Mad 278, 282, 283. 88 Ratan Sharma v. Ambesedar Drycleaners, AIR 1997 Raj 75, distinguishing Chandanbai v. Jagjiwanlal, AIR 1958 Raj 110. See also D. Sarasu v. Jayalakshmi, 2001 AIHC 2484 (para 11) (Mad). 89 R.N. Kapoor v. State of U.P., AIR 2006 (NOC) 1240(All) : 2006 (4) ALJ 484. 90 Rajantabai S. Parihar v. State of M.P., 2007 CrLJ 2495, 2498 (para 8) (MP). 91 Hariom Agrawal v. Prakash Chand Malviya, AIR 2008 SC 166.

9. CARBON COPY A carbon copy of a signature is a piece of secondary evidence within the meaning of Section 63(2) of the Evidence Act, being a copy made by a mechanical process which ensures its correctness. 92 In a claim petition, the original insurance policy was not filed by the owner of the vehicle. He did not object to the genuineness of the printed copy of the policy giving particulars filed by the Insurance Company. He could not be allowed to raise objection that the same could not be read as evidence. 93 92 Nityananda Roy v. Rashbehari Roy, AIR 1953 Cal 456. 93 Amrit Kaur v. Chaman Lal, AIR 1994 HP 21 (para 18).

10. TYPED COPY A typed copy of an alleged partition deed without alleging that the document falls under one of categories enumerated in Section 63 of the Evidence Act, could not be held to be a secondary evidence. 94 94 Katakam Vishwanathan v. Katakam Chima Srirama Murthy, AIR 2004 AP 522, 524 (para 9) : 2004 (3) Andh LT 791 : 2004 (3) Andh LD 338 : 2004 (4) Civ LJ 669 : 2004 (21) Ind LD 248.

11. TAPE RECORDS In the case of a tape-recording, which was referred to by the petitioner in support of his assertions as regards the substance of what passed between him and the Chief Minister of Punjab on several matters, there was no denial of the genuineness of the tape-record; and there was also no assertion that the voices of the persons were not those which they purported to be. On those facts, the Supreme Court held that the tape-recordings can be legal evidence by way of corroborating the statement of a person who deposes that the other speaker and he carried on that conversation, or even of the

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statement of the person who may depose that he overheard the conversation between the two persons and that what they actually stated had been tape-recorded. What weight is to be attached will depend on other factors which may be established in a particular case. 95 In Yusuf Alli Osmail v. State of Maharashtra, 96 it was held that if a statement is relevant, an accurate tape-record of the statement is also relevant and admissible; that the time and place and accuracy of the recording must be proved by a competent witness, and the voices must be properly identified; that one of the features of magnetic tape-recording is the ability to erase and re-use the recording media; that, because of this facility of erasure and re-use, the evidence must be received with caution, and the court must be satisfied beyond reasonable doubt that the record has not been tampered with. 1 The Supreme Court held that the tape itself is primary and direct evidence of the matter recorded, that it is admissible not only to corroborate under Section 156 of this Act but also for contradiction under Section 155(3) for testing the veracity of the witness under Section 146(1), and for impeaching his impartiality, under exception (2) of Section 153. 2 Where the voice is denied by the alleged maker thereof, recording of a voice of a witness for comparison with, and identification of the earlier recorded voice is neither expressly nor impliedly prohibited under any statute. 3 Statements in the tape-recorder can be admitted after proving that they were accurately recorded. 4 A previous inconsistent statement recorded on the tape-recorder is admissible for the purpose of contradiction. 5 Where the cassette containing the speech of the returned candidate in the election, tape-recorded by the police officer, was tendered in evidence by the election petitioner but how and why it came to be recorded and how the petitioner came to know about it, was not explained by him, it was not relied upon as a piece of evidence. 6 The Supreme Court observed: 7 "The conditions for admissibility of a tape recorded statement may be stated as follows:-1.   The voice of the speaker must be duly identified by the maker of the record or by others who recognise his voice. In other words, it manifestly follows as a logical corollary that the first condition for the admissibility of such a statement is identification of the voice of the speaker. Where the voice has been denied by the speaker, it will require very strict proof to determine whether or not it was really his voice. 1.   The accuracy of the tape-recorded statement has to be proved by the maker of the record by satisfactory evidence, direct or circumstantial. 1.   Every possibility of tampering with or erasure of a part of a tape recorded statement must be ruled out, otherwise it may render the said statement out of context and, therefore, inadmissible. 1.   The statement must be relevant according to the rules of the Evidence Act. 1.   The recorded cassette must be carefully sealed and kept in safe or official custody. 1.   The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbances". A taped conversation, not compared with the voice, was not allowed as evidence.

8

95 Partap Singh v. State of Punjab, AIR 1964 SC 72 : (1964) 4 SCR 733, on appeal from Partap Singh (Dr.) v. State of Punjab, AIR 1963 Punj 298; Mahabir Prasad Verma v. Dr. Surinder Kaur, AIR 1982 SC 1043 followed in State v. Ravi, 2000 CrLJ 1125 (para 56) (Del). 96 AIR 1968 SC 147 : (1967) 3 SCR 720. 1 Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdas Mehra, 1975 SCR 281(Sup) : AIR 1975 SC 1788; Malkani v. State, (1973) 2 SCR 417 : AIR 1973 SC 157; R. Venkatesan v. State, 1980 CrLJ 41(Mad) ; Sumitra v. Calcutta Dyeing Co., AIR 1976 Cal 99; relying on R v. Robson, (1972) 2 All ER 699; R v. Maqsud, (1965) 2 All ER 464; R v. Stevenson, (1971) 1 All ER 678; Ram Singh v. Col. Ramsingh, AIR 1986 SC 3.

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2 Ramareddy v. V.V. Giri, AIR 1971 SC 1162 : (1971) 1 SCR 399. 3 Dial Singh v. Rajpal, AIR 1969 P&H 350. 4 Manindra Nath v. Biswanath, 67 Cal WN 191. 5 Rupchand v. Mahabir, AIR 1956 Punj 173. 6 Quamarul Islam v. S.K. Kanta, AIR 1994 SC 1733 (paras 56t and 57). 7 Ram Singh v. Col. Ram Singh, AIR 1986 SC 3 at p. 11. See also K.S. Mohan v. Sandhya Mohan, AIR 1993 Mad 59 (paras 13 and 14). 8 Joginder Kaur v. Surjit Singh, AIR 1985 PH 128.

12. COPIES MADE FROM OR COMPARED WITH ORIGINAL [CLAUSE (3)] Copy.-- Copies made from the original, or copies compared with the original, are admissible as secondary evidence. A copy of a copy, when compared with the original, would be receivable as secondary evidence of the original. [Illustrations (b )]. A copy of a certified copy of a document, which has not been compared with the original, cannot be admitted in evidence, such a copy being neither primary nor secondary evidence of the contents of the original. 9 When a document is an accurate or true and full reproduction of the original, it would be a copy.

10

To admit secondary evidence, it is not sufficient to show merely that the original document is lost; the secondary evidence itself must be of the nature described in Section 63. A "true copy" of a document will not be admissible under Section 63, unless it is shown that it had been made from or compared with the original. 11 Ordinary copy of a sale deed cannot be admitted as secondary evidence 12 but copies of sale-deeds of acquired land are admissible in evidence, provided the parties to the document are examined to prove the document. 13 The Supreme Court, dealing with Sections 14 of the Arbitration Act , explained the meaning of the expression "signed copy of award" and observed: "Signing means writing one's name on some document or paper; so long as there is the signature of the arbitrator or umpire on the copy of the award filed in court, and it shows that the person signing, authenticated the accuracy or correctness of the copy, the document would be a signed copy of the award; it would in such circumstances be immaterial whether the arbitrator or umpire puts down the words "certified to be true copy" before signing the copy of the award above his signature; when a document is an accurate or true and full reproduction of the original, it would be a copy". 14 Where the plaintiff, in a suit for ejectment, produced a copy of the notice to quit, in proof of the fact that the notice was valid, and the original was in possession of the other party, and the plaintiff swore that it was a true copy of the original, it was held that it was not necessary that the scribe of the copy should be produced, that any one who had heard the original and the copy read out to him, might swear that the contents of the two were identical, and it would be admissible. 15 Where a handwritten copy of the adoption deed was tendered in evidence, in the absence of evidence as to who made the copy, from what it was made, or whether it was compared with the original, it must be disregarded. 16 Section 63(3) refers to two types of copies: 2)   2)  

A copy made from the original; A copy compared with the original.

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A copy falling under either of the two heads will be admissible as secondary evidence.

17

The original dying declaration was lost. A head constable who maintained a copy testified to its accuracy. This was allowed as corroborative evidence. 18 A certificate as to the date of birth, on the basis of an entry in the register of a church, maintained in the regular course, is not admissible. 19 Where a copy of report which was typed by a typist was not a copy typed by him nor was it a carbon copy it was held not admissible as secondary evidence. 20 An abstract translation or a complete translation of a document is not 'copy made from and compared with the original' within the meaning of this clause . 21 A copy of the original letter addressed by the Government to the Commissioner, prepared privately by a party at the time of inspection of relevant file, was held not secondary evidence of the original letter. 22 Where a defendant did not state anywhere in his evidence or produce evidence that the document tendered is a copy made from the original, or that it was compared with the original, and when he failed to prove by evidence the conditions for invoking Section 63, it was held that the document tendered could not be received as secondary evidence under Section 63(1) or (2) or (3) of the Evidence Act . 23 Where a printed copy purports to bear the signature of the candidate's agent in an election, it was held that the candidate's signature does not establish the fact that he really signed it, when the original was not produced by the printer and proprietor of the press where the copies were printed. 24 When a document was admitted without objection, it was held that omission to object to its admission implied that it was a true copy, and it was not open to the appellate court to consider whether the copy was properly compared with the original or not. 25 An entry in a deed-writer's register, which contains all the essential particulars contained in the document itself and is also signed or thumb marked by the person executing the document amounts to a copy and is admissible in evidence. 26 Where a draft of a document is made and on that basis an original is prepared it was held that the draft cannot be treated as secondary evidence. 27 but the Kerala High Court has held that a draft can be accepted in evidence if there is proof that the original has been prepared without any corrections and that it is an exact copy of the draft. 28 The Allahabad High Court has similarly held that Section 63 is not exhaustive of all types of secondary evidence. It, therefore, allowed the draft notice from which the final notice was prepared to be produced as secondary evidence. 29 It is not necessary for the proof of the bye-laws of a company, that the original copy of the bye-laws bearing any mark of approval of the Board of Directors be produced. The bye-laws can be proved by other evidence. 30 9 Ram Prasad v. Raghunandan Prasad, (1985) 7 All 738, 743; Narasimham v. Babu Rao, AIR 1939 Mad 340; Bank of Baroda, Bombay v. Shree Moti Industries, Bombay, AIR 2008 Bom 201, 204-05 (para 25). 10 Hindusthan Construction Ltd. v. Union of India, AIR 1967 SC 526 : (1967) 1 SCR 843. 11 Parekh Brothers v. Kartick Chandra Saha, AIR 1968 Cal 532. 12 Kalyan Singh v. Chhoti, AIR 1990 SC 396. 13 Spl. Deputy Collector, Madras v. P. Mathusoothanan, 2000 AIHC 3010 (paras 13 and 14) (Mad). 14 Hindusthan Construction Co. Ltd. v. Union of India, AIR 1967 SC 526 : (1967) 2 SCJ, 219. 15 Babulal v. Gangasaran, AIR 1952 All 48. 16 Laxman Ganpati v. Anusuyabi, AIR 1976 Bom 264. 17 Harijiwan Sahu v. Jairam Sahu, AIR 1989 Pat 96. 18 Aher Ram Gova v. State of Gujarat, 1979 CrLJ 1081 : AIR 1979 SC 1567. 19 Harendra Nath Burman v. Suprova Burman, AIR 1989 Cal 120. 20 R.M. Pandye v. Automobile Products of India Ltd., AIR 1956 Bom 115.

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21 Muhammad Suleman v. Hari Ram, (1940) 21 Lah 363. 22 Nurmahamed v. Md. Abdul Karim, AIR 1970 Manipur 7. 23 Patel Maganbhai v. Patel Ishwar Bhai, AIR 1984 Guj 69. 24 Ghayar Ali Khan v. Keshav Gupta, AIR 1959 All 264. 25 Chhatra Kumari Debi v. Parbati Kuer (Mst.), AIR 1936 Pat 600; Latchayya Subudhi v. Seetaramayya, AIR 1925 Mad 257; Kedarnath v. Pradhan, AIR 1937 Nag 13; Ramlochan Misra v. Pandit Harinath Misra, AIR 1922 Pat 565; Basanta Kumar Das v. Bihayak Das & Ors., 1974 Cut LT 1214; Padman v. Hanwanta, AIR 1915 PC 111. 26 Sant Ram v. Ghasitaram, ILR 1956 (9) Pun 193. 27 Devichand v. Hari Kishan Das, (1952) 2 All 531. 28 P. Kunhammad v. Moosankutty, AIR 1972 Ker 76. 29 Lachcho v. Dwari Mal, AIR 1986 All 303. 30 Dalmia v. Delhi Administration, AIR 1962 SC 1821.

13. COPIES OF COPIES Illustration (c ) lays down in express language that "a copy transcribed from a copy, but afterwards compared with the original is secondary evidence; but a copy not so compared is not secondary evidence of the original, although the copy from which it was transcribed was compared with the original. 31 A copy of a copy is held admissible if the prepared copy is compared with the original, or a copy of the original is taken by means of a mechanical process. 32 The certified copies of sale-deeds are admissible in evidence but they cannot be relied upon without examining the persons connected with the same and the parties thereto. 33 A genuine copy of the original can be looked into as secondary evidence under Section 63 but not a copy of a copy. 34 A copy of a copy can be admitted in evidence by consent of the parties, as it is open to the opposite party to dispense with strict proof of the document. 35 A copy of a copy is inadmissible when the original itself was not accounted for satisfactorily.

36

However, a copy of a copy which was kept in the Registration Office and signed and sealed by the registering officer, as required under Sections 57(5) of the Registration Act, is admissible for proving the contents of the original.37 A record printed in the High Court is not a copy made from or compared with the original but only copy of a copy. In the absence of evidence that the printed copy had been compared with the original, it could not be treated as secondary evidence of the original under Section 63(3). 38 A copy of the office copy of a sale deed, issued by an official receiver, cannot be taken to be a certified copy and therefore inadmissible under Section 63(3). 39 Where a document is a copy of the copy, and the person who made that copy does not give evidence, the document is inadmissible. 40 Where a person made a pencil copy from the original and a fair copy was made from that pencil copy, it was held that the copy of the copy is neither admissible nor could be proved. 41 Where the original mortgage deed was unregistered it was held that secondary evidence by a copy of a copy of the mortgage deed was not admissible. 42 The decision in Alapathi Narasinhaw v. Ailoori Baburao 43 distinguished an earlier Madras decision in Ganapathi Aiyar v. Sankasayappa Mudliar 44 , on the ground that the earlier practice was that the printing was being done by the Government Printing Press and before the final order for striking was given the proofs were compared with the original, but later the practice was changed into comparison of the proof with the typed copies sent to the press.

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31 Krishna Subala Bose (Smt.) v. Dhanapati Dutta, AIR 1957 Cal 59; Suganchand v. Balchand, AIR 1957 Raj 89; Rajendra Narayana Singh Dev v. Biharilal Chakravarthy, AIR 1932 Pat 157; Commissioner of Wakfs v. Kawah, 58 Cal WN 533; Badrunnisa Begum v. Mohamooda Begum, AIR 2001 AP 394 (para 5). 32 Hanuman Box Agarwalla v. Bibhuti Prosad Singh, AIR 1950 Assam 17. 33 A.P.S.R.T.C. v. P. Venkaiah, AIR 1997 SC 2600. 34 Aswini Kumar v. Union Territory of Tripura, AIR 1969 Tri 26. 35 Narasayya v. Krishnamurthi, AIR 1928 Mad 1255. 36 Mahadeva v. Virabasava, AIR 1948 PC 114; Raja Neelard Singh v. Naseeb Singh, 6 WR 80. 37 Suganchand v. Balchand, AIR 1957 Raj 89. 38 Subrahmanya Sastry v. Lakshmi Narasamma, AIR 1958 A.P. 22; relying on Narasimham v. Babu Rao, AIR 1939 Mad 40. 39 Ramagopal Naicker v. Muthu Krishna Ayyar, AIR 1957 Mad 1. 40 Suganchand v. Balchand, AIR 1957 Raj 89; Narendra v. Rajendra, AIR 1941 Cal 526. 41 Union of India v. Omprakash Gupta, (1969) 2 Punj 473. 42 Yasin Baig v. Haranarayan Agarwalla, ILR 1970 Cut 711. 43 AIR 1939 Mad 40. 44 AIR 1929 Mad 187.

14. COUNTERPARTS [CLAUSE (4)] A tenant filed receipts issued by the landlord to show that the lease granted to him was a yearly one. When the landlord wanted to show that it was a monthly tenancy, by tendering the counterfoils of receipts, it was held by the Supreme Court that the entries in the counterfoils, being an admission in his own favour, were not admissible against the tenant, and they cannot be called counterparts of the lease. 45 45 Idandas v. Anant Ramachandra, AIR 1982 SC 127.

15. ORAL ACCOUNTS [CLAUSE (5)] Secondary evidence includes, according to clause (5), oral accounts of the contents of a document, given by some person who has himself seen the original document. 46 But, a written statement of the contents of a copy of a document, the original of which the person making the statement has not seen, cannot be accepted as secondary evidence. 47 The Privy Council in Ma Mi v. Kallander, 48 explained the import of Clause (5) thus: "It means that the oral evidence of the contents of the document must be given by some person who has seen the contents, that is, to say, who had read the document. Evidence that the witness saw the document and heard it read out by someone else is only hearsay, so far as the contents are concerned, and does not fulfil the requirements of Section 60 as to the oral evidence generally." 49 A person who is unacquainted with the language (Persian character in that case) in which the document was written, cannot read the document and so cannot give secondary evidence. 50 The Privy Council, in Munnalal v. Mst. Kashibhai 51 held that the statement as to the contents of a document by a witness who has not himself read the document, is not secondary evidence of the contents of the document, within the meaning of Section 63(5) of the Act . 52

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The clause does not necessarily mean that a witness who is called to give evidence as to a lost document must have himself read the document. He would be a competent witness if he, having physically seen the document, had the contents thereof read out or explained to him. 53 Secondary evidence of an endorsement on a railway receipt can be given by a witness who had himself made it or seen it. 54 Where an attesting witness proved the contents of a will, it was held that the evidence was good secondary evidence within Section 63(5), when the original had been lost. 55 Where the original of a survey and settlement report which was based on a Jamabandi, was not produced and was not admitted or exhibited in evidence, it was held that the report cannot be treated as secondary evidence of the contents of the Jamabandi. 56 It was held that oral evidence of a witness, for proving entries in a diary which was neither tendered as evidence nor was one maintained by him, is not admissible. Even if the witnesses used the diary for refreshing his memory, his evidence is inadmissible, as the diary did not amount to a document as contemplated by Section 63. 57 In regard to the computation of the market value of an acquired land, on the basis of sales during the past 5 years, evidence of the person who prepared a sales statement is not admissible as secondary evidence of the sale deeds. 58 In respect of the contents of a lost document, it was held that the effect of Sections 59, 61, 62(5) and 65 read together, is that the contents of a lost document may be proved by oral evidence, when such evidence is admissible as secondary evidence. 59 46 Ma Mi v. Kallander Ammal (No. 2), (1926) 54 IA 61 : 29 Bom LR 800 : ILR 5 Ran 18 : AIR 1927 PC 15. 47 Kanayalal v. Pyarabai, (1882) 7 Bom 139. 48 AIR 1927 PC 16 : 54 IA 61 at 65. 49 Kallander Ammal v. Ma Mi , ILR 2 Rang : 1924 R 363; affirmed, see also Trimbak Narayan v. Yadorao Shankar Rao, AIR 1940 Nag 116; Mangilal v. Ram Dayal, AIR 1951 Ajmeer 21; Ghure v. Chatrapal, 23 IC 11; Ramji Das v. Mihin Lal, AIR 1923 All 441; Bank of Baroda, Bombay v. Shree Moti Industries, Bombay, AIR 2008 Bom 201, 204-05 (para 25). 50 Ramkrishna Panda v. Arjuno Padhano, 1963 Ori 29. 51 AIR 1947 PC 15. 52 See also Dalu v. Juharmal, AIR 1952 Raj 91; Katihar Jute Mills v. Calcutta Match Works, AIR 1958 Pat 133. 53 Mehin Lal v. Ramji Das, (1924) 47 All 13. (This decision can be no longer be good law in view of the above Privy Council decision.) 54 J.S. Basappa v. Provincial Government of Madras, AIR 1959 AP 192. 55 Deorao Amrita v. Raibhan Sambhaji, AIR 1954 Nag 357. See also K.R. Rajalakshmi Devi v. K.R. Chandrasekhar, 1998 AIHC 1397 (paras 28, 29, 31, 32 and 36) (Kant). 56 Surendra Nath v. Kamakihya Narayan Singh, AIR 1930 PC 45. 57 Khemchand Premchand v. Dalhousi Jute Co. Ltd., (1968) 1 Cal 277. 58 Collector of Raigarh v. Chaturbhuj Panda, AIR 1964 MP 196; Kishna Lal v. Sohan Lal, AIR 1955 Raj 45. 59 Fuljari Lal v. Ram Sarup, AIR 1953 MB 177.

16. REGISTRATION COPY Where the plaintiff took steps to produce original will but it was not produced by the parties in whose possession it was, it was held that the registration copy of the will which she filed, was admissible in evidence as secondary evidence. 60 60 Sakunthala v. Vijayalakshmi, 2001 AIHC 273 (para 15) (Mad).

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17. UNPROBATED WILL Unprobated Will can be admitted in evidence for collateral purposes in any other proceedings apart from probate proceedings. 61 61 Commissioner, Jalandhar Division v. Mohan Krishan Abrol, (2004) 7 SCC 505, 513 (para 10) : AIR 2004 SC 2060, relying on Cherichi v. Ittianam, AIR 2001 Ker 184.

18. AGE CERTIFICATE The age certificate issued by the Head Master of a school on the basis of admission form was held to be not a primary but a secondary evidence. 62 62 Jeev Rakham v. State of M.P., 2004 CrLJ 2359, 2360 (para 10) (MP) : 2004 (3) Cur CrR 613 : 2004 (2) MP HT 158 : 2004 (3) Rec CrR 577.

19. VOTERS LIST A voters list is not a primary evidence of date of birth but a secondary evidence.

63

63 Mustafa v. Khurshida, AIR 2005 Raj 277, 278 (para 9).

20. NEWSPAPER REPORT A news item published in a news paper is at best a second-hand secondary evidence. A fact has to be alleged and proved and then newspaper reports can be taken in support of it but not independently. 64 While deciding election/re-polling, the Election Commission can rely on the newspaper report. 65 A public interest litigation (PIL) can be entertained on the basis of the news information if the Chief Justice or his designate finds that the information reveals gross violation of fundamental rights guaranteed under the Constitution, if there are reasons to believe the information to be true. 66 64 S.N. Balakrishna v. George Fernandes, AIR 1969 SC 1203. 65 All India Anna Dravida Munnetra Kazhagam v. State Election Commissioner, AIR 2007 (NOC) 1801(Mad) (FB). 66 S.P. Anand v. Registrar General, M.P. High Court, Jabalpur, AIR 2009 MP 1, 8 (para 14).

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Ratanlal & Dhirajlal: Law of Evidence, Updated 23rd Edition/THE INDIAN EVIDENCE ACT (ACT 1 OF 1872)/PART II ON PROOF/CHAPTER V OF DOCUMENTARY EVIDENCE/S. 64.

CHAPTER V OF DOCUMENTARY EVIDENCE S. 64. Proof of documents by primary evidence. Documents must be proved by primary evidence except in the cases hereinafter mentioned. 1. GENERAL PRINCIPLES

This section is based on the best evidence rule, subject to certain exceptions contained in some of the sections of the Evidence Act following this section. Documents must be proved by primary evidence except in the cases provided by the succeeding sections. This section has to be read along with Sections 61, 62 and 65 to 67. S TEPHEN in his Introduction (at page 144) has observed: "Primary evidence is required as a rule, but this is subject to seven important exceptions in which secondary evidence may be given." 67 The provisions of Sections 60, 64 & 91 of the Evidence Act are based on the cardinal rule that the best available evidence should be brought before the court. 68 A written document can only be proved by the instrument itself. It is a general rule, that if a person wants to get at the contents of a written document the proper way is to produce it, if he can. "Where the contents of any document are in question, either as a fact directly in issue, or a subalternate principal fact, the document is the proper evidence of its own contents. But where a written instrument or document of any description is not a fact in issue, and is merely used as evidence to prove some fact, independent proof aliunde is receivable. Thus, although a receipt has been given for the payment of money, proof of the fact of payment may be made, by any person who witnessed it.... So, although where the contents of a marriage register are in issue, verbal or other evidence of those contents is not receivable, the fact of the marriage may be proved by the independent evidence of a person who was present at it 69 ". In P HIPSON 70 it is stated : "The present rule (corresponding to Section 64) applies only to proof of the contents of documents and not to cases involving their existence or identity, e.g., proceedings for conversion, detention, negligent, loss or theft, for here there is no distinction between a document and other articles, and the plaintiff is not bound to put it in, even though the defendant may be willing to produce it." 71 This section only refers to the method of proof of the terms of a contract, grant or disposition of property. It does not exclude secondary evidence altogether, in proof of the transaction itself. 72 The Privy Council in Easwara Moorthy v. Emperor observed: " Sections 62, 64 and 65 of the Evidence Act define the only evidence which the law permits in order to prove a warrant of arrest, and that is, under Section 62 of the Act, production of the original order, or, under the conditions specified in Section 65, of a certified copy. A warrant of arrest is a public document which affects the personal liberty of the subject. The statute as quoted above, prescribes its form. It has to bear the appropriate signature and seal. Any laxity of proof might have serious consequences. It might, for instances, lead to error as to the identity of the person to be apprehended. Secondary evidence, other than a certified copy, would not necessarily, or even obviously, show that the statutory form had been complied with. 73

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The Supreme Court, in Purushothama Reddiyar v. Perumal 74 , held that the documents may either be proved by witnesses or marked on admission, that, when it was marked on admission without any reservation, the contents also are to be taken as admitted; in evidence though the document may not be conclusive evidence. The result is that the contents cannot be challenged by way of crossexamination or otherwise. It is not open to a party to object to the admissibility of the documents as they were marked as exhibits without any objection from such party. 75 When a document is relied on by a party, definite proof of its genuineness has to be given.

76

Whenever a transaction evidenced by a sale deed is required to be brought on record, the execution thereof has to be proved, the original sale deed is required to be brought on record by way of primary evidence. 77 The contents of a sale deed can only be proved by the executant. If he is not examined, it would be inadmissible, though proof of his signature is offered. 78 Where neither the sale-deeds nor the certified copies thereof were exhibited in the Court, mere oral evidence of those transactions were inadmissible. 79 Where the prosecution failed to produce the original agreement to sell and only a xerox copy thereof was produced by a prosecution witness who claimed to obtain the same from the Collectorate but it could not be established at whose instance the said xerox copy was filed with the Collector, it was held that the contents of the xerox copy, having not been proved, were wholly inadmissible in evidence. 80 Where the correctness of the contents of a document is in issue, they should be proved by calling the executant of the document or its writer. The contents of the document cannot be proved by a witness, though he is acquainted with the signature or the handwriting of the person who signed and wrote the document, but has no personal knowledge about the contents. 81 Merely because certain personal letters were tendered in evidence and exhibited, there is no reason why their authorship should be taken as what it purports to be, when persons conversant with such handwriting and signatures have not been produced at the trial. 82 In a case where the accused was suspected of complicity in kidnapping a minor girl, a letter written by him to his wife was intercepted. At the trial, the letter was read as evidence without proof. It was held that however valuable the letter is for the purpose of investigation, or for tracing the girl or the accused, as there was no proof of it, it cannot be read in evidence. 83 In the absence of proof regarding the entry in the mutation register, the copy from an entry in the document writers register was held inadmissible. 84 Where a party relies upon an entry in an account book, the original account book must be produced before the court as primary evidence in proof of the entry. 85 Where there was no evidence about payment of money except books of account and books of account were not produced in the Court, the extracts there of were held to be inadmissible in evidence. 86 When a prosecution is based on an order promulgated by the Government under the Madras Maintenance of Public Order Act 1 of 1947, it was held that proof of an order appearing in a newspaper was not sufficient and the original order or its certified copy must be filed. 87 Where a party claimed a particular property was joint family property, on the ground that it was purchased from the sale proceeds of a land belonging to the joint family, and he did not produce the sale deed of the land, or the extracts from the land records showing the existence of the joint family property, but offered oral evidence, it was held that the oral evidence cannot be accepted. 88 Entries in the pahanies filed by the defendant showing him as cultivator of the land in dispute, would constitute evidence for proof of the factum of his possession in the absence of evidence led to nullify the same. 89 A will cannot be rejected on the ground that the particulars of the preparation of the draft or whatever happened prior to the final will being prepared were not forth-coming. 90 A document can always be created falsely by obtaining signatures of few persons but the said document when produced in evidence must be able to stand the test of genuineness. 91 Where a document was executed by more than one person, it was held that, when it was proved, mere refusal of execution by some of the executants does not imply necessarily that the document is not genuine. 92 Oral admissions as to the contents of a document are not relevant, unless and until the party proposing to prove them shows that he is entitled to give secondary evidence of the contents of such document, or unless the genuineness of a document produced is in question. 93 The tape-record of a wife was lodged as proof of her mental disorder. She was sitting in the court as a respondent. No effect was made to compare her voice with the tape. The tape was not allowed to be

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used as evidence or for shaking her credit in cross-examination. 94 Where the xerox copies of the documents pertaining to previous proceedings before the SDO were produced in the suit in which the SDO and the Govt. were parties but they did not take any objection regarding their authenticity, the documents would be admissible. 1 The rule that where primary evidence is attainable, the secondary evidence stands excluded, is not so rigid and one case of such flexibility is where no objection is made by the party against whom the secondary evidence is proved as such secondary evidence becomes primary evidence. 2 Where the parties have admitted the contents of the document, either in their pleadings or during the course of the proceedings, the opposite party can rest on admissions alone and he need not produce and prove the original document. 3 In a later case 4 , it was held that such admissions of the party must be sufficient to cover the entire claim of the opposite party, to obviate the necessity of relying on the document or any portion of it. When a document is marked by consent, it means that the party consenting is willing to waive his right to have the document in question proved. Formal proof is not required when the document is marked by consent. 5 Where the secondary evidence is produced and admitted in evidence, in absence of any proper objection, it was held that the adverse party had waived the proof of circumstances justifying the giving of secondary evidence. Further, it was held that such objection could not be raised later on. 6 But consent does not have the effect of dispensing with the proof of the truth or otherwise of the contents. 7 Where the report of the Central Forensic Science Laboratory expert was admitted in evidence without objection regarding its mode of proof, the same could not be objected to at any later stage of the case or in appeal. 8 Where certain certificates were given by the plaintiff to the defendant, and the statements therein were not challenged by the defendant as incorrect, the maker of the statements need not testify to their correctness. 9 But where primary evidence was available, certified copy was held to be inadmissible. 10 Will cannot be rejected for non-production of its draft or on the ground that the particulars of preparation of draft or whatever happened prior to final will being prepared were not forthcoming.

11

In a prosecution for defamation, based on a letter written by the accused, it was held that merely because of the admission of the letter by the accused under Section 342,Cr.P.C. (nowS. 313) examination, the prosecution was not relieved of its duty to prove the letter by primary evidence. 12 Where the maker of the horoscope could not be examined because of being dead; the paper on which it was written did not inspire confidence because it did not appear old and the witnesses examined were found to be untrustworthy, it was held that the horoscope could not be relied upon as a proof of date of birth. 13 In Shakila Abdul Gafar Khan v. Vasant Raghunath Dhoble, 14 the Supreme Court held that where the original post-mortem report was not available, the register containing the original entries regarding the post-mortem could be taken note of. However the post-mortem report which was brought on record through a formal witness without examining the doctor conducting the autopsy of the body of the deceased, was held to be inadmissible in evidence. 15 A partition deed, which was neither properly stamped nor registered, was held to be inadmissible in evidence for the purpose of proving the partition. 16 Section 87(3), Cr.P.C. does not rule out the requirements of Section 64 of the Evidence Act . 17 67 They are referred to in clause s (a) to (g) of Section 65. 68 In re : Vadlamudi Kutumba Rao, AIR 1957 AP 595. 69 B EST , 12th Edn., S. 223, p. 209; Balbhadhar Prasad v. The Maharaja of Bettia, (1887) 9 All 351, 356. 70 15th Edn. (2000) (para 41-04), page 1104. 71 Bucher v. Jarrett, 3 B. & P. 143. 72 Makhduman (Mst.) v. Saiyed Altaf Hussain, AIR 1922 Pat 222; Kamal Kant Azad v. Emperor, AIR 1944 Pat 354. 73 Easwaramuthi v. Emperor, 71 IA 83 at 91 : AIR 1944 PC 54. 74 AIR 1972 SC 608.

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75 Bhagat Ram v. Khetu Ram, AIR 1929 PC 110; followed see also Harnath Malhotra v. Dhanoo Devi Agarwala, AIR 1975 Cal 98; Land Acquisition Officer DIS Cuttack v. Madan Gajendra, (1975) 41 Cut LT 869; Maharao Shri Madan Singh v. State of Gujarat, AIR 1969 Guj 270; is no longer good law in view of P.C. Purushothama v. S. Perumal, AIR 1972 SC 608; State of Kerala v. Mariamma Abraham, AIR 1969 Ker 265. 76 Kamal Narayan v. Ram Kishorelal, AIR 1958 MP 246. 77 Cement Corporation of India Ltd. v. Purya, (2004) 8 SCC 270, 279 (para 22). See also Church of South India Trust Assn. v Land Acquisition Officer & Tehsildar, (2006) 9 SCC 676, 677-78 (para 6). 78 Prakash Cotton Mills Pvt. Ltd. v. Municipal Commissioner, AIR 1982 Bom 387. 79 Chintaman v. State of Maharashtra, AIR 1997 SC 448. 80 Subhash Harnarayanji Laddha v. State of Maharashtra, (2006) 12 SCC 545, 550 (para 18). 81 Madholal Sindhu v. Asian Assurance Co. Ltd., AIR 1954 Bom 305; Bhageerathi Amma v. Govinda Kurup, 1962 Ker LT 858; Yusuf (Md.) v. D, AIR 1968 Bom 112; Sita Ramachandra Mahaprabhu v. Madano Maharana, AIR 1968 Ori 217. 82 Hazara Singh v. Attar Kaur, AIR 1976 Punj 24. 83 Kan Kanwari (Mst.) v. State of Rajasthan, 1957 CrLJ 688. 84 Gurnam Singh v. Ass Kaur (Smt.), AIR 1977 Punj 103. Original not produced, Bhartiya Gramin Punarrachana Sanstha v. Vijay Kumar, (2002) 6 SCC 707 (para 5) : AIR 2002 SC 3092; See also Shivanandam Vivekanand Babu v. State of Maharashtra, (2005) 10 SCC 587, 590 (para 8). 85 Parasnath Hiralal v. Kishanlal Chunilal, AIR 1965 All 189. 86 Trimbak Narayan Hardas v. Babulal Motaji, AIR 1973 SC 1363, 1369 : (1973) 2 SCC 154. 87 In re : Kottapalli Ragahaviah, AIR 1953 Mad 780. 88 Krishnakumar Sinha v. Kayastha Pathshala, Allahabad AIR 1966 All 570. 89 Mohd. Kareemuddin Khan v. Syed Azam, 1997 AIHC 2561 (para 11) (AP). 90 Janardan Badrinarayan Patel v. Ambalal Himatlal, AIR 1999 Guj 162 (para 13.4). 91 Hardip Singh v. State of Punjab, (2008) 8 SCC 557, 561-62 (para 14). 92 Rangaraju v. Sulochana Ammal, AIR 1971 Mad 280. 93 Where there is documentary evidence, oral evidence is not entitled to any weight : Murarka Properties Pvt. Ltd. v. Beharilal Murarka, AIR 1978 SC 300. 94 Jogindra Kaur v. Surjit Singh, AIR 1985 P&H 128. 1 Vithu Hira Mahar v. State of Maharashtra, 1999 AIHC 4295 (para 63) (Bom). 2 Alacs Finz Ltd. v. Oksh Technologies, AIR 2005 Del 376, 377 (para 8). 3 Zafar (Md.) v. Zahur Husain, AIR 1926 All 741; Hikmatullah Khan v. Abdul Azim Khan, 1921 All 218; Chuni Kuar v. Udairam, ILR 6 All 73; Sharda Talkies (Firm) v. Madhulata Vyas, AIR 1996 MP 68 (para 20). 4 Pearay Lal v. Kunwar Rani Hiradevi, AIR 1941 All 150. 5 Perumal v. Vadivelu Asari, AIR 1986 Mad 341. 6 Alacs Finaz Ltd. v. Oksh Technologies, AIR 2005 Del 376, 377 (para 8). 7 Karupanna Thevar v. Rajagopala Thevar, (1974) 2 MLJ 260. 8 Amarjit Singh v. State (Delhi Administration), 1995 CrLJ 1623(Del), following Phool Kumar v. Delhi Administration, AIR 1975 SC 905 : 1975 CrLJ 778. See also Vijay Kumar v. State, 1995 CrLJ 2599 (para 9) (Del). 9 Bengal Corp. Pvt. Ltd. v. Commissioner for the Port of Calcutta, AIR 1971 Cal 357.

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10 Butu Naik v. Saraswati Devi, AIR 1998 Ori 119 (para 5). 11 Janardan Badrinarayan Patel v. Ambalal Himatlal, AIR 1999 Guj 162 (para 13.4). 12 Panna Lal v. State of U.P., AIR 1969 All 423. 13 Sushil Kumar v. Rakesh Kumar, AIR 2004 SC 230 (para 60) : (2003) 8 SCC 673. 14 (2003) 7 SCC 749 (paras 12 and 29) : AIR 2003 SC 4567 : 2003 CrLJ 4548. 15 Pratap Tigga v. State of Bihar, 2004 CrLJ NOC 86(Jhar) : 2004 AIR Jhar HCR 563. 16 Dulichand v. Bhandari Das, AIR 2004 Raj 70 (para 10) : 2004 (1) Raj LW 498 : 2004 (1) Raj LR 825 : 2004 (2) Bank Cas 538 : 2004 Bank J 509 : 2004 (1) WLC 771. 17 P.K. Gupta v. State of W.B., 1973 CrLJ 1368(Cal) .

2. OBJECTION TO PROOF Regarding proof of a document, the objection has to be raised at the time when the document was tendered in evidence. It cannot be allowed to be raised at any subsequent stage or appellate stage. 18 In a case where a document was admitted and acted upon by two courts, a plea as to the insufficiency of proof could not be allowed to be taken in second appeal. 19 Mere marking of an unregistered document in evidence would not take away the right of the opposite party to contend that such a document could not be relied upon as it was not a registered as compulsorily required under the Registration Act . The Court may look into such document for collateral purposes only. 20 Objection to the mode of proof of the document must be taken at the trial, before it is sought to be tendered or marked and admitted in evidence. 21 A deed of adoption was produced before the trial court, without any objection by the opposite party as to its mode of proof. Objections cannot be raised in appeal. 22 18 Annapurna Sahuani v. Narendra Prasad Sahu, AIR 1967 Ori 129; Mira Bai v. Jai Singh, AIR 1971 Raj 303; Gopal Das v. Sri Thakurji, AIR 1943 PC 83; Maharaja Shree Mills v. Union of India, AIR 1960 Raj 92; Alacs Finanz Ltd. v. Oksh Technologies, AIR 2005 Del 376, 377 (para 8). 19 Ram Dass v. Board of Revenue U.P., AIR 1967 All 481. See also Ramesh Ramrao Hate v. Parvez B. Bhesania, 1997 AIHC 2521 (para 9) (Bom). 20 K. Anjaneya Setty v. K.H. Rangiah, AIR 2002 Kant 387, 396 (para 30). 21 Mira Bai v. Jai Singh, AIR 1971 Raj 303; Chandanbai (Mst.) v. Jagjaiwanlal, AIR 1958 Raj 110; Employers in relation to Central Bank of India v. General Secretary, Bihar Provincial Bank of India etc., (1967) 46 Pat 1086; Basanta Kumar Das v. Binayak Das & Ors., (1974) 40 Cut LT 1214. 22 Amar Singh v. Tej Ram, AIR 1982 P&H 282.

3. Sections 64 & 91 There is a difference between Section 64 and Section 91. Section 64 deals with the mode of proof of the document itself, and the contents of the document which may be proved by tendering the document itself as primary evidence or by secondary evidence contained in Section 65. Section 91 refers to cases where the terms of a contract or of a grant or any other disposition of property have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no parol evidence shall be given in proof of the terms of such contract, or disposition of property or grant, except by tendering the document itself.

4. DOCUMENT

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For the meaning of document see definition of 'document', under Section 3 and the commentary under that head.

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Ratanlal & Dhirajlal: Law of Evidence, Updated 23rd Edition/THE INDIAN EVIDENCE ACT (ACT 1 OF 1872)/PART II ON PROOF/CHAPTER V OF DOCUMENTARY EVIDENCE/S. 65.

CHAPTER V OF DOCUMENTARY EVIDENCE S. 65. Cases in which Secondary evidence relating to documents may be given. Secondary evidence may be given of the existence, condition or contents of a document in the following cases:-1a )   power--

when the original is shown or appears to be in the possession or

of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court,or of any person legally bound to produce it, and when, after the notice mentioned in Section 66, such person does not produce it; 1b )   when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest; 1c )   when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time; 1d )   when the original is of such a nature as not to be easily movable; 1e )   when the original is a public document within the meaning of Section 74; 1f )   when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in India, to be given in evidence; 1g On a harmonious interpretation of the releva )   when the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court and the fact to be proved is the general result of the whole collection. In cases (a ), (c ) and (d ), any secondary evidence of the contents of the document is admissible. In case (b ), the written admission is admissible. In case (e ) or (f ), a certified copy of the document, but no other kind of secondary evidence, is admissible. In case (g ), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents. 1. PRINCIPLE AND SCOPE

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This section enumerates the seven exceptional cases in which secondary evidence is admissible. Under it, secondary evidence may be given of the contents of a document in civil as well as in criminal proceedings. H ALSBURY (4th Edn., Vol. 17, para 9 and page 10 observes: "In the unavoidable absence of the best or primary evidence of documents, the court will accept secondary evidence. This is evidence which suggests, on the face of it, that other and better evidence exists. A party tendering it ought, therefore, to show that he is unable to obtain the best evidence. Public and judicial documents are usually proved by copies, without accounting for the absence of the originals. There are no degrees of secondary evidence, and once it has been shown that, for example, a private document cannot be produced for reasons which admit the giving of secondary evidence, the contents may be proved by any type of secondary evidence, for example, by the production of a copy which can be proved to have been correctly made from the original, a counterpart, or a draft, by sworn oral testimony as to the contents of the document, or as authorised by statute. Statements of a deceased person as to the contents of documents may also be admissible". Where the applicant sought to produce a document after eight years of the institution of the suit and that too was a photocopy and not the original, the same could not be admitted in evidence. 23 Where an original document was required to be registered compulsorily under Registration Act (16 of 1908), it was held that the photostat copy of the same could not be permitted to be proved by allowing to adduce as a secondary evidence.24 Where the original document filed by the party to prove his title was insufficiently stamped and unregistered and was therefore, inadmissible in evidence, no secondary evidence (here its photocopy) could be allowed to be led to prove the title. 25 However, where the appellant Kendriya Vidyalaya Sangathan could not produce the original option of the teacher regarding the Provident Fund Scheme but was able to produce sufficient material to show that she (teacher) had opted for a certain Scheme, the Apex Court held mere failure to produce the original option should not be a ground to ignore the ample materials produced to show exercise of option. 26 Where both the lessor and the lessee denied possession of the lease agreement, the Apex Court held that the High Court rightly held that the photocopies of the original agreement could be taken on record. 27 Secondary evidence cannot be looked into until and unless leave to tender secondary evidence was granted. 28 The application seeking permission to produce secondary evidence must give full details necessary to attract the provisions and be supported by a proper affidavit. 29 In absence of original post-mortem report, the register containing original entries regarding the postmortem can be taken note of; 30 but where plaintiff sought to produce a copy of document by way of secondary evidence which was neither a photocopy nor a true copy of the original and the same was also not compared with the original; granting permission to produce such a document as a secondary evidence was held to be not proper. 31 The Book-I, a book regularly maintained in the office of Sub-Registrar to record the documents which do not contain the signatures or thumb marks of the parties as they are usually taken on the original of the documents, hence the contents of Book-I are no better than a certified copy issued by the SubRegistrar by copying the record from Book-I and both are secondary evidence. 32 The Photostat copy of a document does not satisfy the requirement of Section 65 of the Evidence Act . 33

A document in terms of Section 65 of the Evidence Act is to be proved by a person who is acquainted with the handwriting of the author thereof. 34 Unstamped and unregistered document, even if not admissible in evidence, can be looked into for collateral purpose. Therefore, the plaintiff cannot be allowed to lead secondary evidence in respect of such document. 35 Where the secondary evidence was refused to be admitted on the ground that on an earlier occasion the courts had refused to admit the same as primary evidence, it was held that merits, demerits and genuineness of a document can be gone into at appropriate stage and the petitioner was allowed to the document in question as secondary evidence. 36

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23 Arati Bhargava v. Kavi Kumar Bhargava, AIR 1999 Del 280 (paras 6-8). 24 Hari Singh v. Shish Ram, AIR 2003 P&H 150, 153 (para 10), following Jupudi Kesava Rao v. Pulavarthi Venkata Subbarao, AIR 1971 SC 1070 : (1971) 1 SCC 545; Shri Balwant Singh v. Shri Maher Singh, AIR 1974 P&H 130 and Gangadhar Das v. Gangadhar Das, AIR 1986 Ori 173. See also Hariom Agrawal v. Prakash Chand Malviya, (2007) 8 SCC 514, 518 (para 8). 25 Shankar Lal v. The Civil Judge (Jr. Division), Shahpura, AIR 2006 Raj 187, 194 (para 24). 26 KVS v. Jaspal Kaur, (2007) 6 SCC 13, 15-16 (para 7). See also Ramchandra Sakharam Mahajan v. Damodar Trimbak Tanksale, (2007) 6 SCC 737, 743,-44 (paras 15, 16 and 18). 27 Bharat Sewa Sansthan v. U.P. Electronics Corpn. Ltd., (2007) 7 SCC 737, 747 (para 24). 28 Ganpat Pandurang Ghongade v. Nivrutti Pandurang Ghongade, AIR 2008 (NOC) 2571(Bom) : 2008 (4) AIR Bom R. 132. See also Bank of Baroda, Bombay v. Shree Moti Industries, Bombay, AIR 2008 Bom 201, 205 (para 27). 29 State of Rajasthan v. Khemraj, AIR 2000 SC 1759 (paras 2 and 3). 30 Shakila Abdul Gafar Khan v. Vasant Raghunath Dhoble, (2003) 7 SCC 749 (paras 12 and 29) : AIR 2004 SC 4567 : 2003 CrLJ 4548. 31 Sunil Kumar v. Anguri, 2002 AIHC 3869, 3872 (paras 16 to 19) (MP). 32 Budavant Subraya Palekar v. Babu Vajra Chandravarkar, AIR 2004 Kant 105, 107 (para 7) : 2004 AIR Kant HCR 96 : 2004 (24) All Ind Cas 353 : 2004 (4) ICC 494. 33 Shankar Lal v. The Civil Judge (Jr. Division), Shahpura, AIR 2006 Raj 187, 195 (para 30). 34 Rameshwar Dass v. State of Punjab, (2007) 14 SCC 696, 701 (para 18). 35 Baiz Nath v. Govind Singh, AIR 2009 (NOC) 761(Raj) . 36 M. Aruna Mohan Ram v. Trilok Kumar Sanghi, AIR 2009 (NOC) 1574(AP) .

2. NON-PRODUCTION OF DOCUMENT TO BE ACCOUNTED FOR H ALSBURY (4th Edn., Vol. 17, para 138, page 102) observes: "Secondary evidence of the contents of private document is inadmissible, if primary evidence is available. Before secondary evidence is tendered, it is therefore usually necessary to account for the absence of the original document; and for this purpose proof that primary evidence is not available may be required". B EST ON E VIDENCE (8th Edn. p. 416) states: "It is a general and well-known rule that no secondary evidence of a document can be received until an excuse such as the law deems sufficient, is given for non-production of the primary evidence". The section also says that in cases falling under Clause s (a ), (c ) & (d ), any secondary evidence of the contents of the document is admissible. 37 In the case of clause (b ), the written admission is admissible. In the case of Clause (e ) & (f ), certified copies of the document, and no other kind of secondary evidence, is admissible. That means parol evidence cannot be adduced as secondary evidence in cases falling under clause (e ) or (f ). So far as Clause (g ) is concerned, secondary evidence may be given by any person who has examined them or who is skilled in the examination of such documents. For a party seeking recourse to Ss. 65 & 66 of the Evidence Act, it is necessary to establish that the document sought to be summoned was executed and that it was not with him, but it was in possession of the person against whom the application was made to be produced for proving against him. 38 The photocopy of the owner book produced without complying with the provisions of Sections 65 and 66 of the Evidence Act would not be a legal evidence. 39 Before secondary evidence is adduced, a proper foundation is to be laid for not producing the primary evidence. Only after the non-production of the primary evidence is satisfactorily accounted for, the secondary evidence would be permitted to be adduced. If the court is satisfied that a case is made out

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for production of secondary evidence, it can permit the party to adduce secondary evidence subject to Sections 63 and 65 of the Evidence Act . But, on the ground that the party who proposes to adduce secondary evidence has not disclosed from where, which authority he got the documents and whether the documents came from a proper custody, the document cannot be refused to be received in evidence. 40 Secondary evidence of the contents of a document cannot be admitted without the nonproduction of the original being first accounted for in such manner as to bring the case within one or other of the cases provided for in the section. 41 Where no explanation has been given by the plaintiff for the whereabouts of the original sale deed and regarding requirement of adducing a secondary evidence, the certified copy of the sale deed could not be considered as the source of title in favour of the plaintiff. 42 The Privy Council, in Babu Anand Biharilal v. Dinshaw and Co. 43 , held that unless the conditions laid down in any one of the clause s of this section are satisfied, no secondary evidence in lieu of primary evidence can be received. 44 Where it was not disputed that after execution of original sale agreement, it was lying with the defendant and he failed to produce the same even after service of notice by the plaintiff and the defendant failed to prove his stand that the original document was lost and he had lodged a complaint with the police, the photostat copy of the said document was held to be permissible in evidence. 45 The question of proof, by secondary evidence, as to the use of a document is not one of fact but of procedure. 46 It is incumbent on the person who tenders secondary evidence to show that it is admissible; the question of admissibility is ordinarily for the court of first instance. 47 The Privy Council, in Rani Haripria Debi (Smt. ) v. Rukmini Debi, 48 held that the question whether or not a party to a suit had laid sufficient foundation to entitle him to tender secondary evidence in the place of primary evidence, is a matter of fact, to be judicially determined by the court of first instance which tries the case; its conclusion should not be overruled except in a clear, case of miscarriage. 49 Before invoking the provisions of this section for adducing secondary evidence foundation must be first laid for its reception by fulfilling the conditions laid in the clause s of this section. 50 The Apex Court held that by refusing to look into the document of title relied upon by the plaintiff on the ground that no foundation had been laid for adducing secondary evidence by production of a certified copy of the lease deed, the trial court and appellate court had adopted a course that had resulted in injustice to the parties. The trial court ought to have called for evidence regarding availability of the original and given the plaintiff an opportunity to lay the foundation for accepting in evidence a certified copy of that document. 51 Where there is no 'document' signed by the parties, much less a registered document, as evidence of partition, there is no question of the plaintiff adducing secondary evidence of the contents of it, within the meaning of Section 65. In such circumstances, there is no bar to the admission of oral evidence to prove the alleged partition. 52 Where the original documents were not produced, and no foundation was laid for establishing the right to give secondary evidence, the question of admitting secondary evidence would not arise. 53 Where a photostat copy of the minutes of Panchayat filed by the wife which was alleged to be signed by the father of the husband and brother of the wife and also signed by the witnesses and there was also evidence that original of it was given to the father of the husband, it was held that the photostat copy of that document was not admissible in evidence as secondary evidence without giving notice under Section 66 of the Evidence Act to the person in whose custody the document was. 54 Where execution of an unstamped and unregistered agreement of exchange was not disputed by the plaintiff and plaintiff failed to produce the same despite notice, the defendant's prayer for leading secondary evidence could not be disallowed and the admissibility of the document in evidence could not be considered by the Court before production of document in evidence on record. 55 Merely because the person in whose possession the original document was, was himself a party to the suit, was held to be not a ground for not giving a notice to produce the document under Section 66 of this Act . 56 Where the fact that the original adoption deed was with the plaintiff was not proved, it was held that secondary evidence was not admissible. 57 Where the production of certain documents was not granted under O. XI, R. 14 by the trial Court, rejection of the application to produce secondary evidence in respect of those documents is no material irregularity and illegality. 58

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An order allowing secondary evidence of the contents of the document without compliance with the provisions of Section 65 is illegal. 59 Section 65 cannot be invoked where a party, being in possession of the document, does not produce it. Where the document not having been produced by a party at all during the relevant periods, he cannot be permitted to produce it from his own possession at the stage of arguments in the High Court. The reason for this is that, if he had produced it in the trial court, the opposite party would have had the opportunity to put forward his contention 60 but where the photocopies, sought to be exhibited, were compared with the originals prior to framing of charge and the plaintiffs in possession were ready to produce them during recording of statements, the order allowing their exhibition without their originals was not improper. 61 Where a typed copy of the report of the surveyor assessing the damages was filed, it was held that without production of the primary evidence no reliance could be placed on the typed copy, moreso in the absence of the evidence of the assessor. 62 In a civil suit, the rejection by the trial Court of an application of the defendant for seeking permission to produce photostat copy of application submitted to the Electricity Board, without holding any enquiry as to the existence of its original, merely on the ground that same was not available in records of the Board, was held to be not proper. The document could be admitted in evidence subject to final decision of the existence of the original document and correctness of the alleged photostate copy. 63 The doctrine of privilege is based upon public interest which is not to suffer for individual gain. If litigants obtained copies of privileged documents surreptitiously, such documents shall not be looked into as secondary evidence of the document. 64 Under Section 65, secondary evidence is to be given only to prove the existence, condition or contents of a document, and nothing more beyond that. 65 Where no evidence has been led to show either the existence of the document or any opportunity to lead any evidence has been afforded to the parties, the application to lead a secondary evidence can be decided by Court only after allowing opportunity to both the parties, but not in a summary manner. 66 of the of 1949, as amended, is not a provision in derogation of the provisions of Section 65 of the Evidence Act, but it is in addition thereto. 67 Section 87(3) of Criminal Procedure Code does not rule out the requirements of Section 65 of the Evidence Act . 68 Assuming that the commercial tax officer acts, as a court as defined by the Evidence Act, while taking evidence, which he is authorised to take, he can admit secondary evidence of the contents of a document which is lost or destroyed. 69 This section proceeds on the basis that primary evidence is itself admissible.

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Mere production of a certified copy of the sale deed is not sufficient to draw a presumption under Section 90. It must be shown that the certified copy of the document is admissible as secondary evidence as contemplated in Section 65 of the Evidence Act. 71 37 Sanathan Mohanty v. Baidhar, 1986 Ori 66. 38 K. Krishna Appa Naidu v. B. Sohanlal, AIR 2004 AP 439, 441 (para 11) : 2004 (4) Andh LD 525 : 2004 (2) Andh WR 125 : 2004 (21) Ind LD 239. 39 State of Bihar v. Lalu Prasad 2008 CrLJ 2433, 2451 (para 76) (Pat). 40 Gafarsab v. Ameer Ahmad, AIR 2006 Kant 95, 96 (paras 5 and 6). 41 Krishna Kishori Chowdhrani v. Kishori Lal Roy, (1887) 14 Cal 486 : 14 IA 71; Md. Zafar v. Zahur Hussain, (1926) 49 All 78; AIR 1926 All 741; Womesh Chandar Ghose v. Shama Sundari Bai, (1881) 7 Cal 98; Hana v. Lokumal, ILR 1943 Kar 420; John Mithalal Desai v. Dineshbhai K. Vora, 1998 AIHC 1894 (paras 12 and 13) (Guj); Paramjit Kaur v. Sat Kartar Singh, 1998 AIHC 3470 (para 3) (P&H); Sukhjinder Kaur v. Gurdip Kaur, 1998 AIHC 3957 (para 3) (P&H). 42 Latfar Rahman v. Abdul Jalil, AIR 2005 Gau 9, 11 (para 10). Distinguished, Md. Saimuddin Sheikh v. Abejuddin Sheikh, AIR 1979 Gau 14. Following, Mahindra Kumar Dev v. Mahendra Shukla Baidya, AIHC 1999, 2147. See also

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Shankar Lal v. The Civil Judge (Jr. Division) Shahpura, AIR 2006 Raj 187, 195 (para 29); Phokan Sonowal v. State of Assam, 2008 CrLJ 2155, 2158 (para 15) (Gau). 43 AIR 1946 PC 24. 44 See also In re : Raghauiah, AIR 1953 Mad 780. 45 Dwarika Prasad Bajpai v. Kedar Prasad Bajpai, AIR 2004 Cal 204 : 2004 (2) Cal HN 488 : 2004 (3) ICC 739. 46 Jagadish Chandra Deo v. Gour Hari Mahato, AIR 1936 PC 258. 47 Abdul Razack v. Ma U, (1898) 2 UBR (1897-1901) 382, secondary evidence was not allowed where the primary was on record; Kirpal Singh v. Kartaro, AIR 1980 Raj 213. 48 AIR 19 Cal 438, 442 (PC). 49 See also Sookram Sookul v. Ramlal Sookul, 9 WR 248; Ningama v. Ramappa, 5 Bom LR 708; Pandappa Mahalingappa v. Shiva Lingappa, AIR 1946 Bom 193; Chuhamal v. Hazi Rahim Bakhsh, AIR 1924 Lah 303. 50 Sitaldas v. Sant Ram, AIR 1954 SC 606. See also State of Karnataka v. M. Muniraju, AIR 2002 Kant 287, 310 (paras 57 & 58), relying on Lallan Prasad Chunnilal Yadav v. S. Ramamurthi, AIR 1993 SC 396; Sital Das v. Santram, AIR 1954 SC 606; Chandrakanta Ben v. Vadilal Bapalal Modi, AIR 1989 SC 930 : (1992) 3 SCC 498 : 1993 CrLJ 296; Govt. of A.P. v. K.C.V. Reddy, AIR 1994 SC 591 : 1995 Supp (1) SCC 462 and Sait Tarojee v. Yelamarti Satyan, AIR 1971 SC 1865 : (1972) 4 SCC 562; Katakam Vishwanathan v. Katakam China Srirama Murthy, AIR 2004 AP 522, 524 (para 9) : 2004 (3) Andh LT 791 : 2004 (3) Andh LD 338 : 2004 (4) Civ LJ 669 : 2004 (21) Andh LD 248. 51 Ramchandra Sakharam Mahajan v. Damodar Trimbak Tanksale, AIR 2007 SC 2577, 2581 (para 12), reversing F.A. No. 515 of 1997 dated 23.3.2005 (Bom). 52 Tahir (Md.) v. Sardar Bano (Mst.), AIR 1952 All 782. 53 Roman Catholic Mission v. State of Madras, AIR 1966 SC 1457. See also Kashinath v. Union of India, (1973) 2 All 362; Phoolchand v. L. Puranchand, (1962) 1 All 671; Basanti v. Pohlu, AIR 1952 Bilaspur 13; Kaloo Ram v. Gangadass, ILR 1963 13 Raj 1090; Alicia v. Percival Felix Pinto, (1972) 2 Mys LJ 210; Kunhammad v. Moosankutty, 1972 Ker 76; Dayamathi Bai v. K.M. Shaffi, (2004) 7 SCC 107, 110 (paras 12 and 14) : AIR 2004 SC 4085. 54 Hemant Kumar Agrhari v. Lakshmi Devi, 2004 AIHC 1845, 1846 (para 6) (All) : AIR 2004 All 126 : 2004 All LJ 972 : (2003) 52 All LR 166 : 2004 (2) Civil Court C 50 : 2004 (17) Ind LD 156 : 2004 (2) Marri LJ 73. 55 Swarn Singh v. Narinder Kaur, AIR 2002 P&H 40, 42. Relied on, Nawab Singh v. Inderjit Kaur, AIR 1999 SC 1668; Bihari Lal v. Ram Piani, (1999) 2 Punj LJ 213; Harshvardhan Singh v. Ranveer Singh, AIR 1997 Raj 211. 56 K. Krishna Appala Naidu v. B. Sohanlal, AIR 2004 AP 439, 441 (para 12) : 2004 (4) Andh LD 347 : 2004 (2) Andh WR 125 : 2004 (21) Ind LD 239. 57 Laxman Ganpati v. Anusuyabai, AIR 1976 Bom 264. 58 Dropadi v. Mahagraha Bhagwat Singh, AIR 1995 Raj 138 (para 4). 59 Laxmi Narain v. Parmanand, 1978 Raj LW 411. 60 Anantha Raghuram Arya v. Rajah B. Naga Chaya Devamma, AIR 1958 A.P. 418, 422. 61 Prem Kumari v. Sushil Kumari, AIR 2000 Raj 415 (para 5). 62 Lakshmi Chand Textiles v. Union of India, AIR 2005 Del 2, 5 (para 9). See also L. Bakthavatsalam v. R. Alagiriswamy, AIR 2008 (NOC) 733(Mad) . 63 Hindustan Engineering Co., Bhilmara v. Bhagwanlal Agarwal, AIR 2003 Raj 198 (para 5). 64 Jaffarul Hossain v. Emperor, AIR 1932 Cal 468; Bento Souza v. Francis, 1058 Cal; Dinbai Dinshaw v. Dominion of India, AIR 1951 Bom 72. 65 Gulab Chand v. Sheo Karan Lall Seth, AIR 1964 Pat 45. 66 P.K. Gupta v. Varinder Sharma, AIR 2002 P&H 342, relying on, Roman Catholic Mission v. State of Madras, AIR 1966 SC 1457 and following Indian Overseas Bank v. Shyama & Co., 1993 (1) Punj LR 630. 67 Calcutta National Bank Ltd. v. Sonapur Tea Co. Ltd., AIR 1957 Cal 9.

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68 P.K. Gupta v. State of W.B., 1973 Cr. LJ 1368(Cal) . 69 Kedarnath Jute Manufacturing Co. Ltd. v. Commercial Tax Officer, (1959) 10 STC 241. 70 K. Muhammed v. Nani, 1970 Ker. LJ 356. 71 Manjoor Ali v. Kismat Ali, AIR 2004 All 395, 398 (para 10) : 2004 All LJ 3643 : 2004 (2) All CJ 1237 : 2005 (1) Rec Civ R 765 : 2004 Rev Dec 596.

3. DOCUMENT--MEANS 'Document' means a document admissible in evidence. If a document is inadmissible in consequence of its not being registered, or not being properly stamped, secondary evidence cannot be given of its existence. 72 A party should not be allowed to prove a copy of an unstamped original deed and use it as secondary evidence either on due payment of penalty into the court or upon its endorsement by the Collector. 73 If the original document is inadmissible in evidence owing to its being unstamped or unregistered, secondary evidence is inadmissible. Secondary evidence cannot be given to establish a fact, proof whereof by primary evidence is forbidden. Under no circumstances can secondary evidence be admitted as a substitute for inadmissible primary evidence. Where a party comes into court resting his claim on a written title deed which the law requires to be registered, he cannot, when he has failed to register, and is, in consequence unable to use his title deed, turn round and say that he could prove his title by secondary evidence. Therefore, oral evidence of the terms of an unregistered deed of mortgage, required by law to be registered, is inadmissible. 74 When a plea was taken that an award was neither stamped nor registered, it was held that, as the award itself was inadmissible for want of stamp and registration, secondary evidence is not admissible; but as the defendant had not denied the terms of the award which were set out in detail in the plaint, it must be taken that they were under Order VIII, Rule 5, C.P.C., that in such case, award need not be produced in evidence and the question of the admissibility would not arise. 75 If a document which is required to be registered under the Registration Act , is not registered, secondary evidence cannot be given as to its existence.76 Where the plaintiff paid penalty and necessary stamp on a document which was impounded, and its execution was also proved, but it was lost while it was in the custody of the court, it was held that the opposite party cannot question it at any subsequent stage on the ground that it was not duly stamped. 77

An unstamped counterpart of a partnership deed is not inadmissible for want of proof of loss of the original deed which was on a stamp paper, because there is nothing to prevent a person to enter into partnership evidenced by a deed written on a plain sheet of paper. 78 Where in a suit for redemption, the defendant refused to produce the unregistered mortgage deed, it was held that the plaintiff could adduce secondary evidence thereof for purpose of proving the nature and character of the defendant's possession. 79 Secondary evidence was allowed where the defendant did not deny the registered deed.

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72 Raja of Bobbili v. Inuganti China Sitaramaswamy, ILR 23 Mad 39(P.C.) ; Hiralal v. Shankar, ILR 45 Bom 170; Jupidi Kesava Rao v. Pulavarthi Venkata Subbarao, AIR 1971 SC 1070; Chmpalal v. Panna Lal, (1951) 1 Raj 190; Hariom Agrawal v. Prakash Chand Malviya, (2007) 8 SCC 514, 518 (para 8). 73 Raja of Bobbili v. Inuganti China Sitaramaswamy, ILR 23 Mad 49(P.C.) . 74 Sawa v. Kuka, (1951) 1 Raj 69 : AIR 1951 Raj 66; Campalal v. Pannalal, (1951) 1 Raj 190; Phoolchand v. L. Puran Chand, (1962) 1 All 671; Moolchand v. Laxman, AIR 1958 Raj 72; P.V. Subba Raw v. T Kesava Raw, (1967) 2 An. W. R. 444; Lachmareddy v. Sham Raw, (1966) 2 An W. R. 251; Ladharam v. Harichand, AIR 1938 Lah 90; Swaminath v. Sundara, (1911) 2 M.W.N. 166; Harshvardhan Singh v. Ranveer Singh, AIR 1997 Raj 211. The Court referred to Kale v. Deputy Director of Consolidation, AIR 1976 SC 807; Obelisetty Ramanadhan v. Obelisetty Bhaskar Rao, AIR 2008 (NOC) 1154(AP) ; Jupudi Kasava Rao v. Pulavarthi Venkata Subbarao, AIR 1971 SC 1070; E. Venkat Reddy v. E. Yadgir Reddy, AIR 1973 AP 398.

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75 Pandya Shankerlal Sunderji v. Pandya Ramniklal, AIR 1951 Kutch 23. 76 Varada Ayyangar v. Krishnaswami Ayyangar, ILR 6 Mad 117; Sambayya v. Gangayya, ILR 1890 13 Mad 308; Janardhan v. J, AIR 1927 Nag 214; Pandya Shankerlal Sunderji v. Pandya Ramniklal, AIR 1951 Kutch 23; Sawa v. Kuka, AIR 1951 Raj 66; Yasin Baig v. Harnarayan Aggarwalla, ILR 1970 Cut 711. 77 Radha Kishan v. Laxminarian, 1957 Raj LW 603. 78 Hiralal v. Gian Singh, AIR 1951 Punj 441. 79 Rahim Bux v. Illahi Bux, AIR 1973 Raj 294; relying on Lachhmi Narain v. Kalyan, AIR 1960 Raj 1(S.B.) . 80 Ranjit Kumar v. Kamal Kumar, AIR 1982 Cal 493; see also Shiolal Sing v. Shankar, AIR 1984 Bom 19; (where execution could not be proved).

4. ORIGINAL SHOWN IN POSSESSION BUT NOT PRODUCED [CLAUSE (a)] This clause deals with three situations under which secondary evidence can be given. Firstly, when the original is shown or appears to be in the possession and power of the person against whom the document is sought to be proved. Secondly, when it is in the possession or power of any person who is out of reach, or not subject to the process of the court. Thirdly, when it is in the possession of any person legally bound to produce it, but he fails to produce it after the notice mentioned in Section 66 is given to him. In this clause, the expression "shown or appears to be in possession or power" is used. This presupposes the satisfaction of the court to that effect, before the party is allowed to adduce the secondary evidence. That can be done only by adducing some evidence, or by showing certain circumstances appearing from the record itself. The document need not be in the act ual possession of the party, it is enough if it is in his power. According to the first part of Cl. (a ), secondary evidence of the contents of a document may be given when the original is in the possession or power of the adversary. 81 The Supreme Court held where it was not shown that the successful candidate in an election was in possession of the original leaflet, that leading secondary evidence by a photostat copy was not permissible. 82 Secondary evidence of the contents of a document cannot be given by a party who has custody of the original. 83 Where a driver and a conductor were prosecuted for contravention of the conditions of registration certificate and the permit, and when they did not produce those documents in the court, it was held that the prosecution could produce secondary evidence. 84 Where the execution of the document was admitted, but the document was not produced by the person holding it, it was held that the contents of the document could, with the permission of the court, be proved by secondary evidence in view of the non-production of the document by the opposite party. 85 Where a notice under Section 80,C.P.C., was given to the Union of India, it was held the production of a copy of a notice by the plaintiff is permissible as secondary evidence, as the original would be with the Union of India.86 Where a document ought to have been in the possession of the plaintiff, and a notice was also given to him to produce it, but it was not produced, stating that it was not in the plaintiff's possession, it was held that a case was made out to lead secondary evidence by the defendant. 87 Where the best evidence was in the possession of the defendant which he did not produce, grant of permission to the plaintiff to lead secondary evidence could not be interfered with. 88 Where the tenant alleged that the original rent note was in the possession of the landlord, rejection of his application seeking to produce the copy of the rent note on the ground that the same was of doubtful veracity without affording him opportunity to adduce secondary evidence was unjustified. 89 As initially agreed, the original agreement, typed in duplicate, was kept with the vendor who did not produce the same in the Court. The typed copy was produced, signature upon which was admitted by the vendor's son to be that of his father and as such it was received in evidence. 90

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The Supreme Court, in Bibi Aisha v. Bihar Subai Sunni Majlis Avagaf 91 held that clause (a ) is not controlled by Cl. (f ),; when a case falls under cl. (a ), any secondary evidence (a plain copy of the document), and not necessarily a certified copy of the document, is admissible though the case may also fall under cl. (f ) of this section. In the said case, it was observed: "In cases (a ), (c ) and (d ) the words 'any secondary evidence is admissible' are too clear and too strong to be controlled by anything that follows". Where the plaintiff produced the photostat copy of the alleged assessment order but gave no notice to the witness, in whose possession the original was, to produce the same and there was no material to show that the said photostat copy was made from its original, the order permitting the plaintiff to produce the said copy was held to be not proper. 92 Where original deed of agreement to sell was kept by vendor/defendant and a copy of the said document bearing the signatures of the defendant/vendor and his members given to the vendee was lost and the some could not be traced out, the photostat copy of the document could be admitted as secondary evidence under this section. 93 Where the plaintiff had taken inconsistent and contradictory stands and the defendants had categorically denied to be in possession of the original documents and there was no finding by the trial Court that the defendants were in possession of the documents and they deliberately had not filed the original documents or they had refused to produce the same before the Court, hence there was no case to attract the provision of Section 65 made out by the plaintiff to produce the secondary evidence. 94 81 Maneklal v. Ginwala, AIR 1950 SC 1; Muthu Venkatarama Reddiar v. Vardaraja Kounder, AIR 1971 Mad 471; Chandranath v. Tusharika, AIR 1958 SC 521; British Transport Co. Ltd. v. Suraj Bhan, AIR 1963 All 313; Jagroop v. Rex, AIR 1952 All 276; Vishwanath Vithoba v. Genu Kisan, AIR 1956 Bom 555; Baboolal v. Nathmal, AIR 1956 Raj 126; Patel Manilal Chhaganlal v. Municipal Corp., AIR 1978 Guj 193; Gopal Das v. Thakurji, AIR 1936 All 422; Karthikeya v. Singaram, AIR 1956 Mad 693; Risal v. Dy. Director of Consolidation, 1970 All L.J. 1161; Bibo Devi (Smt.) v. Rattan Lal, (1972) 2 Delhi 699; K.K. Seshien v. S.R. Sundar, AIR 2008 (NOC) 2289(Mad) . 82 Ashok Dulichand v. Madhavlal Dube, AIR 1975 SC 1748. See also J. Yashoda v. K. Shobha Rani, (2007) 5 SCC 730, 733 (para 9). 83 Hiralal v. Ganesh Prasad, (1882) 4 All 406 P.C. 84 Jagroop v. R, AIR 1952 All 276. See also N. S. Prakash Rao, v. Bala Krishna, AIR 2008 (NOC) 475(AP) ; relying on 2001 (6) Andh LD 229. 85 Pravin S. Shah v. Govind K. Sharma, 1974 Raj LR 128(Del) . 86 Lokchand Prithi Singh v. Union of India, AIR 1959 Raj 231. 87 Dalbir Kaur v. Amar Kaur, (1979) 81 Punj LR 44. See also Gopal Krishna Jiwan Kumar v. Puran Singh, AIR 1998 P&H 144 (para 10); D. Sarasu v. Jayalakshmi, 2001 AIHC 2484 (para 11) (Mad). 88 Maithu Lal v. Kundan Lal, AIR 1998 P&H 144 (para 10). See also Virendra Nath v. Mohd. Jamil, AIR 2004 SC 3856 (para 9) : (2004) 6 SCC 140. 89 Nawab Singh v. Inderjit Kaur, AIR 1999 SC 1668 (para 3), reversing CR No. 600 of 1998, Dt. 16-9-1998 (P&H). 90 T. Mohan v. Kamammal, (2002) 10 SCC 82 (para 9). See also B. Poonima v. Thoomu Ramdasu, AIR 2006 (NOC) 1277(AP) : 2006 AIHC 1772; Mohit Batra v. Shalu, AIR 2007 (DOC) 74(P & H) : 2006 (4) RCR (Civil) 455. 91 AIR 1969 SC 253. 92 Rajasthan Golden Transport Co. v. LRs. of Amritlal, AIR 1998 Raj 153 (para 5). 93 L.S. Sadapopan v. K.S. Sabarinathan, AIR 2002 Mad 78, 283. 94 Sunil Kumar v. Anguri Chaudhary, 2002 AIHC 3869, 3872 (para 14) (MP).

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5. PERSON OUT OF REACH OR NOT SUBJECT TO PROCESS OF THE COURT Where a person who is in French territory and who is not subject to the process of courts in the Indian Union, is having possession of a document, an authenticated copy could be received under Section 65. 1 Where the original mortgage deed was filed in Pakistan courts before partition of India, the mortgagee migrated to India on partition and filed a suit to enforce the claim against the property in India, it was held that the mortgagee was entitled to produce secondary evidence of the mortgage deed, because the original was in custody of the person beyond the jurisdiction of the court. 2 Where an original document was filed in a court in a different State, it was held that the certified copy of the document was admissible. 3 1 Muni Ammal v. Govindarajan, AIR 1958 Mad 393. 2 Jai Singh v. Harnam Das, AIR 1964 All 381. 3 Biharilal Agarawalla v. Tamizul Haque, AIR 1988 Gau 1.

6. LEGALLY BOUND In this clause it is stated that when the document is in possession of any person legally bound to produce it, and when, after notice, he does not produce it, secondary evidence can be given. P HIPSON states (15th Edn. (2000), para 41-32, pages 1121-1122) : "When the stranger is compellable by law to produce, by witness summons , an original document in his possession, but fails to do, so, secondary evidence of its contents cannot be given, although the witness will be punishable for disobedience....Mere refusal to produce the document will not, therefore, let in secondary evidence thereof; the witness must be justified in his refusal, for otherwise the party has no remedy except as against him, and even a justified refusal will not let in secondary evidence of certain documents protected by public policy. The witness may be justified in such refusal where the document is, e.g., one on which he has a lien for money lent, or is a title deed, or an incriminating document, or one which he holds as trustee, solicitor, or mortgagee for another, and which that other would himself be justified in withholding". The wording of this clause has given rise to considerable doubt. Secondary evidence of a document is admissible when the original appears to be in the possession of any person legally bound to produce it. This clearly covers a document which is unjustifiably withheld by any person, thus differing from the English law on the point. But if a person summoned to produce a document objects to do so, and his objection is upheld by the Court, it seems equally clear that such a document does not fall within the ambit of this section. It may be, however, that the courts will admit secondary evidence in such a case upon the general principles of the English law and the decisions, of the English courts upon the subject. Where a witness was summoned by registered post to produce the original sale deed, the witness refused to receive the summons, it was held that the certified copy of the sale deed was admissible. This expression 'not subject to' seems intended to include the case of a person not legally bound to produce the document, who refuses to produce it. 5 Where the original of a document cannot be admitted in evidence on the ground of privilege under Section 124 of the Evidence Act, no secondary evidence of its contents can be given. 6 4 Chunilal Ojha v. Mulsankar Ojha, (1961) 1 Cut. 635. 5 Stokes Anglo-Indian codes, Vol. II, p. 892, f.n. 30. 6 Sivasankaram v. Narayana Rao, AIR 1937 Mad 807.

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7. NOTICE UNDER Section 66 This clause seems to mean: when any person in whose possession or power the original may be, after receiving the notice (if any) required by Section 66, does not produce such original. 7 The purpose of issuing notice to the person in possession of a document is to give the party an opportunity of producing the original and to secure the best evidence of its contents. 8 The sole object of a notice to produce is to enable the adversary to produce the document if he likes, and, if he does not, to enable his opponent to give secondary evidence thereof, so as to exclude the argument that the latter has not taken all reasonable means to procure the original which he must do before he can be permitted to make use of secondary evidence. 9 If a person who is legally bound to produce the document refuses to produce it, notwithstanding the notice to do so, the existence and contents of the original document can be proved under this clause by proof of the authenticated copy. 10 Before secondary evidence is allowed, notice to produce the document must be given to the person in possession of it. Where the correspondence of the government officials contained certain terms of the lease, and a notice was issued under Section 66, for production of the original document and they were not produced, it was held by the Supreme Court that secondary evidence could be adduced. 11 Where a thirty year old gift deed was called for by issue of notice and it was not produced, it was held that secondary evidence by production of certified copy was admissible. 12 Where a notice to produce the documents is given under Order XII, Rule 8, C.P.C., and there is non-compliance, striking off of the defence cannot be ordered under Rule 21 of Order XI, C.P.C., as secondary evidence of documents can be given in such a case. 13 Where notice is given, and the document is not produced by the party, secondary evidence under Section 65 is admissible. Further, in such circumstances, a presumption arises under Section 89 of the Evidence Act about the execution of the document in respect of which secondary evidence has been led; such presumption arises in respect of attestation, execution and stamping being done in the manner required by law. 14 Where the plaintiff produced the certified copy of a trust deed, stating that the defendant was in possession of the original, it was held that the defendant must have known that he would be required to produce it, that there was an implied notice under proviso to Section 66(2) to the defendant and hence the certified copy was sufficient proof of the deed. 15 This rule applies equally both in civil and criminal cases. Before notice is ordered to produce the document, it must be shown that the document is in the hands of the opposite party who is required to produce it. 16 Where no notice, as required by Section 66, is given, the secondary evidence is not admissible.

17

A certified copy of a registered document cannot be admitted on the ground of its being a public document under Section 74 of the Act without taking steps for the production of the original or laying the foundation for admitting secondary evidence. 18 Where the defendant denies having possession of a document there is no necessity to issue a notice for its production. 19 Where the defendant deposed that the original deed of the family settlement was not with the plaintiff but was with a third party who was dead, and the defendant produced a certified copy and proved it, it was held that no notice to the plaintiff was required to admit the certified copy as secondary evidence. 20

7 Strokes' Anglo-Indian codes, Vol. II, p. 892, f.n. 4. See also K.K. Seshien v. S.R. Sundar, AIR 2008 (NOC) 2289(Mad) . 8 Surendra Krishna Roy v. Mirza Md. Syed Ali, AIR 1936 PC 15. 9 Dwyer v. Collins, (1852) 7 Ex 639, 647. 10 Muni Ammal v. Govindarajan, AIR 1958 Mad 393. 11 Maneklal v. Ginwala, AIR 1950 SC 1; Surendra Krishna Raj v. Mirza Md. Syed Ali, AIR 1936 PC 15; Muni Ammal v. Govindarajan, AIR 1958 Mad 393; Purna Chandra Patnaik v. Kalidas Sen, AIR 1973 Ori 65; Narsidas v. Ravi Shankar,

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AIR 1931 Bom 33; Manidevi (Smt.) v. Anpurna Dai, AIR 1943 Pat 218; Nityananda Roy v. Rashbehari Roy, AIR 1953 Cal 456; Damodaran v. Poongavanam Ammal, AIR 2006 Mad 375 (para 6). 12 Rajendra Jha v. Tarkeshwar Prasad Agarwal, (1978) 57 Pat 426. 13 Krishnarao v. State of Andhra, AIR 1962 A.P. 249. 14 Dilipsingh v. Dhaniram, AIR 1976 Bom 38; Kashibai Martand v. Vinayak, AIR 1956 Bom 65 relied on. 15 Laxshmi Kanto Roy v. Nishi Kanto Roy, (1967) 71 Cal. W.N. 362. 16 Venkatarama Reddiar v. Vardaraja, AIR 1971 Mad 471; Biswanath v. Dhapu Debi, AIR 1960 Cal 494; British Transport Co. v. Suraj Bhan, AIR 1963 All 313. 17 Nityananda Roy v. Rashbehari Roy, AIR 1953 Cal 456; Kanhiyalal v. Jamnalal, AIR 1950 Raj 47; Sulochana Devi (Smt.) v. Govina Chandra Nag, AIR 1986 Cal 430; Sau. Parvatabai B. Raimande v. Anjanabai G. Hiware, AIR 2009 (NOC) 1264(Bom) . 18 Paramananda Sahu v. Babu Sahu & Ors., (1970) 36 Cut LT 1211. 19 Chandra Sekhar Pati v. Ahalya Devi, AIR 1974 Ori 199. 20 Abdul Rahman v. Rameshwar Prasad, AIR 1977 All 470.

8. EXISTENCE OF ORIGINAL ADMITTED IN WRITING [CLAUSE (b)] When the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved, or by his representative in interest, secondary evidence can be given. This clause has to be read with Section 22 of the Act which says that oral admissions as to the contents of a document are not relevant unless and until the party supposing to prove them shows that he is entitled to give secondary evidence of the contents of such document. The secondary evidence admissible under cl. (b ) is the written admission of the person against whom it is sought to be proved or by his representatives in interest, though the original is in existence and not produced. 21 Secondary evidence was held admissible when the opposite party admitted in a letter about the existence and contents of the document. 22 The Apex Court in the case of T. Mohan v. Kannamal, 23 has held that secondary evidence could be received as genuine if the existence of document is admitted. Where a high school certificate and a birth extract were admitted by the first appellate court, though not produced before the trial court, on an explanation given by the party that such documents were not in his possession, it was held that such admission of the documents was wrong and was vitiated for want of proof, as there was no admission in writing about the contents of those documents. 24 A denial of the execution of a bond, though accompanied by a statement of discharge of the debt, cannot be regarded as an admission within the meaning of Section 65(b) so as to dispense with the production of the document. A plea of ignorance of the execution of a document, accompanied by even an alternative plea of payment cannot amount to an admission of the execution of the document. 25 Where the plaintiff in a suit of specific performance of contract did not file the agreement to sell with the plaint and no explanation about its original was given thereto and when the defendants denied the existence of such agreement, the plaintiff sought for leading secondary evidence on the ground of losts of its original, it was held that a photocopy of the document could not be allowed to be proved by way of secondary evidence unless its execution was admitted by the other party. 26 A certified copy of the document containing admission of a party was held admissible against that party, for proving the admission, without confronting the party with his admission contained in a particular document. 27 Where the applicant claimed appointment as a Mutawalli by virtue of a Will but original Will was not filed by him, it was held that photocopy of the Will was not admissible. 28 A photostat copy of the statement of the deceased recorded by the S.O. of Police Station even if it was filed by the Investigating Officer himself, was held to be inadmissible in evidence unless it was proved. 29

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Where a suit was filed against a firm for recovery of an amount based on a pronote, a copy of the Balance Sheet enclosed with the Income Tax Return sent by the manager of the firm, which was given to the plaintiff by a partner of the firm, was filed by the plaintiff to show the subsisting liability of the firm and marked with consent, it was held that such statement acknowledging the liability of debt can be relied upon and is admissible. 30 Where the confession of an accused is not admissible, secondary evidence of it is not admissible, and Section 65(b) cannot be invoked because the accused put the thumb mark to that statement. 31 A debtor's application to the Debt Conciliation Board cannot be regarded as an admission under this clause . 32 Secondary evidence, by means of a written admission under this clause , cannot be given of the contents of a document, which is inadmissible for want of registration or of stamps. 33 Section 65(b) is not applicable to an admission of the contents of a document made by a defendant in his written statement, where the original itself was inadmissible for want of stamp. 34 21 Hira Lal v. Ram Prasad, AIR 1949 All 677; Jaigopal v. Divisional Forest Officer, AIR 1953 Pat 310; Bishwambhar Singh v. State of Orissa, AIR 1954 SC 139; Rammanlal v. Babu Ram, AIR 1941 All 50; Purushottama Chettiar v. Ramanuja Padayachi, (1969) 1 MLJ 237; Hari Singh v. Shish Ram, AIR 2003 P&H 150, 154 (para 12). 22 Biswanbhar v. State, AIR 1954 SC 139. 23 (2002) 10 SCC 82, relying on P.K. Gupta v. Varinder Sharma, AIR 2002 P&H 342, 347. 24 1966 All WR (HC) 634. 25 .4nanta Raghuram .4rya v. Rajah B. Nagachaya Devamma, AIR 1958 A.P. 418. 26 Banarsi Dass v. Om Prakash, AIR 2005 P&H 200, 202 (para 15). 27 Bhag Singh v. Bhaika Bhag Co-operative Society Ltd., (1979) 81 Punj. LR 255. 28 Shri Rukunuddin Khan v. Controller, U.P. Sunni Central Board of Waqfs, AIR 2004 NOC 29(All) : 2003 All LJ 2129 : 2003 AIHC 4452 : 2003 (3) All WC 1711 : 2003 (2) All CJ 1137. 29 Manohar Singh v. State, 2005 CrLJ 219, 2925 (para 35) (Uttar). 30 V.K.M. Electrical Stores v. Lakshmi Kanthamma, (1968) 2 An. W. R. 567. 31 R. v. Viran, ILR 9 Mad 224, 240. 32 Udhao v. Nanaji Gadewar v. Narayan Vithoba Rangliwar, (1941) Nag 95. 33 Varada v. Krishnasami, (1882) 6 Mad 117; Damodar Jagannath v. Atmaram Babaji, (1888) 12 Bom 443. 34 Krishnaswami v. Ranga Swami, ILR 7 Mad 112; Pramathanath v. Drawaka, ILR 23 Cal 851; Damodar v. Atmaram, (1888) 12 Bom 433.

9. ORIGINAL DESTROYED OR LOST [CLAUSE (c)] Clause (c) consists of two parts: the first part is an independent one, stating that when the original document had been destroyed or lost, he can produce secondary evidence; the second part comes when a party offering evidence of its contents cannot, for any other reason, not arising from his own default or neglect, produce it in reasonable time. The words in the second part "arising from his own fault or neglect" do not qualify the first part, but apply only to the second part. When a party admitted that he had not preserved the original, the opposite party can give oral evidence of it. 35 Secondary evidence of a document which is lost or difficult to trace can be adduced in two ways:

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3)   executed; 3)  

by oral evidence of persons who were present when the document was by a certified copy of the original document.

36

Where certified copy of a sale deed could not be obtained as the record of the Registrar's Office was destroyed, but, the plaintiff produced a copy prepared from a certified copy which the defendant had produced in a former suit, but which was not available as the court record also had been destroyed, it was held that the copy produced by the plaintiff was admissible. 37 Where the original certified copy of the certificate of registration of a premises was lost but the certificate number and the year of registration was given by the tenant, he would be permitted to adduce the secondary evidence to prove the attested copy of the certificate. 38 Where a person in whose custody the document was alleged to be, deposed to its loss, or that he was not in possession of the document, unless there is some motive suggested for his being untruthful, such evidence should be accepted as sufficient to allow secondary evidence. 39 A bare statement, on affidavit of the person, who was required to file the document and to prove the fact, that the document has been lost would ordinarily be the evidence of said fact. 40 Where the plaintiff stated that he never received the original Will of his father, the certified copy of the Will was held to be admissible in evidence for the purpose of proving the contents of the Will. The compliance of Ss. 65 & 66 of the Evidence Act were held to be not required. 41 It is enough for the plaintiff to prove that the original is not in his possession as so far as he is concerned, it is lost. 42 Copies of registered documents are admissible as secondary evidence where the person in whose custody the original should be, swears that they are not with him, though there is no evidence as to the loss or otherwise of the original. 43 Where there was evidence on record to show that the original will had been eaten away by rats, the secondary evidence was admissible under the law. 44 Where an original order authorising an officer to do certain act s was not traceable, it was held that secondary evidence of such authorisation is admissible under cl. (c ). If it is a public document, cl. (e) would only apply where there was loss of the original. 45 Where the original records have been lost, it is open to a party to offer evidence of the contents, and such secondary evidence includes copies made from or compared with the original, and also oral evidence as to the contents, given by some person who has seen the original document. 46 Where to prove the loss of the original arbitration award one of the arbitrators was examined, the photocopy of the said lost award bearing the signature of the said arbitrator and the signatures of both the parties was admissible in evidence. 47 Where a solicitor stated on oath that he was entrusted by the plaintiff with two original hundies, and that the copy of each of the two hundies was prepared under his supervision and compared with the originals which was later found missing, it was held that the copies of the hundies and their contents can be received as secondary evidence under Section 63(3) and 65(c ). 48 Original documents not traceable can be said to be lost and certified copies thereof may be received as secondary evidence. 49 When the original document was filed already in a court in a different State, its certified copy is admissible under Section 65(c). 50 Where a certified copy of the document thirty years old, was produced and there was evidence showing the loss of the original, and its non-production thereof was not due to fault or neglect, the certified copies could be received as secondary evidence of the original. 51 Where the plaintiff filed the suit for title and possession, relying on a kabuliyat , the original was not in his possession and the production of the original was found not reasonably possible for the plaintiff, it was held that the certified copy of the kabuliyat can be accepted in view of Section 65(c). 52 Where a promissory note filed with a plaint disappeared from the court file, it was held that the plaintiff was entitled, without showing how the disappearance of loss arose or who abstracted it from the file, to give secondary evidence of it. 53 Where the original suit agreement was filed but was lost from the court's custody, its true copy was held admissible in the absence of any rebuttable evidence. 54 Where the record in a case has been destroyed and is therefore not available for the purpose of proving previous convictions, secondary evidence under this clause is admissible. 55 An original document was filed before the sub-registrar but the registration was refused. A suit was filed under Sections 77 of the Registration Act , wherein the original document was filed, but, part of the document was subsequently missing from the record of the court. It was held that the court could admit secondary evidence of the document and, after reconstructing the document, and could order the registration of the document. 56 Secondary evidence was allowed where the plaintiff stated on oath in an affidavit that the original was

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lost, and also where the sale deed was handed over to a patwari and the same was not returned by him. 57 Where the original document has either been lost, or is being deliberately withheld, by the person in whose custody it was kept, secondary evidence in the nature of oral evidence as to the contents of the original can be admitted in evidence. 58 Copies of telegrams are admissible in evidence as secondary evidence, after the lapse of three months, as a presumption arises under the Telegraph Rules that originals are destroyed after three months; 59 but where the appellant failed to produce the original Will with the contention that original Will which was filed in another earlier suit was destroyed by the Court. It is evident that the appellant obtained a certified copy of the Will first after ex parte decision of that suit but he did not move little finger to obtain the original Will which was a more precious document to prove her title over property, until a period of more than nine and half years, the certified copy of the Will issued by said Court would not be taken as secondary evidence in proving the Will as appellant can not cash out the gross lapse on her part. 60 The xerox copies of dying declarations of the deceased and Bed Head ticket produced before Court in a murder case, in absence of any evidence to show that original had been lost or destroyed were held to be inadmissible in evidence as secondary evidence. 61 Where the original partition deed was found non-traceable the xerox copy of the said partition deed was held to be admissible in evidence as secondary evidence. 62 Where there is no evidence showing that the document is lost, this section is not applicable. 63 A copy of the document cannot be admitted as secondary evidence unless the loss of the original is proved and the copy tendered is proved to be a correct copy of the original. 64 Where there was no proper and sufficient explanation offered as to why a power of attorney under which a deed had been executed, was not produced, the Privy Council held that the evidence of the managing clerk who had read it was useless for proving its contents. 65 Non-production of the original on the ground of the record being very old and the primary evident not being available despite best efforts, was held to be not sufficient and the attested copy was held to be inadmissible. 66 A certificate of age of the prosecutrix in a rape case issued by the school Head Master on the basis of admission form cannot be said to be a primary evidence. Due to non-production of admission form which was primary evidence on which basis said certificate was prepared by the Head Master, the certificate issued by Head Master was held to be inadmissible in evidence as there was nothing on record to show that the primary evidence was lost. 67 Under Section 65, secondary evidence is admissible only of the existence or the contents of a document which is lost, but the execution of the document must be proved be primary evidence as required by Section 67 read with Section 47. 68 Before invoking the aid of this section, foundation must be first laid for its reception, by proving that the original document was lost or that the party was not in a position to produce it, and that, to the satisfaction of the court. 69 Secondary evidence can only be admitted when the court is satisfied that the original was lost or destroyed, or when the party is unable to produce it within a reasonable time for any other reason. 70 In order to claim the benefit of Section 65(c) there should be credible evidence of the loss of the original. Thus, it must be established that the party has exhausted the sources and means in the search of the document, which were available to him. 71 Loss of the original has to be proved beyond all reasonable doubt. 72 The evidence about the search and the enquiries made about the original, and the evidence about its loss are necessary before secondary evidence is admitted in proof of the original. 73 Original registered will is not a public document, and a certified copy of it is not admissible without proof of the loss of the original. 74 Evidence of a person deposing to the loss of the document in his custody is sufficient to allow secondary evidence. 75 There must be evidence on record to show that the document has been lost. 76 To prove the loss of a document, evidence of diligent search is necessary. See illus. (b) to Section 104. Copies are inadmissible without proof of the search of the originals. 77 The loss of a document can never be proved absolutely. Where a document has not been seen for many years, the statement by a person who was alleged to have been in possession of it, that it was never with him nor was it with him then, is sufficient evidence of its loss. 78 If a registered sale deed is lost, a certified copy can be put as secondary evidence, but the reception of other evidence must always be of a very weak character in place of registered document evidencing the transaction. 79

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In an election petition, the photo copy of the manuscript of a leaflet was not allowed because it was not shown where the original was. There must be some explanation about the original. 80 Where there is a finding that the loss of the original document is fully explained and established, it is a finding of fact; and it is not open in second appeal to set aside that finding on the basis of the insufficiency of evidence. 81 When a document is lost or destroyed, the provisions of clause (e) & (f) are not attracted, it is only clause (c) applies and it is not controlled by cl. (e) & (f). Section 65(c), which is independent of cl. (e) & (f), applies to all cases, whereas clause (e) & (f) apply only to those documents which are in existence in public records but are to be protected from the risk to which they would be exposed any constant production in courts. So certified copies are necessary only in respect of such documents. 82 35 Pearey v. Nanak, AIR 1948 PC 108. 36 Veerappa v. Md. Attaullah, 1951 Hyd 74. 37 Bibi Aisha (Mst.) v. Bihar Subai Sunni Majlis Avaqaf, AIR 1969 SC 253; Shehal Kumar v. Economic Transport Corporation Organisation, AIR 1975 Guj 73; Surjit Kaur v. Nachhattar Singh, 2001 AIHC 556 (paras 1 and 12) (P&H) : AIR 2001 NOC 15 (P&H) ; Bhumiputra Commerce Bank v. P.V.P. Products Ltd, AIR 2006 (NOC) 1350(Bom) : 2006 AIHC 2474. 38 Tulsi Devi v. Som Nath, 1997 AIHC 253 (paras 6 and 10) (HP). 39 M. Ihtishan Ali v. Jamna Prasad, AIR 1922 PC 56; Basant v. Brijraj, AIR 1935 P.C. 132; S. Rathnammal v. Mottadu, 1998 AIHC 3094 (para 12) (Mad). 40 Pandurang G. Dodka v. Lanka P. Kshirsagar, AIR 2005 Bom 427 (para 8). 41 Hameed v. Kanhaiya, AIR 2004 All 405, 415 : 2004 All LJ 3654 : (2004) 57 All LR 51 : 2005 (1) Civil Court C 146 : 2004 Rev Dec 559 (para 40). On this point High Court has discussed and referred various decisions of the privy counsil, Supreme Court and other High Courts. 42 Biswanath Agarwalla v. Dhapu Debi Jejodia, AIR 1960 Cal 494, 500. 43 Hutchegowda v. Chennigegowda, AIR 1953 Mys 49. 44 Chandan v. Longa Bai, AIR 1998 MP 1. 45 Babu Jagjiwan Dass v. Chotey Lal, 1964 All LJ 788; relying on Chikka Veerasetty v. Nanjundachari, AIR 1955 Mys 139; Lakunandan v. Kunhunm, ILR 6 Mad 80; Ananda Kumar v. Secretary of State, AIR 1916 Cal 446; Chandreshwar Prasad v. Bisheshwar Pratap, AIR 1927 Pat 61. 46 Pran Jivan Jaitha v. State of West Bengal, AIR 1974 Cal 210. 47 Om Prakash v. Dev Raj, AIR 1995 P&H 349 (para 14). 48 Balaram Das v. Kesardeo Khemka, (1967) 71 Cal WN 51. 49 Sanatan Mahonty v. Baidhar Rout, AIR 1986 Ori 66; Hariharpal v. Sudhir Kumar Pal, AIR 1988 Cal 68. 50 Biharilal Agarwalla v. Tamizul Haque, AIR 1988 Gau 1. 51 Hariharpal v. Sudhir Kumar Pal, AIR 1988 Cal 68. 52 (1977) 1 Cal. LJ 578. 53 Tulsi Ram v. Ram Saran, (1924) 27 Bom LR 777(PC) : AIR 1925 P.C. 80. 54 Harijiwan Sahu v. Jairam Sahu, AIR 1989 Pat 96. 55 Pokar v. Crown, (1941) Kar 308. 56 Saraswati Bai (Smt.) v. Md. Idarkuddin, AIR 1963 MP 234.

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57 Sanatan Mohanty v. Baidhar Rout, AIR 1986 Ori 66; Krishna Devi v. Gian Kaur, AIR 1981 P&H 224. 58 Ramchand Gupta v. Wazir Chand, AIR 1962 Punj 293. 59 State v. Ganpat Lal, 1969 Raj LW 537; Manchalal v. Shah Manickchand, AIR 1988 Kant 221. 60 Anthonimmal v. Appavu (A) Anthoniswamymania Karan, 2004 AIHC 1566, 1568 (para 8) (Ker). 61 Pokani v. State of Orissa, 2004 CrLJ 689, 693 (para 11) (Ori) : (2003) 26 OCR 433. 62 Govardhan P. Thakare v. Janardhan G. Thakare, 2005 AIHC 1276, 1278 (para 6) (Bom). 63 Bhubaneshwari Debi v. Harisaran, (1881) 6 Cal 720(PC) ; Krishna Kishori v. Kishorilal, 14 Cal 486(PC) ; Bhagwan Sarup v. Jagdish Kumar Jain, 2000 AIHC 1373 (para 6) (P&H); K.R. Roshy v. State of Kerala, 2005 CrLJ 3657, 3660 (para 6) (Ker); Sreedevi Amma v. Jayalakhmi, 1998 (1) Ker LT 197. Loss of original Will not proved, photostat not admissible, In the matter of : Goods of Late Ghan Shyam Das Soni , 2007 AIHC 762, 766 (para 20) (All). 64 Anand v. Dinshaw & Co., AIR 1946 PC 24; Mohanlal v. Samal, AIR 1961 Pat 300; Sardaran v. Sunderlal, AIR 1968 All 363. 65 Bonnerjee v. Sithanath, 49 IA 46 : 49 Cal 325. 66 Akshara Nand v. State of H.P., 1996 AIHC 1894 (paras 4 and 5) (HP). 67 Jeev Rakhan v. State of M.P., 2004 CrLJ 2359, 2361 (para 12) (MP) : 2004 (3) Cur CrR 613 : 2004 (2) MPHT 158 : 2004 (3) Rec Cri R 577. 68 Akshay Narayan v. Maheshwar Bag, AIR 1958 Ori 207; relying on Haria v. Manakchand, AIR 1914 Nag 87; Lahani v. Bala, AIR 1922 Nag 227; Ponnuswami Goundan v. Kalyana Sundara Ayyar, AIR 1930 Mad 770; Manilal Raghvaji v. Union of India, AIR 1956 Pat 434. 69 Sital Das v. Santa Ram, AIR 1954 SC 606; Jagadish Prasad v. Girija Shankar, AIR 1968 All 425; (case of a will); Filmistan Pvt. Ltd. v. Municipal Corporation Bombay, AIR 1973 Bom 66; Parekh Brothers v. Kartick Chandra Saha, AIR 1968 Cal 532; Katihar Jute Mills Ltd. v. Calcutta Match Works (India) Ltd., AIR 1958 Pat 133; Bank of India v. Allibhoy Mohammed, AIR 2008 Bom 81, 85-86 (para 29); Bank of Baroda, Bombay v. Shree Moti Industries, Bombay, AIR 2008 Bom 201, 204 (para 25). 70 Yenkata Ramanujacharyulu v. Appalacharyulu, AIR 1926 Mad 1003; Rajendra Narayana v. Biharilal, AIR 1932 Pat 157; Yeerasetty v. Nanjundachari, AIR 1955 Mys 139; Katihar Jute Mills Ltd. v. Match Works Ltd., AIR 1958 Pat 133; Manilal Raghavji v. Union of India, AIR 1956 Pat 434; Ramchand Gupta v. Wazirchand, AIR 1962 Punj 293; Akshya Narayan v. Maheshwar Bag, AIR 1958 Ori 207; Pearey Lal v. Nanak Chand, AIR 1948 PC 108; Om Prakash v. State, AIR 1957 All 388; R.M. Pandye v. Automobile Products of India Ltd., AIR 1956 Bom 115; Satyacharan v. Hrishikesh Kedar, AIR 1959 Cal 795; Babu Jagjiwan Das v. Chhoteylal, 1964 All LJ 788; Kangabam Ongbi v. Guru Mayum Ningol, AIR 1958 Manipur 16. 71 Bobba Suramma (Smt.) v. Peddi Reddi Chandramma (Smt.), AIR 1959 A.P. 568; Ananta Raghuram Arya v. Rajah B. Nagachaya Devamma, AIR 1958 A.P. 418; Bishwanath Agarwalla v. Dhapudebi Jajodia (Smt.), AIR 1966 Cal 13; Atra Devi v. Ramswaroop Prasad, AIR 1972 Pat 186; Mohanlal Sah v. Samal Ram Potdar, AIR 1961 Pat 300; Suraj Bhan v. Harchandgir, AIR 1954 Pepsu 65; Kangabam Ongbi Tongbram v. Gurumayum Ningol, AIR 1958 Manipur 16; Parekh Brothers v. Kartick, AIR 1968 Cal 532; Maung Bau v. Dan Kha, AIR 1935 Ran 502; Pandu v. Bapudas, AIR 1929 Nag 288; Gaya v. Jaswant, AIR 1930 All 550; Vishvanath v. Rahibai, AIR 1931 Bom 105. 72 Benga Behera v. Braja Kishore Nanda, (2007) 9 SCC 728, 738 (para 32). See also Neebha kapoor v Jayantilal Khandwala, (2008) 3 SCC 770, 773 (Para 11 ). 73 Rabindra v. Santosh Kumar, AIR 1975 Cal 381. 74 Parsa Singh v. Parkash Kaur (Smt.), AIR 1976 Punj 235. 75 Laiqan Begum v. Abdul Hamid, AIR 1979 RajadhaniL.R. 545(Del) . 76 Mond Khan v. Sheo Bhikh Singh, (1930) 5 Luck 377. 77 Krishna Kishori v. Kishori Lal Roy, (1887) 14 Cal 486 : 14 I.A. 71; Haripria Debi v. Rukmini Debi, (1892) 19 Cal 438, 19 I.A. 79. 78 Basant Singh v. Brij Raj Saran Singh, (1937) Bom L. R. 805, 62 I.C. 180 : ILR 57 All 494 : AIR 1935 PC 132. 79 Entisham Ali v. Jamna Prasad, (1922) 24 Bom. IR 675 : 48 I.A. 385; Nani Bai v. Gita Bai, AIR 1958 SC 706.

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80 Ashok v. Madhav Lal, AIR 1975 SC 1748. See also Joginder Pal v. Parduman Singh, 1999 AIHC 1093 (para 4) (P&H), distinguishing Mohinder Pal Singh v. Surjit Singh, 1995 (2) PLR 204 and Raj Kumar v. Lal Chand, 1994 (1) Civil CC 477. 81 Bansraj Kahar v. Kaushal Kishore Saran, AIR 1973 All 99. 82 Chikka Veerasetty v. Nanjundachari, AIR 1955 Mys 139; Tara Ram Chand v. State, 1971 CrLJ 1201(Ori) ; Babu Jagjiwan Das v. Choteylal, 1964 All LJ 788.

10. CRIMINAL PROCEEDINGS In the case of a criminal trial, where the original police papers and documents were missing, it was held that, by itself, that was not a ground to quash the proceedings, and that the question whether secondary evidence could be admitted was for the trial court to decide, with reference to each document. 83 It was held that, even if the originals have not been produced, as provided by Section 173(5)(b) of the Cr. P.C.,Section 65 is wide enough to enable the accused to use the copies delivered to him as secondary evidence for purpose of contradicting the witnesses. 84 On proof of loss of the original dying declaration, secondary evidence can be given by the prosecution. 85 When an accused preferred a cross-complaint, and an uncertified copy of the complaint was produced through a defence witness, and not by the accused himself, it was held that, if the complaint is treated as a public document, then under Section 65(f), an uncertified copy would not be admissible, and secondary evidence would not be admissible under Section 62 when the original is available. 86 Where the original first information report, which was written by a constable, was missing and the constable proved its carbon copy and also the loss of the original, it was held that the carbon copy was admissible and the investigation was not vitiated by the loss of the original F.I.R. 87 Where no steps were taken to recover the original or to produce it before the court, and when the trial court also entertained doubt about its execution, it was held that it would be clear miscarriage of justice to admit secondary evidence. 88 83 Sudhakar Dinkar Malekar v. Hemu Prabhudas Thakur, (1981) 83 Bom LR 496. 84 State of Kerala v. Raju, 1982 CrLJ 304(Ker) . 85 Aher Rama Gova v. State of Gujarat, AIR 1979 SC 1567. 86 Lalpratap Singh v. State, (1963) 1 CrLJ 355(Guj) . 87 State of U.P. v. Kubhi Ram, 1969 All LJ 982. 88 Ramanna v. Sambamoorthy, AIR 1961 AP 361.

11. CONTEMPT PROCEEDINGS In contempt proceedings relating to a newspaper article, when the question of authorship is to be decided, it may be determined by statement on affidavit of persons from relevant departments of the newspaper, or by examining them in Court. The article, accompanied by covering letter on the letter head of a certain advocate, was not produced, nor was the loss proved; evidence of witness from the newspaper was held admissible only regarding the name of the person on the letter head and not about the contents. 89 89 In the matter of Basanta Chandra Ghosh Adv., Patna, AIR 1960 Pat 430(FB) .

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12. LOST WILL The original will in Bengali was executed before 1921, and it was not traceable. In about 1936, the widow of the testator had filed in the Court of Wards Office, the original or a copy of it. There was a translation of the will by that office but not of the entire will. The name of the translator was not mentioned in the translation. A certified copy of the translation was signed by an officer who did not know the language in which the will was written but who stated it was a true and correct translation. On those facts it was held that, even though the certified copy could be treated as secondary evidence of the original, it could not be believed as a reliable translation of the original; that the document attached to the application of the widow to the Court of Wards might not have been the original, but a copy, and the translation would be the translation of the copy and so would not be admissible as secondary evidence of the original will. 90 Grant of probate is conclusive evidence against all. Secondary evidence is admissible to prove it when there is loss of the original will. 1 Secondary evidence can be accepted in case of the registered will if loss of original is pleaded and proved satisfactorily, provided there is compliance with the provisions of Section 65 (a), (b) and latter part of (c). 2 In regard to wills, proof of a lost will can be given by secondary evidence as in the case of any other lost document, because, in principle, there is no distinction between the proof of a document and proof of a will. Where the testatrix destroyed the earlier will, after executing a fresh will which was found to be invalid, it was held that the earlier valid will could be proved by oral evidence. 3 For the purpose of allowing the secondary evidence, the court has only to form an opinion about the loss of the document and not with regard to its existence. Where the Court recorded the positive finding that the plaintiff failed to prove execution of the original Will, secondary evidence could not be allowed to prove the existence of the Will. 4 Loss of a will does not operate as revocation of it, and a certified copy of it is admissible. 5 Where the court comes to a conclusion that a will has been lost it has to allow the party to lead secondary evidence, by giving a finding to that effect. 6 90 Thakur Krishna v. Kanhayalal, AIR 1961 All 206; relying on Raja Mahadeva Royal v. Raja Virabasava Chikka Royal, AIR 1948 PC 114; In re : Tarit Kanti, AIR 1918 Cal 988(S.B.) . 1 Satyacharan Dass v. Hrishikesh, AIR 1959 Cal 795. 2 Gutari v. Shivcharan, AIR 1980 Hindu LR 273(FB) (P&H). 3 Russell v. Delaney, (1951) 1 All ER 920. 4 Meena Sharma v. Rama Sharma, AIR 2007 (NOC) 2671(P&H) . 5 Babulal v. Baijnath, AIR 1946 Pat 24. 6 Balbir Singh v. Darshan Kaur, (1977) 1 Punj 239 : (1976) 78 DLR 239.

13. UNPROBATED WILL Unprobated Will can be admitted in evidence for collateral purposes in any other proceedings apart from probate proceedings. 7 7 Commissioner, Jalandhar Division v. Mohan Krishan Abrol, (2004) 7 SCC 505, 513 (para 10) : AIR 2004 SC 2060, relying on Cherichi v. Ittianam, AIR 2001 Ker 184.

14. CLAUSE (d)--ORIGINAL NOT EASILY MOVEABLE This clause covers things not easily moveable, as in the case of things fixed in the ground, or a building for example: notices painted on walls, tablets in buildings, tombstones, monuments, or marks

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on boundary stones or trees. Secondary evidence is admissible in such cases, on account of great inconvenience and impracticability of producing the original. P HIPSON (15th Edn. (2000), para 41-35 pages 1123-24) states: "When production of the original is physically impossible or highly inconvenient, e.g., inscriptions on walls, tombstones, etc., unless there are circumstances of suspicion, the object itself will not have to be produced....Where a notice was merely suspended from a wall by a nail, it was held necessary to produce it at the trial; but where the notice, though movable, was one required by statute and under a penalty to be kept constantly affixed, it was held, on grounds of convenience, that secondary evidence thereof might be given without notice to produce the original". 8 Electronic record.-- Information contained in the cell phone call records is stored in an electronic instrument called 'Servers' which are huge instruments and cannot be moved and produced in the Court. Hence, it was held that the printouts taken from the computers/servers by mechanical process and certified by a responsible official of the service providing company can be led into evidence through a witness who can identify the signatures of the certifying officer or otherwise speak to the facts based on his personal knowledge. Irrespective of the compliance of the requirements of Section 65B which is a provision dealing with admissibility of electronic records, there is no bar to adducing secondary evidence under the other provisions of the Evidence Act, namely Sections 63 & 65. It may be that the certificate containing the details in sub-section (4) of Section 65B is not filed in the instant case, but that does not mean that secondary evidence cannot be given even if the law permits such evidence to be given in the circumstances mentioned in the relevant provisions, namely Sections 63 & 65. 9 8 See also H ALSBURY 4th Edn. Vol. 17 (para 141) page 104. 9 State (NCT of Delhi) v. Navjot Sandhu, 2005 CrLJ 3950, 4010 (para 15) : (2005) 11 SCC 600.

15. CLAUSES (e) & (f)--WHEN ORIGINAL IS A PUBLIC DOCUMENT OR WHOSE CERTIFIED COPY IS LEGALLY PERMITTED Clause (e) is intended to protect the originals of public records from the risk to which they would be exposed by constant production in evidence. Secondary evidence is admissible in the case of public documents mentioned in Section 74. Section 74 provides that public records kept in any State of private documents are also public documents. Certified copies are admissible as secondary evidence under clause (f). Sections 76, 78 and 86 may be read along with it. Where an original document cannot be given in evidence owing to a statutory ban, its certified copy cannot be admitted in evidence, e.g., certified copy of the income tax return 10 or that of a sale deed for determining the amount of compensation for the land acquired. 11 Section 78 of this Act mentions certain documents for which certified copies have to be given. The other statutes which provide for issue of certified copies are Section 4of the Banker's Book Evidence Act, of the , Section 4(d) of Powers of Attorney Act, and Sections 69 of the Registration Act . The last but one paragraph of this section provides: "In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible". This applies to the case in which the public document is still in existence on the public records. 12 Where a case falls under clause (a) or clause (c) and also under clause (f) any secondary evidence may be received. 13 A copy of the Municipal record not issued in accordance with the requirements of the Municipal Act is not relevant. 14 The object of these two clause s was clarified in an old Madras case by stating that the rule in Cl. (e) or (f), that a certified copy of the document, but no other kind of secondary evidence is admissible, applies to a case in which the public document is still in existence on the public records, and is a provision intended rather to protect the originals of public record from the danger to which they would

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be exposed by constant production in evidence, than to interfere with the general rule of evidence given in Cl. (c) of the same section, that secondary evidence may be given when the original has been destroyed or lost. 15 The Calcutta High Court excluded certified copies of records of a foreign court on the ground that they were not proved according to the mode mentioned in Section 56. The Privy Council observed that under Sections 65 & 66, evidence may be given of public documents without notice to the adverse party when the person in possession of the document is out of the reach of or not subject to the process of court. By relying in Section 65 & 66 it would appear that the Privy Council impliedly held that 65(e) & (f) are not the only provisions applicable to public documents. 16 Public documents can only be proved by the production of certified copies; they cannot be proved by oral evidence. 17 A copy or a certified copy of the assessment order, though a confidential document under Sections 54 of Income-tax Act (1922) was held to be admissible in evidence, if it is produced by an assessee or his representative-in-interest.18 A reading of cl. (e) and (f) would show that certified copy is admissible in evidence though the original is in existence. 19 Secondary evidence of documents held as public documents within the meaning of Section 74 can be given by tendering certified copies thereof. 20 A registered document does not fall under either clause (e) or (f). The entry in the register book is a public document; but, the original is a private document. When a true copy of a gazette notification is received in evidence without any objection, the other party cannot object subsequently that such secondary evidence is not admissible. 21 Where public official documents of other States were tendered in evidence, it was held that the authorities before which the documents were tendered must give credit to them, and that they should not ignore them on suspicion. 22 If the sale deeds were the primary evidence of the interest sold and were said to be registered documents, which were not available for any reason, certified copy thereof could be adduced as secondary evidence, but the reception of other evidence must always be of a very weak character in place of the registered document evidencing those transactions. 23 Whenever a transaction evidenced by a sale deed is required to be brought on record, to prove the execution of which the original sale by way of primary evidence, is not available, its certified copy can be taken on record and the same is admissible in evidence, if the condition precedent therefor in terms of Sections 75 of the Evidence Act are fulfilled. 24 Under Sections 57(5) of the Indian Registration Act , the certified copy obtained from the Registrar's Office shall be admissible for the purpose of proving the contents of the document; and no further proof is required.25 Where a registered will is in possession of the person interested in denying the execution, the certified copy of the will is admissible as evidence of the execution of the will. 26 Where the certified copy of a will obtained from the Court where its original was produced, was filed and admitted, non-production of the original could not be urged as a ground later on to invalidate the will. 27 Secondary evidence in the form of an ordinary copy is admissible, when both the original and the certified copy is lost. 28 A sale deed was missing from the record of an earlier revenue suit, and procurement of a certified copy was impossible due to destruction of the relevant register for registration of documents. It was held that the vendee should prove its existence and contents by offering secondary evidence; the prohibition contained in the proviso requiring the production of only certified copy of the document as secondary evidence cannot be regarded as exhaustive. 29 Reception of the xerox copy of the certified copy of order of Court/public document is permissible under Section 65(e) of the Evidence. It is not necessary to assert that the document in question is in the possession of the party concerned. 30 Where the plaintiff produced a certified copy of a registered deed in support of his claim and withheld the original which should have been in his possession, it was held that the deed, not being a public document, he was rightly denied the benefit of this section. 31

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Where predecessors-in-interest of the plaintiffs stated in their written statement in an earlier suit that the rights of his tharawad were lost by adverse possession and limitation and the predecessor-ininterest of the respondents had perfected their right to those properties including property in subsequent suit by adverse possession and limitation was accepted by Court it, was held that the plaintiffs at that distant point of time could not contend that the written statement was not admissible being the certified copy of written statement, it being not a public document under Sections 65 of Indian Evidence Act .32 10 Devidatt v. Shriram, (1931) 34 Bom LR 236 : ILR 56 Bom 324 : AIR 1932 Bom 291. 11 State of Kerala v. Chalil Saidali, 1999 AIHC 3262 (para 6) (Ker). 12 Bibi Aisha v. Bihar S.S.M. Avaqaf, AIR 1969 SC 253; Hurish v. Prosunno, AIR 22 WR 303; Anadha v. Secretary of State, ILR 43 Cal 973; Pran Jivan v. State of West Bengal, AIR 1974 Cal 210; Janu Khan v. State, AIR 1960 Pat 213; Chacko Pyli v. State of Kerala, (1966) 1 Ker 320; Somanna v. Subba Rao, AIR 1958 AP 200; Mathuradas v. State, AIR 1954 Nag 296; Pannalal v. State, AIR 1953 MB 84. 13 In the matter of a collision between the "Ava" and the "Brenhilda", (1879) 5 Cal 568, 573; approved by the Supreme Court in Bibi Aisha v. Bihar, SSM Aaqaf, AIR 1969 SC 253. 14 Ganesh Prasad. v. Badri Prasad Bhola Nath, AIR 1980 All 361. 15 Kunneth v. Vayoth, (1882) 6 Mad 80; Veera Shetty v. Nanjundachari, AIR 1955 Mys 139. 16 Haranand v. Ramgopal , ILR 27 IA 1 : 27 Cal 639. 17 Gangaram v. Emperor, (902) PR No. 5 of 1903 (Cri). 18 Tulsiram v. Annibai, AIR 1971 SC 671 : (1971) 1 SCC 284, affirming Orissa High Court, in Tulsiram v. Annibai, AIR 1963 Ori 11. 19 Krishnakishori v. Kishorilal, ILR 14 Cal 486(PC) ; Ram Prasadv. R., AIR 1945 Pat 210; Venkata Gopala Ramarao v. Venkataramayya, AIR 1940 Mad 768; Chandreswar v. Bisheswar, AIR 1927 Pat 61; Annada Charan v. Emperor, AIR 1943 Cal 251; Veera Shetty v. Nanjundachari, AIR 1955 Mys 139. 20 See commentary on Section 74 as to what are public documents. 21 State of Kerala v. V.P. Enadeen, AIR 1971 Ker 193(FB) . 22 Vijay Wine Stores v. State of Karnataka, (1975) 1 Kant LJ 170. 23 Nanibai v. Gitabai, AIR 1958 SC 706. See also Rekha Rana v. Ratnashree Jain, AIR 2006 MP 107, 114-15 (para 18); Ved Prakash Rastogi v. Nagar Palika, Budaun, AIR 2008 AII 27, 32 (para 23), relying on 1981 All LJ 263. 24 Cement Corporation of India Ltd. v. Purya, (2004) 8 SCC 270, 279 (para 22). 25 Karuppanna v. Kolandaswami, AIR 1954 Mad 486; Chudasama Khoduba v. Chudasama Takhatsand; AIR 1922 Bom 177(2); Saliman v. Hakim, AIR 1928 All 394; Ma Yin v. Ma Bok, AIR 1929 Rang 277; Patel Manilal v. Municipal Corp., Surat, AIR 1978 Guj 193; Pattu Kumari v. Nirmal Kumar Singh, 43 CWN 907 : AIR 1939 Cal 569 (certified copy of an entry in the register of power of attorney); Romti v. Ratno, (1969) 71 Punj LR 17(Del) ; S. Madasamy Thevar v. A.M. Arjuna Raja, AIR 2000 Mad 465 (para 39). 26 Arya Prathinidhi Sabha v. Devraj, AIR 1963 Punj 208. 27 S.A. Quddus v. S. Veerappa, AIR 1994 Kant 20 (para 13). 28 Marwari Kumhar v. Bhagwanpuri Guru Ganeshpuri, AIR 2000 SC 2629 (para 11). 29 1970 All WR (HC) 637. 30 Arulmigu Dhandauthapanj Swamy v. Sthanika Miras, AIR 2007 (NOC) 816(Mad) . 31 Gurmukh Ram Madan (Dr.) v. Bhagwan Das Madan, AIR 1998 SC 2776. 32 Raman Pillai Krishna Pillai v. Kumaran Parmeswaran, AIR 2002 Ker 133, 141, relied on Nagindas v. Dalpatram, AIR 1974 SC 471 : (1974) 1 SCC 242.

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16. DOCUMENTS OF WHICH A CERTIFIED COPY IS PERMITTED UNDER LAW Where a document is registered, but the entry is made in a wrong book in the Registrar's Office, the deed is validly registered. 33 Hence, upon proof of the loss of the original, a certified copy though entered in the wrong book bearing the certificate of the registering authority as being a true copy, is admissible as secondary evidence. 34 A certified copy of a statement of account of entries in the Banker's Book is admissible. 35 Hindu Marriage Register, being a public document, contents of its certified copies are admissible in evidence. 36 A certified copy of a sale deed under Sections 51-A of the Land Acquisition Act , 1894.37 Where the landlord refused to produce the original deed and the tenant sought to produce a photocopy which was neither a certified copy nor a true copy indicating endorsement, it was held that it did not meet the requirement of Section 65. 38 33 Satindranath v. Jatindranath, 1935 PC 165 : 62 IA 265. 34 Bishwanath Agarwalla v. Dhapu Debi Jajodia, AIR 1960 Cal 494. 35 Calcutta National Bank Ltd. v. Sonapur Tea Co. Ltd., AIR 1957 Cal 9. 36 Manjula v. Mani, 1998 CrLJ 1476 (paras 16 and 20) (Mad). 37 Cement Corporation of India Ltd. v. Purya, (2004) 8 SCC 270, 280 (para 27). 38 Haji Mohd. Islam v. Asgar Ali, AIR 2007 MP 157, 160-61 (para 14), relying on Badrunnisa Begum v. Mohamooda Begum, AIR 2001 AP 394 and United India Assurance Co. Ltd. v. Anbari, (2000) 10 SCC 523 (para 3).

17. ORIGINALS CONSISTING OF SEVERAL ACCOUNTS OR CAN'T CONVENIENTLY BE EXAMINED [CLAUSE (g)] This provision is meant for saving public time. Where the fact to be proved is the general result of the examination of numerous documents and not the contents of each particular document, and the documents as such cannot be conveniently examined in court, evidence may be given, under this section, as to the general result of the documents by a person who has examined them and who is skilled in the examination of those documents, although they may be public within the meaning of Section 65 and Section 7439 . S TEPHEN in his Digest (7th Edn. p. 81, art. 71) has observed: "In the case of voluminous documents, accounts, records, etc., it is obvious that it would often be practically out of question to apply the present principle by requiring the production of the entire mass of documents and entries to be perused by the jury or read aloud to them. The convenience of trials demands that other evidence be allowed to be offered, in the shape of the testimony of a competent witness who has perused the entire mass and will state summarily the net result. Upon the same principle, summaries of official or corporate records might be presented; and testimony, by one who has examined records, that no record of a specific tenor is there contained, is receivable instead of producing the entire mass for perusal in the court-room." Secondary evidence may be given as to the general result of documents by any person who has examined them and who is skilled in the examination of such documents. The Allahabad High Court held that the competence of the witness must therefore be proved to the satisfaction of the court before such evidence is tendered. A summary of the result of an examination of account books by a person who knew the character in which they were written was held admissible under Cl. (g). 40 Where the originals consist of numerous accounts and the original books of account were eaten away and were in a tattered condition, no secondary evidence is admissible. 41

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Cl. (g) of Section 65 has nothing to do with documents which are not available to the court; the very fact that Cl. (g) provides for secondary evidence because the documents cannot conveniently be examined in court, shows that the documents are there for the court to examine if it so likes to do; but where no attempt is made to produce the original documents from which the result was prepared, Section 65(g) cannot be used for the admission of the summary. When original account books are available, copies thereof being secondary evidence are not admissible. 42 For attracting Cl. (g) it is necessary that the originals must consist of numerous documents. Where they were not numerous, evidence of a person who prepared the sales statement was held inadmissible as secondary evidence. 43 Secondary evidence cannot be given by a person who has not examined the documents. The expression "who is skilled in the examination of the documents" is intended to afford an opportunity to find out the truth by his cross-examination. 44 39 Sundar Kar v. Chandreshwar Prasad Narain, (1907) 34 Cal 293. 40 Phulwanti v. Janeshar Dass, AIR 1924 All 625. 41 Amrita Devi v. Sripat Rai, AIR 1962 All 111. 42 Jainarayan Das v. Jubeda Khatoon, AIR 1972 All 494. 43 Raigarh v. Chaturbhuj, AIR 1964 MP 196. 44 Krishna v. R., AIR 1946 All 277.

18. OBJECTION TO SECONDARY EVIDENCE If a copy of a document is admitted in evidence in the first court without any objection, no objection can be allowed to be taken in the appellate court as to its admissibility. 45 The question of proof of a document is a question of procedure and can be waived.

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But, a question of relevancy of document is a question of law, and can be raised at the appellate stage as well. 47 The object of the rule is obvious, if objection is taken in the first court, the party producing the copy can ask for an adjournment in order to get the original or else to give evidence justifying the admission of the secondary evidence. It is well settled that on objection to the admissibility of the document, which was received without objection at the court of first instance cannot be entertained in a court of appeal. If an objection had been taken in the trial court, it would have been possible for the opposite party to meet such objection, and the proceedings would have been regularised. 48 The objection that has to be taken in the court of first instance is to the mode of proof of the document, and it should be taken before a document is marked as an exhibit and admitted to the record. The objection regarding inherent admissibility can be taken at any time, even at the appellate stage, as it would be question of law. If the objection as to the proof is taken in the court of first instance, a strict formal proof might or might not have been possible. 49 Objection regarding the admissibility of secondary evidence of a document, being purely legal in nature, could be allowed to be raised for the first time in revision. 50 When a party has waived proof of the circumstances justifying the giving of secondary evidence and the secondary evidence is allowed, he cannot raise the objection to its admissibility, in appeal. 51 The rule, however, does not apply where the document admitted was not even secondary evidence.

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Order 13, Rule 4, CPC provides for every document admitted in evidence in the suit being endorsed by or on behalf of the Court, which endorsement signed or initialled by the judge amounts to admission of the document in evidence. An objection to the admissibility of the document should be raised before such endorsement is made and the Court is obliged to form its opinion on the question of admissibility and express the same on which opinion would depend the document being endorsed as admitted or not admitted in evidence. 53 The objections as to admissibility of documents in evidence may be classified into two classes: (i ) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii ) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as "an exhibit", an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken when the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The latter proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. 54 45 Kishori Lal Goswami v. Rakhal Das Banerjee, (1903) 31 Cal 155; Akbar Ali v. Bhyea Lal Jha, (1880) 6 Cal 666; Bacharam Mundul v. Peary Mohun Banerjee, (1883) 9 Cal 813; Narendra Narain Rai v. Bishen Chundra Das, (1885) 12 Cal 182; Chimnaji Govind Godbole v. Dinkar Dhondev Godbole, (1886) 11 Bom 320; Thet She v. Moung Ba, (1903) 3 LBR 49; Amar Singh v. Tej Ram, AIR 1982 P&H 282; Lakshman v. Amrit, (1900) 24 Bom 591; Ram Lochan v. Pandit Harinath, (1922) 1 Pat 606 : AIR 1922 Pat 565; Nitu Das v. State of Tripura, 2008 CrLJ 1434, 1436 (para 9) (Gau.) 46 Subbarao v. Venkata Rama Rao, AIR 1964 Andhra 53; Kanchanganga v. State of West Bengal, AIR 1973 Cal 325; Budhi Mahal v. Gangadhan Das (1978) 46 Cut. LT 287; Annapoorna Subnari v. Narendra, AIR 1967 Ori 129. 47 M.S. Ramsingh v. Bijoy Singh, AIR 1972 Cal 190. 48 Padman v. Hanwantha, AIR 1915 PC 111; Lachuman Lal Pathak v. Kamakshya Narayan Singh, AIR 1931 Pat 224; Shahzadi Begam v. Secy. of State, ILR 34 Cal 1059(PC) ; Mahadeo Prasad v. Ghulam Mohammad, AIR 1947 All 161; Kundan Bai v. Venu Bai, AIR 1952 Nag 47; Sayeruddin v. Samiruddin, AIR 1923 Cal 378; Gulabchand v. Sheo Karan Seth, 1964 Pat 45; Basanti v. Pholo, AIR 1955 HP 37; Basanta Kumar Das v. Binayak Das & ors, (1974) 40 Cut LT 1214; Kakoti Veeraiah Gupta v. Sonde Mall, ILR 1963 AP 754; Pramatha Nath v. Tarini Charan Das, AIR 1953 Assam 80; Bhudheram v. Hira, AIR 1953 HP 52; Hutchegowda v. Chennije Gowda, AIR 1953 Mys 49; relying on Vishvanath v. Rahibai, AIR 1931 Bom 105; Md. Itishan Ali v. Jamna Prasad, AIR 1922 PC 56; State of Rajasthan v. Jeo Raj, AIR 1990 Raj 90; Girdhar Lal v. Ritesh Mahajan, 2006 AIHC 91, 92 (para 6), relying on R.V.E. Venkatachala Gounder v. Arulmigu Viswesarasswami & V.P. Temple, AIR 2004 SC 4548; LRs of Late Shri Chittar Mal v. Addl. Civil Judge (S.D.), AIR 2004 NOC 426; Shail Kumari v. Saraswati Devi, 2002 AIHC 1973(Del) . 49 Gopal Das v. Shri Takurji, AIR 1943 PC 83; Bacharbhai v. Mohanlal Ranchhod Das, AIR 1956 Bom 196; Biswambhar Singh v. State of Orissa, AIR 1954 SC 139; Shahzadi Begum v. Secry. of State, ILR 34 Cal 1059(PC) . 50 Gurcharan Singh v. Harbhagwan, (1979) 81 Punj LR 409. 51 Bishwambar Singh v. State of Orissa, AIR 1954 SC 139; Subbarao v. Venkata Ramarao, AIR 1964 AP 53; Bachar Bhai Nara Bhai v. Mohanlal Ranchhoddas, AIR 1956 Bom 196; Collector of Cuttack v. Rajib Bhol, AIR 1972 Ori 200; Dula Dei v. Jadi Bewa, AIR 1965 Ori 113; Sangila Bapuji v. Ambabhai, AIR 1953 Nag 266. 52 Kalyan Singh v. Chhoti (Smt.), AIR 1973 Raj 263. 53 R.V.E. Venkatachala Gounder v. A.V. & V.P. Temple, (2003) 8 SCC 752 (para 19) : AIR 2003 SC 4548. See also Nitu Das v. State of Tripura, 2008 CrLJ 1434, 1436 (para 9 ) (Gau). 54 R.V.E. Venkatachala Gounder v. A.U.&V.P. Temple, (2003) 8 SCC 752 (para 20) : AIR 2003 SC 4548, following Padman v. Hanwanta, AIR 1915 PC 111 and P.C. Purushothama Reddiar v. S. Perumal, (1972) 1 SCC 9 : AIR 1972 SC 608. See also Dayamathi Bai v. K.M. Shaffi, (2004) 7 SCC 107, 110 (paras 13-15) : AIR 2004 SC 4082, relying on Gopal Das v. Thakurji, AIR 1943 PC 83; Ranvir Singh v. Union of India, AIR 2005 SC 3467, 3472 (para 26); A.P. State Civil Supplies Corporation Ltd. v. Simhadripuram Co-op. Marketing Society, AIR 2005 NOC (AP) : 2003 AIHC 3649. See also State v. K. Narasimhachary, (2005) 8 SCC 364, 367 (para 13); Haryana Urban Development Authority v. Satpal Gupta, AIR 2006 P&H 98 (para 2); Sudha Agrawal v. VII Additional District Judge, Ghaziabad, AIR 2006 (NOC) 1246(AII) : 2006 (4) ALJ 545; V. Subramaniyam v. T. Krishnan, AIR 2007 NOC 1547(Mad) .

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19. EXECUTION MUST BE PROVED It was held that mere production of a mortgage deed is not enough to fasten any liability on parties who are not executants of the document. The plaintiff would not be relieved of the burden of proving the document as required by law, to entitle him to a decree on the basis of the document. The proof can be dispensed with only where the execution is admitted, or has not been denied. Where the document is lost and secondary evidence is allowed to be led, the formality of an attesting witness being called has to be observed, as required by Section 68 of the Evidence Act, which is stringent and mandatory. Failure to call the attesting witness, where it is not established that all of the attesting witnesses are dead or were incapable of giving evidence, is a fatal defect and the document cannot be held to have been proved. 55 In case of proof of adoption by one B, a certified copy of a will executed by B's widow was put in evidence as it recited the factum of adoption. It was held that the copy of the will was not sufficient evidence of the fact of adoption recited in it; that the certified copy was secondary evidence under Section 65, of the existence, conditions or the contents of the deed, but not of its execution which has to be proved under Section 68 of the Evidence Act. 56 Merely because the document has been admitted as secondary evidence, it will not absolve the party from proving the fact that the original document was in existence and executed. 57 Where the existence of the Will was proved by the fact that the property in question was mutated in the name of the donee in pursuance of the Will, it was held to be unfair and unreasonable to conclude that no such document was ever executed and refusal to permit the production of the secondary evidence was improper. 58 55 Ananta Raghuram Arya v. Rajah B. Nagachaya Devamma, AIR 1958 AP 418. See also Gurdial Kaur v. Registrar, Co-operative Society, Chandigarh, AIR 2000 P&H 82 (para 9); Rekha Rana v. Ratnashree Jain, AIR 2006 MP 107, 115 [para 19(iii)]. 56 Brajraj Singh v. Yogendra Pal Singh, AIR 1952 MB 146. 57 Malkit Singh v. The Special Court, N.D.P.S., Sri Ganganagar, AIR 2006 Raj 81, 82-83 (para 4). 58 Prem Lata v. Kamala Devi, AIR 2007 (DOC) 19(P & H) : (2006-3) 144 PLR 150.

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CHAPTER V OF DOCUMENTARY EVIDENCE S. 65-A. Special provisions as to evidence relating to electronic record. The contents of electronic records may be proved in accordance with the provisions of Section 65-B.

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CHAPTER V OF DOCUMENTARY EVIDENCE S. 65-B. Admissibility of electronic records. 2)   Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible. 2)   The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely-1. the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer; 1. during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities; 1. throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and 1. the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities. 2)   Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in Clause (a ) of sub-section (2) was regularly performed by computers, whether-2. by a combination of computers operating over that period; or 2. by different computers operating in succession over that period; or 2. by different combinations of computers operating in succession over that period; or 2. in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers,

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all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly. 2)   In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,-3. identifying the electronic record containing the statement and describing the manner in which it was produced; 3. giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer; 3. dealing with any of the maters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it. 2)   For the purposes of this section,-4. information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment; 4. whether in the course of activities carried on by any official, information is supplied with a view to its being stored or processed for the purposes of those act ivities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those act ivities; 4. a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment. Explanation. --For the purposes of this section any reference to information being derived from other information shall be a reference to its being derived therefrom by calculation, comparison or any other process.] 1. THE INFORMATION TECHNOLOGY ACT , 2000 PROOF OF CONTENTS OF ELECTRONIC RECORDS

The new Section 65-A provides that the contents of electronic records may be proved in accordance with the provision of the new Section 65-B which provides for the mode of its proof. The facility of proof by secondary evidence would apply to any computer output as the same has been deemed to be a document for the purposes of proof. "In cases prior to the Police and Criminal Evidence Act, 1984, certain material produced by computers was held to be real evidence. In R. v. Wood, 60 the Court of Appeal considered computer printouts in circumstances in which they were not admissible under the Criminal Justice Act 1965. 61 It was necessary for the prosecution to present evidence of a comparison of the analysis of certain processed metals stolen with that of metals found in the defendant's possession. The Court held that since the computer had been used as a calculator, the print-outs were a piece of real evidence. In

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Castle v. Cross, 62 the prosecution sought to rely on a print-out of an automatic breath-testing device, which was a computer. The Divisional Court held that the print-out was admissible and that the operator of the device should have been permitted to give evidence of what he observed and to interpret the print-out." 63 "The law of evidence must be adapted to the realities of contemporary business practice. Mainframe computers, minicomputers and microcomputers play a pervasive role in our society. Often the only record of a transaction, which nobody can be expected to remember, will be in the memory of a computer. The versatility, power and frequency of use of computers will increase. If computer output cannot relatively readily be used as evidence in criminal cases, much crime (and notably offences involving dishonesty) will in practice be immune from prosecution. On the other hand, computers are not infallible. They do occasionally malfunction. Software systems often have "bugs". Unauthorised alteration of information stored on a computer is possible. The phenomenon of a "virus" attacking computers is also well established. Realistically, therefore, computers must be regarded as imperfect devices." 64 However, a document produced by a computer does not become the statement of a person initialling it if the purpose of doing so is merely to authorise the transaction rather than to confirm or authenticate its contents. 65 The Court has power to require oral evidence of anything of which evidence could be given by such a certificate. However, evidence by certificate is merely one option. The conditions of admissibility may be proved by oral evidence from a person familiar with the operation of the computer who can give evidence of its reliability and such a person need not be a computer expert or someone qualified to sign a certificate. 66 The Court is not entitled to rely on the maxim omnia praesumuntur rite esse acta . 67 The conditions of admissibility must be proved beyond reasonable doubt if the document is tendered by the prosecution, 68 but on the balance of probabilities if tendered by the defence. If the conditions of admissibility are in dispute, a trial within a trial may be required. 69 In the event of admission of the malfunctioning of either the ATM machine or the computer, the provision of Section 65-B of the Evidence Act cannot be pressed into service. In the instant case the Bank had alleged overwithdrawal of money from the S.B. Account through ATM by the customer owing to the malfunctioning of the ATM machine. 70 In estimating the weight, if any, to be attached to a statement "regard shall be had (a) to whether it provides information that was supplied contemporaneously to the computer, or recorded contemporaneously for the purpose of being so supplied; and (b) to whether anyone concerned with the supply of the information or the operation of the computer had an incentive to conceal or misrepresent the facts." 71 60 (1982) 76 Cr App R 23. 61 Later repealed. 62 (1984) 1 WLR 1372 DC. Cf . Garner v. DPP, (1989) Crim LR 583 DC, in which the Court does not appear to have considered the effect of the Police and Criminal Evidence Act, 1984, S. 69. 63 P HIPSON ON E VIDENCE , 15th Edn. (2000), page 697 (para 27-28). 64 R. v. Minors and Harper, (1989) 90 Cr App R 102, 103-104. 65 R. v. Boulkhrif, (1999) Crim LR 73 CA. 66 R. v. Shephard, (1993) 96 Cr App R 345 HL. Cf. Darby v. DPP, The Times, November 4, 1994, DC (police officer's evidence as to the working of a speed trap device). 67 R. v. Shephard, (1993) 96 Cr App R 345 HL, overruling, R. v. Spiby, (1990) 91 Cr App R 186, and R. v. Governor of Pentonville Prison, ex p. Osman, (1990) 90 Cr App R 281, 307 DC. 68 R. v. Minors and Harper, (1989) 90 Cr App R 102. 69 R. v. Minors and Harper, (1989) 90 Cr App R 102. 70 P. Padmanabh v. Syndicate Bank Ltd., AIR 2008 Kant 42, 46 (para 15).

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71 For detailed discussion, see P HIPSON ON E VIDENCE , 15th Edn. (2000), pages 696-701 (paras 27-28 to 2736).

2. VIDEO CONFERENCING There is no bar to examination of a witness by way of video conferencing, it being essential part of electronic method and such prayer cannot be ignored as unnecessary. If it appears that electronic video conferencing is not only much cheaper but also facilitates the Court and avoids delay of justice, a practical outlook is to be taken by the Court. In such circumstances, the Court may dispense with such attendance and issue a commission for examination of a witness. In allowing such prayer the Court will first of all consider whether linkage of such facility will be available between two places or not. In the instant case for maintenance under Sections 24 of Hindu Marriage Act (25 of 1955) in which High Court had given direction to decide the matter within two months after hearing afresh, an application was filed by husband for examining him by way of video conferencing since he was permanently residing in America. It was held that it could not be rejected merely on the ground that the High Court had granted two months time for the disposal of matter. 72 As to the need and importance of the technological developments to be adopted in the procedural law, the Apex Court 73 observed as under : If the law Courts do not permit technology development in the Court proceedings, it would be lagging behind compared to other sectors. Technology is definitely a tool.

However, the Court 74 fixed the following safeguards to be taken for the purpose of recording evidence through Audio-Video Link. (1) Before action of the witness under Audio-Video Link starts, the witness will have to file an affidavit or an undertaking duly verified before a Judge or a Magistrate or a Notary that the person who is shown as the witness is the same person as who is going to depose on the screen with a copy of such identification affidavit to the other side. (2) The person who wishes to examine the witness on the screen will also file an affidavit or an undertaking in the similar manner before examining the witness with a copy of the other side with regard to identification before hand. (3) As soon as identification part is complete, oath will be administered through the media as per the Oaths Act , 1969 of India. (4) The witness will be examined during working hours of Indian Courts. Plea of any inconvenience on account of time difference between India and other country will not be allowed. (5) The witness action, as far as practicable, be proceeded without any interruption without granting unnecessary adjournments. However, discretion of the Court or the Commissioner will be respected. (6) Witness includes parties to the proceedings. (7) In case of non-party witness, a set of plaint, written statement and/or other papers relating to proceeding and disclosed documents should be sent to the witness for his acquaintance and an acknowledgment in this regard will be filed before the Court. (8) Court or Commissioner must record any remark as is material regarding the demur of the witness while on the screen and shall note the objections raised during recording of witness either manually or mechanically. (9) Depositions of the witness either in the question answer form or in the narrative form will have to sign as early as possible before a Magistrate or Notary Public and thereafter it will form part of the record of the proceedings. (10) Mode of digital signature, if can be adopted in this process, such signature will be obtained immediately after days's deposition. (11) The visual is to be recorded at both the ends. The witness alone can be present at the time of video conference, Magistrate and Notary is to certify to this effect. (12) In case of perjury Court will be able to take cognizance not only about the witness who gave evidence but who induced to give such evidence. (13) The expenses and the arrangements are to be borne by the applicant who wants this facility. (14) Court is empowered to put conditions necessary for the purpose. Examination of witnesses in criminal cases, through video conferencing has been approved by the Supreme Court. 75 When such is the facility accorded in criminal cases, there should not be any plausible objection for adopting the same procedure, in civil cases as long as the necessary facilities

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with assured accuracy exist. However, necessary precautions must be taken both as to the identity of the witnesses and accuracy of the equipment used for the purpose. 76 72 Amitabh Bagchi v. Ena Bagchi, AIR 2005 Cal 11, 13, 15 (paras 8 and 13). 73 Amitabh Bagchi v. Ena Bagchi, AIR 2005 Cal 11 (para 10). 74 Amitabh Bagchi v. Ena Bagchi, AIR 2005 Cal 11 (para 10). 75 State of Maharashtra v. Dr. Praful B.Desai, AIR 2003 SC 2053 : 2003 (2) ALT (Crl) 118 (SC). 76 Bodala Murali Krishna v. Bodala Prathima, AIR 2007 AP 43 (para 7). See also Twentieth Century Fox Film Corporation v. NRI Film Production Association (P.) Ltd, AIR 2003 Kant 148 and Amitabh Bagchi v. Ena Bagchi, AIR 2005 Cal. 11.

3. VIDEO RECORDINGS OF TELEVISION TELECASTS Video recording of television telecasts showed the conduct of the Members of Parliament concerned revealing aspects relevant to determination of their disqualification under the Schedule X of the Constitution. The recordings were certified by the television channels by their, authorised representatives as regards their content, place of recording, authenticity of the copies of the recordings handed over to the complainant, etc. The Speaker of the Lok Sabha gave the members concerned opportunity to view the recordings and point out the doctoring if any or question their genuineness but they declined. Hence the Speaker relied on the recordings. The Supreme Court held that he was right in doing so in the circumstances of the case. 77 Once it is established that a person is not in a position to come to the Court or travel to India, recording of evidence by video conferencing should be permitted in the interest of justice for a speedy trial, as in the instant case. 78 77 Jagjit Singh v. State of Haryana, (2006) 11 SCC 1. See also Amulya Kumar Panda v. State of Orissa, 2008 CrLJ 1676, 1678 (para 7) (Ori). 78 S. Sarkar (Dr.) v. C. Sagunthala Devi, (2009) 1 MLJ 872, 874 (para 14).

4. TAPE-RECORDED EVIDENCE The tape-recorded evidence is admissible. However, where the plea as to the availability of such evidence with the party at the time of trial of the case was not put forth before the trial court nor was the same deposed to in oral evidence, the same cannot be admitted at the appellate stage. 79 Where the tape recorder was neither produced immediately before the court nor was sealed as per requirement of law and the transcription of the tape recorded conversation was also not produced, it was not taken in evidence. 80 79 M. Kumarasamy v. V.Sivaraj Karthikeyan, AIR 2008 (NOC) 180(Mad) . 80 Lalji Bansanarayan Choubey v. Jiyalal Chavan, AIR 2009 (NOC) 1230(Bom) .

5. AUDIO CD During matrimonial proceedings for dissolution of marriage, the wife allegedly abused and threatened the respondent/husband on his cell phone which was recorded in it. The husband re-recorded the matter in audio CD and sought to exhibit the same without producing the cell phone. The wife raised an objection as to the CD being fabricated and hence inadmissible. The Court allowed the CD to be marked as an exhibit with condition that, when the CD would be displayed, an opportunity would be given to the petitioner/wife for cross-examination. 81 In another case, the trial court allowed the defence to put forward a CD containing interview of the victim of kidnapping on a local TV Channel

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and for watching the same on CD player in the Court while the cross-examination of the victim was going on, which the Gujarat High Court held to be illegal. It was held to be moreso when the trial court had failed to consider the fact that the CD had not been prepared and preserved safely by an independent authority like the police but had been produced by the accused. 82 81 G. Shyamala Ranjini v. M.S. Tamizhnathan, AIR 2008 (NOC) 476(Mad) . 82 State of Gujarat v. Shailendra Kamalkishore Pande, 2008 CrLJ 953.

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CHAPTER V OF DOCUMENTARY EVIDENCE S. 66. Rules as to notice to produce. Secondary evidence of the contents of the documents referred to in Section 65, clause (a ), shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, or to his attorney or pleader, such notice to produce it as is prescribed by law; and if no notice is prescribed by law, then such notice as the Court considers reasonable under the circumstances of the case: Provided that such notice shall not be required in order to render secondary evidence admissible in any of the following cases, or in any other case in which the Court thinks fit to dispense with it:-3)   when the document to be proved is itself a notice; 3)   when, from the nature of the case, the adverse party must know that he will be required to produce it; 3)   when it appears or is proved that the adverse party has obtained possession of the original by fraud or force; 3)   when the adverse party or his agent has the original in Court; 3)   when the adverse party or his agent has admitted the loss of the document; 1)   when the person in possession of the document is out of reach of, or not subject to, the process of the Court. 1. GENERAL PRINCIPLE

This section lays down that a notice must be given before secondary evidence can be received under Section 65(a). Notice to produce a document must be in writing. Order XI, Rule 15, of the Civil Procedure Code, prescribes the kind of notice to produce a document. Notice under this section has to be given to the party in whose possession or power the document is. The word 'party' means not only the adversary but also a stranger 'legally bound to produce' the document. The procedure for the production of documents in criminal cases is laid down in Sections 93- 96of the Criminal Procedure Code. While Section 65(a) refers to secondary evidence of the existence, condition or contents of a document this section refers only to 'contents' and not the existence or condition of the document. The object of this rule is to give the party an opportunity to enable him to produce the document and thus to secure the best evidence of its contents. 83

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In order that secondary evidence of documents mentioned in Section 65(a) may be given, it is essential that the procedure laid down in Section 66 should be strictly complied with. When no notice, as required by Section 66, has been given, secondary evidence is not admissible. 84 Before secondary evidence of the existence, condition or contents of a document is admitted, it must be proved that the document is in the possession of the person against whom it is sought to be proved and that, though such person was issued with notice, he had failed to produce it. 85 Where a party sought to prove, by production of the registers of the sub-registrar's office, not by any original entry prepared by the sub-registrar himself but copies of the document, the originals of which were in the custody of the persons in whose favour they were executed, it was held that such documents cannot be admitted in evidence by simply producing the registers of the Registration Office without calling for the original documents from the persons concerned. 86 Where an original unregistered sale deed is in the possession of the plaintiff and is available, no secondary evidence can be admitted unless notice under Section 66 to. Where an objection is taken for adducing secondary evidence, on the ground of non-service of notice, the trial court has to consider whether a notice should be given or be dispensed with; if the objection is not raised in the trial court, it should not be permitted to be raised in the Appellate Court. 87 Where the insurer did not give notice to the owner to produce the original policy of insurance, and also did not take any step contemplated under the Civil Procedure Code for its production, and the insurer then tendered the copy of the insurance policy at a late stage of the proceedings, it was held that it was not admissible. 88 Where the petitioners filed an application seeking entries in the station diary in respect of a complaint about voluntarily causing hurt to be produced for the purpose of pointing out contradiction in the statements of the complainant without any intention to bring an additional evidence at the appellate stage, it was held that the order rejecting the said application was liable to be set aside. 89 83 Dwyer v. Collins, 7 Ex 639-647; Surendra Krishna Roy v. Mirza Md. Syed Ali, AIR 1936 PC 15 : 63 IA 85, 92. 84 Nityananda Roy v. Rashbehari Roy, AIR 1953 Cal 456; Nami Devi (Smt.) v. Anupurna Devi, AIR 1945 Pat 218; Sulochana Devi (Smt.) v. Gobinda Chandra Nag, AIR 1986 Cal 430; Kanhiyalal v. Jamnalal, AIR 1950 Raj 47; Narsidas v. Ravishankar, AIR 1931 Bom 33; Subbarayulu Naidu v. Vengama Naidu, AIR 1930 Mad 742. 85 Venkatarama Reddiar v. Vardaraja Kounder, AIR 1971 Mad 471; Bishwanath v. Dhapu Debi, AIR 1960 Cal 494; Sudakar Mishra v. Nilkantha Das, AIR 1936 Pat 129; British Transport Co. v. Suraj Bhan, AIR 1963 All 313; D. Sarasu v. Jayalakshmi, 2001 AIHC 2484 (para 11) (Mad). 86 Naresh Chandra Bose v. State of West Bengal, AIR 1955 Cal 398. 87 Kundanbai v. Venubai, AIR 1952 Nag 47; Radha v. Laxmi, 1957 Raj LW 603; Kishorilal v. Rakhal Das, (1903) 31 Cal 155; Prakasaraynam v. Venkatrao, ILR 38 Mad 160; U Po Kin v. U So Gale, AIR 1936 Rang 277. 88 Oriental Fire and General Insurance Co. Ltd. v. Chandrawali Smt., AIR 1989 R&H 300. 89 Nayeemuddin Mian v. State of Jharkhand, 2007 CrLJ 676, 678 (paras 8-10) (Jhar).

2. NOTICE PRESCRIBED BY LAW Where a Pardanashin woman is living with her brother, service of notice on the brother constitutes notice as required by this section. 90 In the case of Pardanashin Ladies, normally their husbands would appear to produce the documents summoned from their wives as they would naturally be in possession of the documents. So, they can also prove the documents which were executed in favour of their wives, even if the wives are not benamidars of the husbands. So service of notice on them cannot be a ground to reject the husband's evidence to prove the documents. 91 Issuing of notice to produce some documents not referred to in the opposite party's affidavit of documents as being in his possession, was held not a good notice. 92

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A photostat copy of the minutes of the panchayat was secondary evidence and a notice under Section 66 of the Act was required to be given to the other party, purporting to produce the original document, in whose possession the original was available. 93 An application for permission to produce secondary evidence without mentioning in whose possession the document in question was and without issuing notice to the person from whom the document was to be summoned, was held to be premature. 94 Section 175 of the punishes the person who omits to produce a document required by a public servant. 90 Durgawati Kunwar v. Jagannath Prasad, AIR 1929 All 680. 91 Suchandra Bhushan Kumar Lal v. Laloo Modi, AIR 1941 Pat 202; relying on Hiralal v. Ganesh Prasad, ILR 4 All 406 (PC). 92 Narsidas v. Ravishankar, AIR 1931 Bom 33. 93 Hemant Kumar Agrahari v. Lakshmi Devi, AIR 2004 All 126, 131 (para 23) : 2004 AIHC 1845 : 2004 All LJ 972 : (2003) 52 All LR 166 : 2004 (17) Ind LD 156. 94 K. Krishna Appala Naidu v. B. Sohanlal, AIR 2004 AP 439, 441 (para 11 & 12) : 2004 (2) Andh WR 125 : 2004 (4) Andh LD 347 : 2004 (21) Ind LD 239.

3. WHEN NOTICE SHALL NOT BE REQUIRED [PROVISOS] The proviso enumerates the following six cases in which a notice is not required to be given to the party in whose possession or power the document is, in order to render secondary evidence admissible. (a) When Notice itself is to be proved [Proviso (1)] Notice shall not be required to be given (under this section) when the document to be proved is itself a notice. When a party sends a notice to the opposite party and it is received by him, a copy of the notice is admissible, and it is not obligatory to issue notice calling upon the opposite party to produce the original notice. P HIPSON on Evidence (15th Edn. (2000), para 41-31, page 1120) observes: "Notice to produce the original is not necessary: 2a)   ....... 2b)   When the document to be proved is itself a notice which has been served on the adversary; though not on a third, e.g. a notice to produce or to quit, or of action, or of the dishonour of a bill, when the act ion is brought upon the bill, or of intention to remove a building, pursuant to a by-law under the Public Health Act, 1875 (now the Highways Act, 1980)". 95 In a suit against the Union of India, a copy of the notice under Section 80 , CPC , was sought to be produced by the plaintiff, but it was objected to on behalf of the defendant on the ground that a copy was not admissible. It was held that Section 65, read with Section 66 of the Evidence Act, permits the plaintiff to produce the copy of the notice without summoning the original; it was for the defendant to show, by production of the original, that the document did not amount to a notice according to Section 80 , CPC . Where the defendant failed to produce the original, he could not have any grievance when its copy was produced by the plaintiff. 1 (b) The adverse party must know that he will be required to produce it [Proviso (2)] According to this, when, from the nature of the case, the adverse party must know that he will be required to produce a document, notice shall not be required for tendering secondary evidence.

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When it is clear that the original is in the possession or control of the party taking an objection to the admissibility of secondary evidence, and he has failed to produce it, sub. Cl. (2) of Proviso to Section 66 applies, as the adverse party knows that he would be required to produce it. When he fails to produce it, secondary evidence is admissible, without giving notice. 2 However, it was held that Sections 65 and Section 66 must be read together, and the court ought not to hold that the adverse party must have known that he would be required to produce it so as to dispense with the necessity of a notice to produce, unless the original is shown or appears to be in the possession of the person against whom the presumption is drawn. 3 In a suit for declaration that the subject matter of the suit is trust property, plaintiff stated that he had seen the original deed of the trust in the possession of the defendant; and then produced a certified copy of the trust deed. It was held that the defendant must have known that he would be required to produce the document, that proviso (2) to Section 66 was satisfied and so the production of the certified copy was sufficient proof of the deed itself. 4 Where the plaintiff stated that the original deed relating to the suit house, was with the defendant who did not deny the statement, it was held that it would be a proper case to dispense with the notice, and the certified copy was admissible. 5 Where a defendant denied any knowledge of the execution of Wakfnama by her late husband, but said in her evidence that she might be in possession of the document, but she was not sure of it, it was held that notice was not necessary as there was implied knowledge of the existence of the document and that she was required to produce it. 6 Where a driver and conductor were prosecuted under the Motor Vehicles Act for committing breach of the conditions of the registration certificate, it was held that they must be deemed to have known that they would be required to produce the certificate and the permit; and that if they failed to produce them, the prosecution was entitled to produce secondary evidence. 7 In a suit for redemption of mortgaged property, the defendants who are in possession of the mortgage deed must have known that they would be required to produce it in the suit; accordingly, secondary evidence, without noticed to them for its production, was held admissible. 8 Where the plaintiff mentioned in the plaint itself about a certain document and the defendants denied its existence, it was held notice was not necessary and copy of that document was admissible. 9 Where the defendant deposed that the original deed of a family settlement was not with the plaintiff, but was with a third party who was dead, it was held that, to admit secondary evidence, no notice to the plaintiff was required. 10 Sometimes, from the pleadings, implied notice to the adverse party showing that he will be required to produce the document can be gathered. (c) Adverse party obtaining possession of original by fraud or force [Proviso (3)] Where the application, alleging force or fraud committed by the opposite party, to obtain the possession of the original document, was neither pleaded in the plaint nor proved, the plaintiff was not entitled to exemption from giving him notice. 11 (d) Person in possession out of reach or out of jurisdiction of Court [Proviso (6)] In Haranand v. Ramgopal, 12 it was held that secondary evidence may be given of the judicial proceedings of a foreign State without notice to the adverse party, when the person in possession of the document is out of reach of or is not subject to the process of the court. The provision as to notice under Section 65 is qualified by Cl. (6) of Section 65, which dispenses with notice when the person in possession of the document is out of reach and not subject to the process of the court. 13 Secondary evidence of the contents of the document was held admissible when the defendant was out of the jurisdiction of the court, and did not comply with the summons to produce the document and when the service of notice upon his pleader at the last moment would have been nugatory. 14 It must be shown to the court, to its satisfaction, that the person who is in possession of the document is out of reach and is not subject to the process of the court. It was held that, when the original award was in possession of the person who was not subject to the process of the court, a copy of the original was admissible. 15 95 See also In re : Sundaresa, AIR 1950 Mad 657.

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1 Lockchand v. Union of India, AIR 1959 Raj 231. 2 Sudhakar v. Nilkantha Das, AIR 1936 Pat 129; Kundanbai v. Venubai, AIR 1952 Nag 47; Raghunath Misra v. Kishore Chandra Deo, AIR 1958 Ori 260; Amir Bi v. Nilasandra Mosque, 1969 Mys 103; Rajeshwari v. Varalakshmamma, AIR 1964 AP 284; British Transport Co. v. Suraj Ban, AIR 1963 All 313 (a case of written agreement). 3 Mangra v. Bedi Ram, AIR 1916 All 221. 4 Lakshmi Kanto Roy v. Nishi Kanto Roy, 71 Cal WN 362. 5 Vishwanath Vithoba v. Genu Kisan, AIR 1956 Bom 555. 6 Amirbi v. Nilasandra Mosque, AIR 1969 Mys. 103. 7 Jagroop v. R., AIR 1952 All 276. 8 Dwaraka Singh v. Ramnand Upadhyay, AIR 1919 All 232; Dinanath v. Rama Rai, AIR 1926 Pat 512; Mirabai v. Jai Singh, AIR 1971 Raj 303; see contra: Maung PO Ni v. Ma Shwe Kyi, AIR 1925 Rang 7. 9 Chandrasekhar Pati v. Ahalya Devi, AIR 1974 Ori 199. 10 Abdul Rahman v. Rameshwar Prasad, AIR 1977 All 470. 11 Ram Singh Sahu v. Ram Dayal, 2000 AIHC 3900 (paras 10-12) (MP). 12 ILR 27 Cal 639 (PC). 13 Ralli v. Gau Kim Swee, (1883) 9 Cal 939. 14 Bishop Mellus v. Vicar Apostolic of Malabar, (1879) 2 Mad 295. 15 Sanjihil Lal Braj Kishore v. Parsan Koer, AIR 1917 Pat 241.

4. ANY OTHER CASE THE COURT THINKS FIT TO DISPENSE WITH NOTICE Apart from the provisions of clause s 1 to 6 of Section 66, there is also a general provision in the proviso stating that in any other case notice can be dispensed with, when the court thinks fit. In Surendra Krishna v. Mirja Md. Syed Ali, 16 it was held that court has absolute power under Section 66 to dispense with notice when it thinks fit. 17 Notice to produce the document can be dispensed with where the defendant denies the existence of the document itself. When, in the previous litigation, it was held that the document in question was in the possession of the plaintiff's father, it was held that there was no reason to suppose it was in the possession of the defendant, in the present suit; thus a notice to produce was a mere formality. 18 A technical defect in the service of notice can be condoned, in the absence of any prejudice to any of the accused persons, resulting in clear mis-carriage of justice. 19 The Calcutta High Court has held that oral evidence of the contents of a letter which had neither been called for, nor produced, was inadmissible under this section, though no objection was taken to the giving of that evidence, and that no subsequent order dispensing with notice could operate to make it admissible. There is no law in this country that the absence of objection to the evidence which is legally admissible makes it admissible. 20 However, where the copies of registered documents, without issue of notice to the opposite party, were admitted and marked as exhibits in the case, without any objection being raised, it was held that it was not open to the party against whom they were admitted, to raise any objection that proper procedure had not been followed or proper foundation was not laid for admission of such secondary evidence. 21 16 1936 PC 15 : 63 IA 85, 92.

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17 See also Habiram v. Hemnath Sharma, 19 Cal WN 1068 : AIR 1916 Cal 676; U Po Kin v. U So Gale, AIR 1936 Rang 277; Kundan Bai v. Venu Bai, AIR 1952 Nag 47. 18 Gopal Das v. Thakurji, AIR 1943 PC 83; see also Mira Bai v. Jai Singh, AIR 1971 Raj 303; Dinanath Rai v. Rama Rai, AIR 1926 Pat 512; Achhru Ram v. Emperor, AIR 1926 Lah 326. 19 Jithendra Nath Gupta v. Emperor, AIR 1937 Cal 99; Prafulla Kumar v. Emperor, AIR 1930 Cal 209. 20 Prafulla Kumar v. Emperor, AIR 1930 Cal 209. 21 Collector of Cuttack v. Rajib Bhol, AIR 1972 Ori 200.

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Ratanlal & Dhirajlal: Law of Evidence, Updated 23rd Edition/THE INDIAN EVIDENCE ACT (ACT 1 OF 1872)/PART II ON PROOF/CHAPTER V OF DOCUMENTARY EVIDENCE/S. 67.

CHAPTER V OF DOCUMENTARY EVIDENCE S. 67. Proof of signature and handwriting of person alleged to have signed or written document produced. If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting. 1. PRINCIPLE

Besides the question which arises as to the contents of a document (see Ss. 61-66), there is always the question when the document is used in evidence;--Is it what it purports to be? The evidence upon this point is dealt with in Ss. 67-73. The nature of the evidence will depend to a large extent on the nature of the document. If it is a mere memorandum, such as an entry in a diary mentioned in S. 32(b ), it must be proved that the diary was really that of the person whose statements it is said to contain. If it is a letter, it must be shown who wrote it, or at any rate who signed it, for a signature to a document turns the whole document into a statement by the person who signs it. If it is an agreement it must be shown who executed it. 22 In Venkatachala v. Thimmajamma , 23 it was observed at p. 517: Under Section 67, if a document is alleged to be signed be any person, the signature of the said person must be proved to be in his handwriting and, for proving such a handwriting under Sections 45 and 47 of the Act, the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a Court of law". The normal methods of proof of signatures and handwriting are:-4)   By calling the person who signed or wrote the document. 4)   By calling the person in whose presence the document was signed and written. 2)   By calling an expert. 2)   By calling the person who is acquainted with the handwriting of the persons by whom the document was purported to be signed or written. 2)   By the admission of the person who was alleged to have signed or written. 1)   By comparison, of the signature on the document with the admitted or proved signature of the person who purported to have signed or written the document. 1)   By other circumstantial evidence. 24 The definition of the word "proved" in Section 3 must be read along with this section. According to Section 3 there must be specific evidence that the signature purporting to be that of the executant, is in the handwriting of the executant; until that is proved, the court cannot consider whether execution is

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proved. In other words, Section 67 makes proof of execution of a document something different from mere proof of the matter. 25 22 Markby 60. 23 1959 SCJ 507 : AIR 1959 SC 443. Also see Gulzar Ali v. State of H.P., (1998) 2 SCC 192 : 1998 SCC 605(Cri) . 24 Kangabam Birasingh v. Manipur Drivers Union Co-operative Association, AIR 1957 Manipur 9. See also Commentary under Sections 45, 47 and 73. 25 Salaik Chand v. Tamiz Bano, AIR 1928 All 303.

2. PROOF OF HANDWRITING IN PROOF OF EXECUTION Section 67 refers to documents other than documents required by law to be attested. 26 Section 67 of the Evidence Act mandates that the signature and handwriting of a person on a written document can be proved only by examining the person concerned. When the person is very much available or alive, attempt to prove his signature or handwriting, by examining a third person, would have its own draw back. An adverse inference, as provided under Section 114 (g) of the Evidence Act would come into play. 27 Mere production of the paper stating that it was signed by him would not amount to compliance with Section 67. 28 Where merely the signature of a person on a typewritten document was identified by a witness, it was held that what was formally proved was the signature and not the body of the document. 29 Appellate court is entitled to weigh the evidence, to give a finding on the execution of a document by a particular person. 30 A Sub-Divisional Officer stated that a complaint was handed over and it did not bear any signature, but two persons came and gave it to him. One of them deposed that there were two other persons of the same name as his. It was held that the statement of the Sub-Divisional Officer only proved that the writer of it handed over the complaint, that neither the contents of the complaint were proved nor the maker of the complaint proved it and hence the complaint was not proved. 31 A party seeking to prove the execution of a document is not required to prove that the executant knew the contents thereof, when the executant denies having signed it and pleads it as forgery. But, if the executant pleads ignorance, then in certain circumstances it may be necessary to satisfy the court that the executant had knowledge of the contents. 32 It was held that, in order to prove the writing of a person, it is not necessary that the person must know the language in which the document has been written; if he has deposed that the execution has been made in his presence and he had seen the executant putting his signature in his presence, the document stands proved; on the same reasoning, even if a person is an illiterate but he has seen somebody putting his signature on the document in his presence, he must be said to have proved the document. 33 An illiterate person not being able to identify a document on which he has seen someone writing, cannot ordinarily prove a writing or signature made, but another person knowing the language in which the document was written can identify the document with certainty and he can prove the writing. 34

Where a pronote was written in Hindi and signed by the executant, and the witnesses testified to its signing by the executants in their presence, execution of the document was held proved. 35 In divorce cases, marriage certificates and other correspondence must be proved as required under Section 67. 36 Where the plaintiff stated that he obtained the horoscope in question from his father, but did not state the name of the astrologer and whether he was familiar with the writings of the said astrologer, it was held that the document could not be admitted in evidence for proving the date of birth. 37 Where a suit was filed for refund of price paid under a sale deed and also for damages, alleging breach of warranty

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of title, and the vendor was not examined, it was held that the sale deed could not be said to have been proved. 38 The sanction for prosecution cannot be termed as proved unless proved as per Ss. 47 and 67. Mere statement that the sanction was given by the authorised person without any evidence as to acquaintance with the signature and contents thereof, the document as such could not be said to be proved. 39 Where an agreement of sale, bearing the vendors' signatures on the first two sheets, was found to be validly executed, it was held that no inference could be drawn that the agreement was proved, when the third sheet did not bear their signatures. 40 This section does not prescribe any particular mode of proof. So, in addition to the modes of proof of handwriting, it may also be proved by circumstantial evidence, the only requirement being that the proof should be given to the satisfaction of the court, either by direct or by circumstantial evidence. 41 Section 67 does not lay down any specific mode of proof and therefore circumstantial evidence as a mode of proof of authorship or execution of documents is not excluded. Such evidence may consist of internal evidence contained in the document itself. Oral evidence of witnesses can prove other surrounding circumstances. 42 The execution or authorship of a document is a question of fact and may be proved like any other fact, by direct as well as circumstantial evidence, although the circumstantial evidence must be of sufficient strength to carry conviction. Circumstantial evidence may be (1) Internal evidence contained in the document; (2) oral evidence of witnesses to prove other circumstances. 43 When both parties admitted the transactions in certain consignment notes, it was held that, though those documents were not proved according to Section 67, the doctrine of authentication by contents would come into play, and the notes were proved by internal evidence afforded by their contents which were found to be correct on evidence aliunde. 44 The Evidence Act under Section 67, mandates that any document can be said to have been proved, only when the party to it deposes orally. Even though the execution of the document is admitted by the defendant, the plaintiff has to introduce the document through a witness unless the parties agree for certain documents to be taken on record with consent. 45 Where the execution of the sale deed had been proved by the respective witnesses by giving clear and unambiguous evidence, the appellant must have taken steps by any mode of proving his signature under the law of evidence in terms of Sections 67 of Indian Evidence Act . 46 In absence of proof of signatures and handwriting on the document, mere production of certified copy from the registering authority thereof would not be inferred that the dissolution deed was executed by the parties. 47 Where the executor of adoption deed was not alive at the time of trial and the advocate who was supposed to have explained the contents of the said deed to the lady fully and that she had signed the same after she had understood the said contents therein, was not examined, in absence of any independent evidence the document was held to be not proved as mere proof of thumb impression of the executor or mere registration of the document would not constitute the proof of the contents of the document. 48 Where the accused of a case under Section 138 of Negotiable Instrument Act had denied his signature on the bill against which a cheque was issued by him and the accused belatedly moved an application for seeking opinion of Handwriting Expert about signature on the said bill, it was held that the document had no relevancy to decide the case of dishonour of cheque hence opinion expert would not be required. 49 The section deals with proof of the signature of the person who is alleged to have executed the document. It does not deal with the signatures of attestors in whose presence the document is signed. 50

The definition of "proved" given under Section 3 of the Evidence Act must be read along with Section 67 which requires that there must be specific evidence that the signature purporting to be that of the executant is in the handwriting of the executant. Until this is proved the court cannot proceed to consider whether execution is proved. In other words Section 67 makes proof of execution of a document something more difficult than proof of matter other than execution of a document. 51 26 Bank of India v. Allibhoy Mohammed, AIR 2008 Bom 81, 86 (para 34).

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27 Muddasani Sarojana v. Muddasani Venkat Narsaiah, AIR 2007 AP 50, 53 (para 18). 28 Umesh Bondre v. Wilfred Fernandes, AIR 2007 Bom 29, 32 (para 7). 29 In the matter of Mr. D. & Mr. S., (1966) 68 Bom LR 228; but see contra the view expressed by V IMADALAL J., in Bhima Tima v. Pioneer Chemicals, (1968) 70 Bom LR 683. Madholal v. Asian Assu Co. Ltd., AIR 1954 Bom 305. 30 Bhaiyalal v. Ram Din, AIR 1989 All 130. 31 Ram Singh v. Col. Ram Singh, AIR 1986 SC 3. 32 Dattatreya v. Ranganath, AIR 1971 SC 2548; relied in Joginder Singh v. Baljit Singh, AIR 2009 (NOC) 1577(P&H) . 33 Gajraj v. Board of Revenue U.P., 1966 All LJ 149, relying on Bheek Chand v. Parbhuji, AIR 1963 Raj 84; Puria Sethi v. Khetraonohan Mohaty; (1975) 41 Cut LT 1272; Bhanuwar Lal v. Ahmed Khan, AIR 1977 Gau 27. 34 Bheek Chand v. Parbhuji, AIR 1963 Raj 84. 35 Babban v. Shiv Nath, AIR 1986 All 185. 36 Chandra Leela v. P. Victor Matheus, AIR 1956 Hyd. 144(FB) . 37 Union of India v. Lachman, (1976) 2 Cal 328. 38 (1976) 89 MLW 405. 39 State of M.P. v. Param, 1997 AIHC 4150 (paras 3-5) Vol. 6 (MP), relying on Sait Tarajee Khimchand v. Yelamarti Satyam, AIR 1971 SC 1865 and Suresh H. Rajput v. Bhartiben Pravinbhai Soni, 1996 CrLJ 1921 : AIR 1996 SC 2883. 40 Har Kaur (Smt.) v. Gura S., AIR 1988 P&H 41. 41 Karali v. EIRy. Co., 1928 Cal 498; Anima Das Sharma v. Rev. Dr. Lawrance Trevor, (1976) 80 CWN 788; Bank of India v. Allibhoy Mohammed, AIR 2008 Bom 81, 86 (para 35). See also Parappa v. Bhimappa, 2008 AIHC 2777, 2784 (para 32) (Kant). 42 Govind Ram v. Abdul Wahab, AIR 1963 Raj 234; Bank of India v. Allibhoy Mohammed, AIR 2008 Bom 81, 86 (para 35). 43 Krishna Biharilal v. State, AIR 1956 MB 86; Govardhan Das v. Ahmadi Begam, AIR 1953 Hyd. 181. 44 Snow White F. Product Pvt. Ltd. v. Sonanlal, AIR 1964 Cal 209 relying on Mobarik Ali Ahmed v. State of Bombay, AIR 1957 SC 857. 45 Kota Sreevalli v. Chinni Setharamaiah, AIR 2005 AP 521, 523 (para 10). 46 Paokhothang Haokip v. Dozakhup Paite, AIR 2002 Gau 44. 47 K.K. Thankappan v. K.S. Jayan, AIR 2003 Ker 114, 132 (para 49). 48 Laxmibai v. Bhagmanthburva, 2003 AIHC 85, 105 (paras 80 & 81) (Bom). 49 Darshan Lal v. Arjun Singh, 2004 CrLJ 1723, 1724 (para 4) (P&H) : 2004 (3) All CrLR 834 : 2004 (3) Land LR 362 : 2004 (3) Rec CrR 357. 50 Hasan Abdulla v. State of Gujarat, AIR 1962 Guj 214. 51 Bank of India v. Allibhoy Mohammed, AIR 2008 Bom 81, 86-87 (para 36).

3. EXECUTION OF DOCUMENT--MEANING Execution means signing, sealing and delivery of a document. The term may be defined as a formal completion of a deed. It is the last act or series of acts which completes it. 52 Execution of a document is something different from mere signing of the document. The term execution is not defined. J USTICE R ANKIN observed: "The ordinary meaning of 'executant' is fairly

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clear....the ordinary meaning of executing a document is signing a document as a consenting party thereto... The man whose name has been put to the document as evidencing his assent thereto is the executant for the purpose of the section ( Sections 35Registration Act )... In the case ofBakalam (by the pen) Signature, such as we have here, a person whose name is put with his authority in evidence of his assent to a document, is 'executant' within the meaning of Section 35". 53 While this decision was affirmed by the Privy Council it was observed: "A document is executed when those who take benefits and obligations under it have put or caused to put their names to it. Personal signature is not required." 54 In English Law, 'execution' is known as "signing, sealing and delivering". The ordinary meaning of executing a document is signing it as a consenting party thereto. 55 "Execution" means something more than mere signing. It includes delivery and signing in the presence of witnesses where they are necessary. 56 Execution of the document means that the executant must have signed or put his thumb mark/impression, only after the contents of the document have been fully stated and read by the executant before he put his signature thereon. Mere admission of the initial by the executant would not be tantamount to an admission of execution of the document. 57 Execution is, when applied to a document, the last act or series of act s, which complete it. It might be defined as formal completion. Thus, execution of deeds is the signing, sealing and delivering of them in the presence of the witnesses. Execution of a will includes attestation. 'Execution' does not mean merely signing. It should be accompanied by the intention to give effect and operation to the instrument signed. 58 In the case of a thumb impression by an illiterate person, the burden is on the person relying on the document to prove that the document was read and explained. 59 Where a document purports to have been executed by a paradanashin or illiterate woman, the parties relying upon it must not only formally prove the document but must, in addition, prove that the contents were read over and explained to the executant. 60 Putting of thumb impression by a person who knows how to sign his name, does not invalidate the document. 61 This section requires proof of signature and handwriting of the person who is alleged to have signed or written the document produced. 62 Mere admission of execution of a document is not sufficient. Proof that the signature of the executant is in his handwriting is necessary. 63 The Evidence Act permits secondary evidence to be given with regard to the attestation of an attesting witness who is either dead or cannot be brought to Court. The signature of the attesting witness when proved in evidence is proof of everything on the face of the document and that he saw the executant make his mark. 64 A certified copy of a sale-deed is admissible in evidence but where the vender is denying its execution, it should be proved as required under this section. Mere production of the certified copy will not be sufficient. 65 A deed of conveyance was tendered in evidence; it purported to bear the mark of G, as vendor, and was duly attested by four witnesses, G, however, denied that she had executed the deed, and said that the mark was not hers. All the attesting witnesses were dead. A witness who knew the handwriting of one of the attesting witnesses, was called; he swore that the signature of that witness to the attestation clause of the deed was genuine. It was held that the deed was admissible in evidence, its execution by G being sufficiently proved. 66 Where the documents are produced, they are admitted by the opposite party, signatures on them are also admitted and they are marked thereafter as exhibits by the Court, they become proof of their contents. In the instant suit for eviction as the mark of exhibits had been put on the back portion of the rent receipts near the place where the admitted signatures of the plaintiff landlord were put, it was held that the rent receipts as a whole can be treated to have been exhibited as admitted documents. 67 52 Bhawanji Horbhum v. Devji Punja, (1894) 19 Bom 635. See also Bank of Baroda v. Shree Moti Industries, Bombay, AIR 2008 Bom 201, 204 (para 21).

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53 Manrriatho Nath Mukherjee v. Puron Chand Nahattha, 29 Cal WN 539 : AIR 1925 Cal 703. 54 Puran Chand v. Manmotho, 1928 PC 38. 55 Bank of Baroda, Bombay v. Shree Moti Industries, Bombay, AIR 2008 Bom 201, 204 (para 21). 56 Arjun v. Kailas, AIR 1923 Cal 149(2) : 36 CLJ 373. 57 State of Orissa v. Khetra Mohan Singh, AIR 1965 Ori 126. 58 Kumari Shantha Arogyadoss v. G.C. Kamala, 2000 AIHC 227 (para 20) (Mad). 59 Ranjan Khan v. Babu Raghunath Dass, AIR 1992 MP 22. 60 Kali Dei v. Brundaban Malik, AIR 1972 Ori 132. 61 Gangadhar Das v. Gadadhar Das, AIR 1986 Ori 173. 62 Abdool Ali v. Abdoor Rushman, (1874) 21 WR 429; Madholal Sindhu v. Asian, Assu Co. Ltd., (1945) 56 Bom LR 147 : AIR 1954 Bom 305. 63 Bulakidas Hardas Mahesari v. Sh. Chotu, (1942) Nag 661; Bhanwaria v. Ramratan, (1953) 4 Raj 145. 64 Ponnuswami Goundan v. Kalyana Sundara Iyer, (1934) 57 Mad 662 : AIR 1934 Mad 365. 65 Manindra Kumar Dey v. Mahendra Suklabaidya, 1999 AIHC 2147 (para 15) (Gau). 66 Abdulla Paru v. Gannibai, (1887) 11 Bom 690. See also Parappa v. Bhimappa, 2008 AIHC 2777, 2784 (para 32) (Kant). 67 Narbada Devi Gupta v. Birendra Kumar Jaiswal, AIR 2004 SC 175 (para 16) : (2003) 8 SCC 745.

4. PROOF OF EXECUTION OF DOCUMENT The definition of "proved" given under Section 3 of the Evidence Act must be read along with Section 67 which requires that there must be specific evidence that the signature purported to be that of the executant is in the handwriting of the executant. Until this is done, the court cannot proceed to consider whether execution is proved. In other words, Section 67 makes proof of execution of a document something more difficult than proof of matter other than execution of a document. Original of the public document must be proved in the manner required by the provisions of the Evidence Act. 68

68 Bank of Baroda, Bombay v. Shree Moti Industries, Bombay, AIR 2008 Bom 201, 204 (para 23), relying on C.H. Shah v. S.S. Malpathak, AIR 1973 Bom 14.

5. PROOF OF CONTENTS It was held that, unless the writer of the document himself is examined, evidence of contents of the documents is hearsay. Any attempt to prove contents by proving signature or handwriting of the author thereof is not permissible. 69 The consent given by a party for making a document does not dispense with either the proof of the contents of the document or the truth or otherwise of the contents. 70 69 Md. Yusuf v. D., AIR 1968 Bom 112; Ramkrishna Girishchandra Dode v. Anand Govind Kelkar, AIR 1999 Bom 89 (paras 33 and 35). 70 Karuppanna Thevar v. Rajagopala Thevar, AIR 1975 Mad 257; Palaniyappa Chettiar v. Bombay Life Assurance Co. Ltd., AIR 1948 Mad 298.

6. OBJECTION TO MODE OF PROOF

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Objection to mode of proof of a document must be taken at the time when it is exhibited.

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71 Gopal Das v. Thakurji, AIR 1943 PC 83; Bhagwan Das v. Khemchand, AIR 1973 P&H 477 referred to and followed, Sankara Lingam v. Arunachala, (1993) 1 MLJ 472.

7. REGISTRATION AND PROOF Mere registration of a document is not in itself sufficient proof of its execution.

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The mere production of a registered deed is not sufficient to prove it. The identity of the executant has to be established by oral evidence before the deed can be taken to have been proved. 73 In regard to will, it was held that the presumption in favour of due execution of the will, could be raised if the signatures of testator and attestors are proved. If attestors are not available, registration of will does not ipso facto constitute proof of valid execution. 74 72 Salimatul-Fatima Alias Bibi Hossaini v. Koylashpoti Narain Singh, (1890) 17 Cal 903; Bulakidas v. Shaikh Chhotu, AIR (1942) Nag 661; Naresh Chandra v. State of W. Bengal, AIR 1955 Cal 398. 73 Prem Raj v. Mishrimal, (1959) 9 Raj 573. 74 Yenkatarama Raju v. Narasa Raju, (1966) 2 An WR 134.

8. REGISTRATION CERTIFICATE--VALUE [ Section 60(2)] In Gopal Das v. Shri Thakurji , 75 it was held that the evidence of due registration was itself some evidence of execution, against the party so making the admission. In that case, at the time of registration, the executant was identified by two persons one of whom was known to the registrar and who was also the scribe of the document. Dealing with that, the Privy Council observed; "What remains to be shown is that the person admitting execution before the registrar was this Parshotam Das and no impostor. The question is one of fact except insofar as there was as a matter of law a presumption that the registration proceedings were regular and honestly carried out. It seems clear that any objection to the sufficiency of the proof upon this point would have been idle, the circumstances being such in the evidence of the due registration is itself some evidence of execution as against the plaintiff. Wills and documents which are required by law to be attested, raise other questions but this receipt was not in that clause. 76 Registration is a solemn act to be performed in the presence of a competent official appointed to act as Registrar. All things done before him in his official capacity and verified by his signature will be presumed to be done duly and in order. 77 Certificate of registration is prima facie proof of execution, in the absence of other evidence. 78 Where the execution of a registered document was denied, it was held that the endorsement of a registering officer was sufficient to dispense with proof as required by Section 67. 79 It is to be noted that documents which are required by law to be attested must be distinguished from documents which are not so required to be attested. The Privy Council case Gopal Das v. Shri Thakurji 80 relates to a document not required by law to be attested. In the case of documents required by law to be attested, mere endorsement of the registrar will not be sufficient to prove the document; according to Section 68,one attesting witness at least has to be called for the purpose of proving its execution, except in the case of the will, unless the execution of the will is specifically denied. It was held that the presumption under Sections 60(2) of the Registration Act cannot take the place of proof as required bySection 67, when the witnesses are available to prove the document in the manner provided by the Evidence Act. 81 In the case of a registered document more than 30 years old, mere production of certified copy is not enough to prove the execution of the document. The admission of execution incorporated in the certificate issued by the registrar, is acceptable in evidence to prove to some extent the admission of

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the execution made by the executor before the registrar. Proof of execution under Section 67 is still necessary. 82 75 AIR 1943 PC 83. 76 Kalu Nimbaji v. Bapurao Chinkaji, AIR 1950 Nag 6; see also Hutchegowda v. Chennige Gowda, AIR 1953 Mys 49. 77 Gangamoyi Debi v. Troiluckyanath, ILR 33 Cal 537(PC) ; Ehtishan v. Jamna, AIR 1922 PC 56. 78 Irudayam Ammal v. Salayath Mary, AIR 1973 Mad 421; Monbi Devi v. Amubi Devi, AIR 1958 Manipur 16. 79 Ram Krishna Ganpat v. Md. Kasim, AIR 1973 Bom 242. 80 AIR 1943 PC 83. 81 Indernath Modi v. Nandram, AIR 1957 Raj 231. 82 Rajeshwari v. Varalakshmamma, AIR 1964 AP 284; Bhutkani Nath v. Kamaleshwari Nath, AIR 1972 Assam 15; Ramakrishna Ganpat v. Md. Kasam, AIR 1973 Bom 242; Maruti Baaji Patil v. Dattu Mukumda Savant, AIR 1923 Bom 253; Lourembam Heramot v. Laisram .4ngahal, AIR 1979 Gau 68; Naresh Chandra Bose v. State of West Bengal, AIR 1955 Cal 398; Bulaki v. Chotu, AIR 1942 Nag 84.

9. MODES OF PROVING SIGNATURE AND HANDWRITING Under the Evidence Act no particular mode of proof has been mentioned in order to prove a document which is not a document which is required to be proved under Section 68 of the Act. Section 67 does not lay down any particular mode of proof for proving that a particular writing or signature is in the hand of particular person. Thus, the FIR, in the instant case, which was proved by the witness who was well acquainted with the signature of the author of the FIR, was held to be, in law, proved. 83 It was held that the carbon copies of transport permit, written in hand by a government officer and issued as a general practice, are admissible as primary evidence for comparison of handwriting. 84 However, the carbon copies cannot be generally relied upon, for the purpose of comparison because the impression made upon such carbon paper is generally irregular and blotched. 85 Where the statements of the accused persons were signed by them as well as by their lawyer, and the accused, during the trial, admitted their signatures, it was held that the statements must be held to be proved and there was no necessity to examine the lawyer. 86 Where original will though was in possession of the party but he filed a certified copy of the same without any reason, certified copy of the will was held to be not proper evidence as the original document must be on record to show that the signature of the testator was so placed that it would appear that he wanted to create the same document. 87 Where the defendant denied the execution and consideration of the suit pronote, but alleged that he had entrusted to the plaintiff a blank paper bearing his thumb impression, it was held that the plaintiff has to prove both the fact of execution and also the advancement of consideration; that the admission of the defendant as to his thumb impression on a blank paper cannot amount to admission as to the execution of the pronote. 88 83 .4marsingh Gond v. State of M.P., 2007 CrLJ 1560, 1562-63 (para 12). 84 (1952) 1 An LT 57. 85 Nityananda Roy v. Rashbehari Roy, AIR 1953 Cal 546. 86 Soni Vallabhdas Liladhar v. .4sstt. Collector of Jamnagar, AIR 1965 SC 481; see also Jagapath Rao v. Krishaji Gopal Naik, (1957) 2 An WR 217. 87 Sheshrao M. Kuratkar v. Keshavrao M. Kuratkar, AIR 2006 SC Bom 33, 35 (paras 9 & 11). The Court relied on H. Venkatachala v. B.N. Thimmajamma, AIR 1959 SC 443. 88 Seithammarakkath v. Koyommatath Mammad, AIR 1957 Ker 63.

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CHAPTER V OF DOCUMENTARY EVIDENCE S. 67-A. Proof as to digital signature. Except in the case of a secure digital signature, if the digital signature of any subscriber is alleged to have been affixed to an electronic record the fact that such digital signature is the digital signature of the subscriber must be proved.]

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Ratanlal & Dhirajlal: Law of Evidence, Updated 23rd Edition/THE INDIAN EVIDENCE ACT (ACT 1 OF 1872)/PART II ON PROOF/CHAPTER V OF DOCUMENTARY EVIDENCE/S. 68.

CHAPTER V OF DOCUMENTARY EVIDENCE S. 68. Proof of execution of document required by law to be attested. If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence: Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act , 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied. 1. PRINCIPLE

This section lays down, subject to the proviso, that the documents required by law to be attested shall not be used as evidence until one attesting witness at least has been called for proving its execution, if there be an attesting witness alive, capable of giving evidence and subject to the process of the Court. The proviso was added by the Amending Act 31 of 1926. According to it, in the case of a document other than a will, it shall not be necessary to call an attesting witness in proof of its execution if it has been registered under the provisions of the Registration Act , unless its execution by the person by whom it purports to have been executed is specifically denied. So, the position is that, if any document other than a will is registered, generally it is not necessary to call an attesting witness. But even if it is registered, if the alleged executant denies its execution, then it would become necessary to comply with the main provision by examining at least one attesting witness. This section applies to cases where an instrument required by law to be attested bears the necessary attestation. What the section prohibits is proof of execution of a document otherwise than by the evidence of an attesting witness if available. 90 This section applies only where the execution of a document has to be proved. Where, however, the execution is not to be proved, it is not necessary to call any attesting witness, unless it is expressly contended that the attesting witness has not witnessed the execution of the document. 91 This section is not permissive or enabling. It lays down the necessary requirements which the Court has to observe in order that a document can be held to be proved. 90 Veerappa Kavundan v. Ramasami Kavundan, (1907) 30 Mad 251; Ram Gopal Lal v. Aipna Kunwar, (1922) 44 All 495 : 49 IA 413. 91 Komalsing v. Krishnabai, (1945) 48 Bom LR 83 : ILR (1946) Bom 146 : AIR 1946 Bom 304.

2. EXECUTION

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The expression "execution" does not merely mean the signature. It means that the executant or the person who puts the signature has done so after understanding the contents of the document. The fact that the Will is registered does not amount to conclusive evidence of the due execution of the Will. However, keeping in view the presumption that official act must have been done regularly, the court can justifiably infer about proper execution of a document, where it is registered, coupled with other relevant circumstances. 92 92 J. Mathew v. Leela Joseph, AIR 2007 (NOC) 2524(Mad) .

3. REQUIRED BY LAW TO BE ATTESTED The expression "required by law to be attested" means that under some enactment the document has to be attested. This means 'required by the law of the country where the property is situated'. The rule as to the law of domicile is not extended to immovable property. The following are the documents which are required by law to be attested: 1a )   A mortgage deed where the amount secured is Rs. 100 or more, vide Sections 59 of the Transfer of Property Act . 1b )   Gift of immovable property, vide Sections 123 of the Transfer of Property Act . 1c )   Wills executed by persons other than Hindus, Muslims or Buddhists-Sections 58 & 63of Indian Succession Act , 39 of 1925. 1d )   Wills made by Hindus, Jains, Sikhs and Buddhists-- Section 57 of the Act 39 of 1925. The principle underlying the section is that execution of a will must be proved by at least one attesting witness, that it is only an attesting witness who is entitled to prove the execution of the will. It is a concession that the legislature has made. If that concession does not result in complying with the mandatory requirements of this section the only proper method is to call the other attesting witness, so that both the attesting witnesses are before the Court, and the due execution of the will is proved by the two attesting witnesses which are necessary before a will can become a valid document. 93 The necessity of examining an attesting witness would arise only when the document which is required by law to be attested is sought to be used in evidence and the execution thereof is questioned. 94 A bond is not required by law to be attested, and production of attesting witnesses is not necessary 95 , so is a sale-deed 96 and an agreement of re-conveyance. 97 Where a gift is executed by a Mahommedan in compliance with Mahomeddan Law, it was held that Sections 123 of the Transfer of Property Act and Section 68 of EvidenceAct do not apply even if it is by registered deed, and it can be proved without examining the attesting witnesses, under Section 72 of the Evidence Act . 98 Release deed is not a document required by law to be attested. So attesting witness need not be examined. 99 Under Section 58, a document requiring attestation, if not attested, cannot be used as evidence until at least one attesting witness has been called for the purpose of proving its execution. A mortgage is admissible as evidence of personal covenant to pay, since such covenant does not require attestation in law. 1 Where a gift deed and an assignment deed were in question and those documents were registered documents of more than thirty years old, it was held that there was no necessity to call the attesting witness to prove the gift deed though it was required by law to be attested by two witnesses. Regarding the deed of assignment there was no question of calling any attesting witness as it was not required by law to be attested 2 but where the provisions of Section 123, T.P.A. and Section 68 of the Evidence Act were not complied with, the gift deed was held to be inadmissible in evidence. 3 Where a document not required to be attested, is attested the attesting witness need not be examined.

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93 Vishnu Ram Krishan v. Nathu Vithal, (1948) 51 Bom LR 245 : AIR 1949 Bom 266; Ram Rattan v. Bittan Kaur, AIR 1980 All 395 (where the attesting witness though alive was not produced). 94 Amar Singh v. Gosai, AIR 1972 Guj 74. 95 Jora (Smt.) v. Prabhu Narain, AIR 1958 Raj 310. 96 Hans Raji v. Yasodanand, AIR 1996 SC 761 (para 10). 97 H.S. Rudrappa v. H.Y. Shivalingappa, 1999 AIHC 4543 (para 4) (Kant) : AIR 2000 NOC 42. 98 1971 All WR (HC) 542. 99 Krushanadas v. Bhagwan Das, AIR 1976 Bom 153. 1 Puluka Yeetil v. Thiruthi Palli, (1908) 32 Mad 416(FB) ; following Sadakaravar v. Tadepally, (1907) 30 Mad 284; overruling D. Society v. Ponnamali , ILR 18 Mad 29; see also Yenkata Jagannath v. Yenkata Kumara, AIR 1931 Mad 140 : ILR 54 Mad 163; Sonatun v. Dino, (1898) 26 Cal 222; Kondisama v. Firam of M, 43 MLJ 475; Dhana v. Nastulla, AIR 1926 Cal 637. 2 Kunha Mina Umma v. Special Tahsildar, AIR 1977 Ker 41. 3 Flora Margaret v. A. Lawrence, 2000 AIHC 3987 (paras 22 and 23) (Kant) : AIR 2000 NOC 81(Kant) .

4. ATTESTATION The word 'attested' used in this section, is not defined in this Act. But a definition of the word "attested" was given for the first time in the Transfer of Property Act , by the Amending Act 27 of 1926. Section 3 of that Act as amended reads: "attested" in relation to an instrument, means and shall be deemed always to have meant, attested by two or more witnesses each of whom has seen the executant sign, or affix his mark to the instrument, or has seen some other person sign the instrument, in the presence, and by the direction, of the executant, or has received from the executant a personal acknowledgement of his signature or mark, or of the signature of such other person and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one such witness shall have been present at the same time and no particular form of attestation shall be necessary. Section 63(c) of the Indian Succession Act (Act 39 of 1925) is also in terms identical with Sections 3 of the Transfer of Property Act . The Supreme Court in Beni Chand v. Kamala Kunwar , 4 held that by attestation is meant the signing of a document to signify that the attestor is a witness to the execution of the document; and by Section 63(c) of the Secession Act, an attesting witness to a will is one who signs the document in the presence of the executant, after seeing the execution of the document, or after receiving a personal acknowledgement from the executant as regards the execution of the document. 5 In Section 3Transfer of Property Act , while defining the word "attested", the expression "personal acknowledgement of his signature" is used, as was used inSection 9 of the English Wills Act 1837 in England. "Personal acknowledgement" is not equivalent to "express acknowledgement". It is not necessary that an acknowledgement should be express and should be made verbally. 6 "Attested" means that a person has signed the document by way of testimony to the fact that he saw it executed. 7 An attesting witness is one who signs the document in the presence of the executant, after seeing the execution of the document, or after receiving a personal acknowledgement of the execution of the document by the executant. 8 The object of attestation is that some person should verify that the deed was signed voluntarily. Knowledge of the contents of a document ought not to be inferred from the mere fact of attestation.

9

Attestation and execution are two different acts, attestation follows execution. Attestation is meant to ensure that the executant was a free agent and not under pressure or subject to fraud, while executing

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the document. For the purpose attestation is insisted upon under the Transfer of Property Act . To make a deed of mortgage or gift admissible in evidence it is enough to comply with the provisions ofSection 68. The question whether the document really created a mortgage or a gift or not, must be proved separately by showing that the requirements of Section 59or Sections 123 of the Transfer of Property Act have been complied with.10 An unattested gift deed is not valid as the same runs contrary to the provisions of the T.P. Act and the Evidence Act. 11 This section applies only to a document duly attested and not to one which has not been proved to be so. Where the question was whether the document is a mortgage or a simple money bond, and when the execution was not specifically denied, it was held that even then, due attestation must be proved, though not by any attesting witness, in order to take advantage of the transaction as mortgage. 12 The object of attestation is to protect the executant from being required to execute a document by the other party thereto by force, fraud or undue influence. A mortgagee who admits execution cannot be permitted to contend that the mortgagor failed to prove the requirements of Sections 59 of the Transfer of Property Act .13 The object of placing more attestations than one upon a document whether at the party's voluntary instance or by requirement of law, is ordinarily not to demand the combined testimony of all at the trial, but merely to provide by way of caution a number of witnesses; so that the contingencies of death, removal of residence, and the like, may be guarded against, and one witness at least may be available. But the main object in statutes requiring attestation as an element of validity is to surround the act of execution with certain safeguards; the object of securing evidence for litigation is a secondary one. 14 It is not necessary that more than one witness be present at the time of attestation of a Will. A particular form of attestation also is not necessary. The only requirements are that the Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will and each of the witnesses shall sign the Will in the presence of the testator. 15 The act of a witness having seen the executant putting his signature on an instrument and thereafter the witness in the presence of the said executant putting his signature on the instrument in the testimony of the said execution. 16 4 AIR 1977 SC 63. 5 Also see Nagulapati Lakhsmamma v. Mupparaju Subbaiah, (1998) 5 SCC 285 : AIR 1998 SC 2904. 6 Amir Husain v. Abdul Samad, AIR 1937 All 646; Ghanshyam Das v. Gulab , ILR 50 Mad 927 (FB); Umrao v. Bakshi, AIR 1957 Raj 180. 7 Alagappa Chettyar v. Ko Kala Pai, AIR 1940 Rang 134; Shamu Patter v. Abdul Kadir Ravuthan, (1912) 35 Mad 607 : 39 IA 218 : (1912) 14 Bom LR 1034. 8 Lachman Singh v. Surendra Bahadur Singh, (1932) 54 All 1051 FB : AIR 1932 All 527. 9 Nainsukhdas Sheonarayan Shop v. Gowardhandas, ILR (1947) Nag 510 : AIR 1948 Nag 110. 10 Dhiren Bailung v. Bhutuki, AIR 1972 Gau 44; relying on Lachman Singh v. Surendra Bahadur Singh, AIR 1932 All 527(FB) . 11 Chand Bee v. Hameedunnissa, AIR 2007 AP 150, 155 (para 26). 12 Dondapani Gondo v. Hrushikesh Patnaik, ILR 1967 Cut 593. 13 Rondapani Goudo v. Hrusikesh Patnaik, ILR 1970 Cut 396. 14 W IGMORE , Section 1304. 15 Deepak Kumar Das v. Srimati Parbati Das, AIR 2008 (NOC) 2897(Gau) . 16 Harmani Dei v. Srikantha, AIR 2009 (NOC) 1063(Ori) .

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5. ATTESTING WITNESS Under Sections 3 of the Transfer of Property Act , the attesting witness must see the executant sign. Where a witness was blind, he was incapable of attesting the document, as he could not see the executant sign.17 Where an attesting witness stated that the executant put her thumb impression in their presence it is sufficient proof of valid attestation. 18 It must be shown that the attestator signed the document in the presence of the executant. 19 The Privy Council in Kundan v. Mushrrafi Begam , held that the expression "signed in the presence" does not necessarily mean that the attesting witness should act ually see the executants sign the document. It is enough if their signatures are made under the circumstances that the executant, if he was minded to see the witnesses sign, he could have done so. 20 The Supreme Court in Abdul Jabbar v. Venkata Sastri , 21 held that the act of attestation must be done animo attestandi i.e., with the intention to attest; the fact that one's name is on the document does not make him an attesting witness, irrespective of the purpose for which it is there. 22 An illiterate person also may be an attesting witness by affixing his mark or finger impression. The word 'sign' includes "mark" under the General Clause s Act 10 of 1897. 23 It is not necessary that all the attesting witnesses should be present at a time for affixing their signatures on the document. What has to be proved is that each of the attesting witnesses saw the testator signing the will or received from the testator a personal acknowledgement of his signature and that each of the witnesses signed the will in the presence of the testator. It is not necessary that the attesting witnesses should be able to identify the signature of each other or even to know each other. 24 17 In re : Charles Gilson, AIR 1949 Pat 434. 18 Kishore v. Ganesh, AIR 1954 SC 316. 19 (1975) 1 Cut WR 512. 20 AIR 1936 PC 207. 21 AIR 1969 SC 1147. 22 Abinash v. Dasrath, 32 Cal WN 1228; Shamu Pattar v. Abdul Kadir , ILR 35 Mad 607 (PC); Rajammal v. Chinnatal, AIR 1976 Mad 4; Gurnam Singh v. Ass Kaur, AIR 1977 P&H 103. 23 Prankr v. Jadhunath, 2 Cal WN 603. 24 Krishna Kumar v. Kayashta Pathshala, AIR 1966 All 570.

6. UNTIL AT LEAST ONE ATTESTING WITNESS HAS BEEN CALLED When one of the two attesting witnesses proved due execution of a gift deed, the other attesting witness need not be produced. 25 Where one of the attesting witnesses stated that he had seen the testator executing the Will which was signed by the other witness, it was held that discrepancy in the evidence of the other attesting witness, will not dilute the evidence adduced by the other witnesses of the propounder. 26 One of attesting witnesses stated that he had not seen another attesting witness signing in his presence. The statement made by the testator acknowledging personally the signature of another attesting witness formed part of res gestae and was admissible as hearsay evidence in the light of Sections 6 and 18 of the Evidence Act . It was held that it was necessary that signatures by attesting witnesses had to be made simultaneously in the presence of each other. 27

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In cases where the two attesting witnesses had signed in the presence of each other, it is not necessary to examine the both to prove that they had received acknowledgement from the testator or his signature or mark on the will. 28 There is no hard and fast rule that only the attesting witnesses can prove the execution of a Will. Where the attesting witnesses are dead and the Will is registered in accordance with the Registration Act , the evidence of the Registrar who registered the Will can prove the execution of the Will as the endorsement made by him on the Will was in his official capacity. 29 There is no need to produce both the witnesses who attested the documents, to prove the execution. If one is examined it is sufficient. No adverse inference can be drawn for non-production of the other. 30 The word 'called' means tendered for the purpose of giving evidence. 31 It is not used in the sense of summoned. 32 It is not necessary for the attesting person, in order to prove execution, to point to the signature or mark made by the executant. It does not therefore follow that because a witness is unable to point to the signature on a document of the person whose signature he purports to have attested, he has failed to prove that signature. 33 This section provides that a document cannot be held to have been proved unless one of the attesting witnesses is called where it is not established that all of them are dead or were incapable of giving evidence 34 but the fact that the said witness will prove hostile does not absolve the party from calling him as a witness and mere examination of the writer of the deed or the fact that the will was registered one was held to be not sufficient proof of its due execution. 35 Where the plaintiffs and the defendants failed to produce the only alive attesting witness in spite of having been given a number of opportunities for the same and the evidence was ordered to be closed, application for producing additional evidence was allowed as the proof of the registered will was not possible without examining the attesting witness. 36 The words 'at least' presuppose that more evidence may be required and it can only be by reference to the circumstances of each case that the quantum of evidence necessary to discharge the onus of proof can be measured. A will duly signed by the testator and attested by two witnesses, who attest not in the presence of each other but at different times on the acknowledgement by the testator of his own signature, cannot be admitted to proof on the evidence of only one of the attesting witnesses. 37 There is no requirement that attesting witnesses should identify each other.

38

Where the attesting witnesses proved the execution, it was immaterial that their names were not mentioned in the will. 39 Where the sole evidence of a title was a "will" and the attesting witness failed to prove it, it would not be said that the will had been legally proved. 40 It would not be necessary to call an attesting witness where execution of a deed was not denied, only its validity was questioned on the ground of undue influence. 41 In the case of a mortgage deed if the evidence of one attesting witness has not been accepted, further evidence of due execution and attestation of the mortgage deed is necessary. 42 For proving the Will, obligation is only to call at least one attesting witness, if he is alive, to the Court. However if he denies the Will, but by other evidence it is proved that there is proper attestation, the Will can be accepted. The burden of proof that the Will has duly been executed, is on its propounder. Mere proof of signature of the testator is not enough. 43 25 Naraini v. P. Mohan, AIR 1972 Raj 25; following Abdul Jabbar v. Venkatasastri, AIR 1969 SC 1147; T.V. Narayana Panicker v. Neelakandan Damodaran, 2001 AIHC 825 (para 12) (Ker). 26 Ajoy Kumar Das v. Kalpana Das, AIR 2007 (NOC) (Cal). 27 Shri Pratap Bhattacharya v. Shri Ashok Bhattacharya, AIR 2007 (NOC) 893(Cal) . 28 M.S. Thanigachala v. Rukmani Ammal, AIR 1989 Mad 99. 29 Dharam Deo Verma v. Ved Mitra Verma, AIR 2008 (NOC) 287(Gau.) 30 Mustt Ladi Agarwallani v. Bhagabandoi Agarwallani, (1966) 18 Assam 462. 31 Moti Chand v. Lalta Prasad, (1927) 40 All 266.

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32 Ruprao v. Ramrao, AIR 1952 Nag 88. 33 Riazulnisa Begam v. Lala Puran Chand, (1943) 19 Luck 443 : AIR 1944 Oudh 40. 34 Ananta Raghuram v. Rajah Bommaderara, AIR 1958 Andhra 418; Lalita James v. Ajit Kumar, AIR 1991 MP 15. 35 Asia Bi v. S.A. Abdul Gaffor, 1996 AIHC 1332 (paras 12 and 13) (Mad). 36 Rajinder Singh v. Subedar Hari Singh, AIR 2000 P&H 257 (para 10). 37 Roda Framroze v. Kanta Varjivandas, (1945) 47 Bom LR 709 : ILR (1946) Bom 295; Ruprao v. Ramrao, AIR 1952 Nag 88. 38 Krishna Kumar v. Kayastha Patsala, AIR 1966 All 570. 39 Beni Chand v. Kamla Kunwar, AIR 1977 SC 63. 40 Rameshwari Devi v. Shyam Lal, AIR 1980 All 292. 41 Engineers (Overseas) Corpn. v. W.B. Fin. Corpn., AIR 1986 Cal 132. 42 Surendra v. Behari, AIR 1939 PC 117. 43 Joseph v. K.V. Ippunny, AIR 2007 (NOC) 2517(Ker) .

7. EXECUTION BY PARDANASHIN WOMEN When women signed behind the purdah and the identifier stated that they are his wives, though the witnesses did not see the women putting their signatures, it was held that the deed was properly attested. 44 Where the attesting witnesses were acquainted with the voice of the lady and recognised it, it was held that though the witnesses were unable to see the face of the lady who was sitting behind a chick, the document was duly attested. 45 Where a woman executed a document sitting behind a purdah and her son took the document to her and brought back the deed bearing her signature and said that the deed was signed by his mother, and witnesses thereupon attested it, it was held that the document was not properly attested as the attestor did not take the personal acknowledgement from the executant of her signature. 46 A party to a document is not competent to attest. another cannot be an attesting witness to it. 48

47

A power of attorney agent executing the deed for

44 Kasidanbi v. Gangulal, 16 NLR 196 : 56 IC 247. 45 Padarnath v. Ram Narain, 19 Cal WN 991; Barkatunnissa v. Debi, AIR 1927 PC 84; Sarurjigar v. Barada , ILR 37 Cal 526. 46 Ganga Pershad v. Ishri Pershad, AIR 1918 PC 3; Hira Bibi v. Ramhari, AIR 1925 PC 203. 47 Sarurjigar v. Barada , ILR 37 Cal 526; Venkataramayya v. Nagamma, AIR 1932 Mad 272. 48 Gomathi v. Krishna, AIR 1954 Mad 126.

8. PROOF OF ATTESTATION The direct evidence of the attestor will be "primary evidence". If there is no attesting witness alive, then the document must be proved in the manner provided by Sections 47 and 73. Where the plaintiff got issued the summons to the attesting witnesses under Order XVI, Rule 8, CPC ., and they were not served, it was held that the responsibility of the plaintiff did not end and that he must take coercive steps under Order XVI, Rule 10, CPC ., for securing their attendance in court; if that was not done, it would not amount to compliance with Section 68, regarding proof of attestation. 49

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Failure to call an attesting witness where it is not established that all of the attesting witnesses are dead or are incapable of giving evidence, is a fatal defect, and the document cannot be held to have been proved. 50 Where the document concerned is not the foundation of a suit, non-compliance with Section 68 does not prevent the document from being used in evidence for a collateral purpose. 51 When both parties admit the execution formal proof of execution is not necessary. 52 Where a document was admitted after formal proof is waived, it means admission by the party waiving such formal proof, of due execution of the document. If the execution itself is admitted the question of proving execution of the document by the attesting witnesses would not arise. 53 Where the mortgagee stated that the defendant executed the document, but he was not cross-examined regarding the details of the execution or about attestation, though it was generally denied, by the mortgagor in his written statement, it was held that it would be presumed there was due execution and also attestation as there is no attack on due execution. 54 Where the defendant admitted the execution and also the attestation signatures, but contended that the attesting witnesses had not seen the mortgagor signing the document it was held that it is for the defendant to prove such contention, as there would be presumption of due execution and attestation on the admission of the defendant. 55 This section applies only where the execution of a document has to be proved. Where however, the execution is not to be proved, it is not necessary to call any attesting witness, unless it is expressly contended that the attesting witness has not witnessed the execution of the document. 56 Where the execution or the attestation of the will is not in dispute, there is no need to comply with the requirement of calling at least one attesting witness. 57 Execution means not only signing by the person executing the document but also the attestation of his signature by witnesses where it requires such attestation. 58 It was held that, even though the attesting witnesses are defendants in the case, they should be examined as attesting witnesses; on their denying their attestation, they could be treated as hostile and then the plaintiff would be in a position to prove the execution of the document in another manner. Merely because they are defendants, the responsibility cast on the plaintiff under Section 68 is not discharged. 59 Where an attesting witness deposed that he had attested the mortgage bond, and the other attestor has also witnessed its execution, it is sufficient evidence of valid attestation. 60 Where the scribe deposed that he read over the contents of the document to the executant who signed the same thereafter, which was followed by the signature of scribe, who was not cross-examined leaving his evidence unrebutted, it was held that the requirement of section 68 of the Evidence Act stood satisfied. 61 Where one attesting witness states that the executant signed in his presence but did not state about the attestation by the other attesting witnesses, it was held that it was necessary to prove that the document was properly attested by the other attesting witnesses. 62 When the attestation is not specifically challenged, and the witness is not cross-examined, regarding the details of the attestation, it is sufficient for him to say that the document was attested by the other witnesses and himself, and it is sufficient proof of attestation under this section. 63 Where one of the attesting witnesses was called and his evidence was disbelieved, it was held that it cannot be said that the provisions of Section 68 were complied with. 64 In such a case it cannot be presumed that the document was attested by the other signatory.

65

Though the witnesses required to prove the attestation might not have stated that they put the signature in the presence of the executant, if there is evidence showing their presence at the time of the execution and of the registration of the document at the same time and at the same place, it can be legitimately inferred that the witnesses put their signatures in the presence of the executants, after having seem them signing the instrument. 66

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Mere production of an entry in the document writers register cannot be taken as proof of attestation of the will. 67 Where a document is written, executed and attested in one ink the presumption of due attestation is permissible under the maxim " Omnia presumuntur rite at solenniter esse act aonec probetur in contrarium ". 68 Where the original document consisting of two sheets attested by two witnesses and the first sheet was removed and substituted by two sheets not attested by those witnesses and that too without the consent of the executant, it was held that the document of three sheets cannot be said to have been properly attested and executed; that the admission before the registrar of the execution was not sufficient proof of execution. 69 Where the only available attesting witness to a mortgage deed denies his attestation, it is permissible to prove the deed by calling its writer under Section 71 to depose to the execution of the deed by the mortgagor and to its attestation by the two witnesses. 70 The plea that last four attesting witnesses did not give evidence was not raised in Courts below and there was nothing to show that any of the last four attesting witnesses was alive or was subjected to the process of the Court during the trial of the suit, it was held that the same could not be raised in appeal in the Apex Court. 71 49 R. Nammayyamma v. K. Musalayya, (1980) 2 An WR 350. 50 Ananta Raghu Ram v. Rajah Bommadevara, AIR 1958 AP 418; Govind Gountia v. Balamukund Sahu, ILR 1964 Cut 27. 51 Brundaban Sahu v. Chaitanya Sahu, (1975) 41 Cut LT 597; following Shyamlal v. Lakshmi Narain, AIR 1939 All 269; Mahadeo Prasad v. Ghulam Mohammad, AIR 1947 All 161. 52 Panchanan Roy v. Braja Gopal Sarkar, (1972) 1 Cal 669. 53 Durgapada Jana v. Nemai Charan Jana, AIR 1986 Cal 23. 54 Dashratha Prasad v. Lallosingh, AIR 1951 Nag 343. 55 Akhayyamma v. Papaiah, AIR 1956 Mys 36. 56 Komalsingh Kuwarsing v. Krishnabai, (1946) 48 Bom LR 83 : (1946) Bom 146. 57 Thayyullathil Kunhikannan v. Kalliani, AIR 1990 Ker 226. 58 Hari Nath Ghosh v. Nepal Chandra Ray Chaudhuri, (1937) 1 Cal 507. 59 Rajyalaxmi v. Satywani, (1970) 2 An WR 88. 60 Kishore v. Ganesh, AIR 1954 SC 316; Raman Pillai v. Ramakrishna Pillai, AIR 1952 Tra & Co. 195; Ghansilal v. Bhuri Devi, AIR 1964 Raj 39. 61 Peddavandla Narayanamma v. Peddasani Venkata Reddy, AIR 2007 AP 137, 141-42 (para 17). 62 Zaharul v. Mahadeo, AIR 1949 Nag 149; Vishnu v. Nathu, AIR 1949 Bom 266; Mirza Md. v. Jambulingam, AIR 1941 Rang 122; Ramaswamy v. C. Ramaswami, AIR 1975 Mad 88. 63 Kuwar Lal Amritlal v. Rekhlal, AIR 1950 Nag 83; relying on Kundanlal v. Musharrafi, AIR 1936 PC 207. 64 Surendra v. Behari, AIR 1939 PC 117. 65 Sita Dakuani v. Rama Chandra Nahak, ILR 1967 Cut 593. 66 Mahaluxmi Bank Ltd. v. Kamakhyalal, AIR 1958 Assam 56. 67 Bibo Devi Smt. v. Rattan Lal, (1972) 2 Delhi 699. 68 Bhimasingh v. Fakirchand, AIR 1948 Nag 1552 : ILR (1947) Nag 649.

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69 Karri Venkata Reddi v. Gudimatta Sathi Reddi, (1973) 2 An LT 180. 70 Lakshman v. Krishnaji, (1927) 29 Bom LR 1425. 71 Kuppuswami v. Arumugam, AIR 1967 SC 1395.

9. PROOF OF EXECUTION OF A REGISTERED DOCUMENT [PROVISO] The proviso was added by Act XXXI of 1926. It simplifies the difficulty of calling attesting witnesses where the document to be proved is a registered one and is not a will and its execution is not specifically denied by the person executing it. 72 If the attestation is not specifically denied it is not necessary to call any attesting witness. 73 The proviso requires the attendance of attesting witnesses in the court to give his evidence in the cases when the disputed instrument is alleged to be a valid document duly and properly executed between the parties. It does not impose any burden upon the parties, which dispute the correctness and validity of such document. 74 If a gift deed was duty registered in accordance with the provisions of the Indian Registration Act 1908, and one of attesting witnesses of the deed had proved authenticity and validity of the gift deed, the deed was held to be properly proved.75 What has to be specifically denied is the execution of the document and a mere denial of the genuineness of the document is not enough to indicate that the execution of the document was denied. 76 The Madras High Court has held that the proviso has a retrospective effect as it relates to procedural law and not to substantive law. If the execution of a deed required to be attested by law is not denied by the executant, it need not be proved by any attesting witness, though it might have been executed before the enactment of the proviso. 77 Merely because the scribe and attestors of a document are examined, the Court is not bound to give the finding that the document is duly executed when other evidence on record reveals the inherent improbability of the document executed by the executant. 78 Where it was proved that the gift deed was executed under undue influence, it was held that the same was incomplete, ineffective and inoperative. 79 72 The following cases are affected by this proviso : Veerappa Kavundan v. Ramasami Kavundan, (1907) 30 Mad 251; Satish Chandra Mitra v. Jogendranath Mahalanabis, (1916) 44 Cal 345; Shayama Devi v. Premvati, AIR 1996 All 57 (para 22). See also Hanumantappa v. Bhimawwa, AIR 2006 Kant 148, 149-50 (para 7); Giano v. Puran, AIR 2006 P & H 160, 169 (para 27). 73 Yacubkhan v. Guljarkhan, (1927) 52 Bom 219 : 1928 30 Bom LR 565; Hari Nath Ghosh v. Nepal Chandra Ray Chaudhuri, (1937) 1 Cal 507; Sheo Rattan Singh v. Jagannath, (1936) 12 Luck 681; Bhagwandas Dhondidas v. Basawwa, (1956) 58 Bom LR 809; See also Surendra v. Behari, AIR 1939 PC 117. 74 Markande v. Sudama Chaubey, AIR 2007 All 70, 72 (para 5). 75 Nur Bhanu v. Abdul Amin Bhuinya, AIR 2006 Gau 27, 30 (para 15). See also Kalawati Devi v. Parmanand Mandal, AIR 2006 Pat 22, 23 (paras 6 & 7); Giano v. Puran, AIR 2006 P&H 160, 168-69 (para 25 and 27).. 76 K. Narasimhappa v. Lakkanna, AIR 1959 Mys. 148. 77 Thayammal v. Mutukumaraswami Chettiar, (1929) 53 Mad 119. 78 Surapaneni Narasimha Rao v. Uppalapati Sreeramgannyaka, 2005 AIHC 2715, 2717 (para 7) (AP). 79 Munna Kumari v. Umrao Devi, AIR 2006 Raj 152, 155 (para 16).

10. MEANING [EXECUTION]

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The word "execution" in the proviso not only means signing by the executant but means and includes all the series of act s which would give validity to the document concerned. 80 Mere admission by the executant of the mortgage bond that it has been signed by him cannot dispense with the proof of attestation. 81 The word "execution" is hardly apt when used in regard to the drafting of a letter and is only appropriate in regard to a deed or instrument, and in such cases, certain formalities are insisted upon by law and they are to be followed by the executant in order to make the document effective in law. 82 Where the defendant pleaded in his statement that he did not admit execution or receipt of consideration one has to prove both execution and consideration of the document. The contention that there was no specific denial of signature and attestation cannot be accepted. 83 Where the true copy of the power of attorney shows that the original was not signed by the managing director of a company and does not bear the seal of the company, it was held that there was no proper execution of the power of attorney. 84 In the case of a will it was held that affixing of thumb mark on the document is not a necessary legal requirement of execution. It can be executed by putting a pen mark on it, but if the thumb mark is on the back of the will, it is not execution of the will 85 but where the deceased the executant of the will put his signature in the presence of the witnesses who put their signature in the presence of the executant and the advocate, drafting the will, put his signature after seeing that the executant and the witnesses had so put their signature, it was held that the will was properly executed and attested. 86 Execution of a document implies intelligent and conscious appreciation of the contents and the facts connected with the document. Where the thumb mark or signature is affixed to a piece of blank paper and which does not contain necessary contents of the transaction there is no execution of the document. 87 As regards a will execution means and implies testamentary capacity as well as formal execution and attestation. 88 The certificate of the registrar is prima facie evidence of execution and also conclusive when there is no evidence to throw any doubt. 89 Where the Sub-Registrar had endorsed a registered will that the executant of the will was introduced to him by the lambardar of a village and the executant admitted execution of the will and signed in his presence but the Sub-Registrar could not say whether the lambardar who identified the executant was a Harijan or someone else and the scribe deposed that he did not know the executants of the will, the Court doubted its genuineness. 90 Mere proof of signature of a party to a document is not a same thing as proving due execution of the document. 91 80 Lachman Singh v. Surendra Bahadur, AIR 1932 All 527(FB) ; Amir Husain v. Abdul Samad, AIR 1937 All 646. 81 Rajani Kantha v. Bonbehari Sarkar, AIR 1952 Cal 7; Kundan v. Mushrrafi, AIR 1936 PC 207; Bindeshri v. Panchayati, AIR 1936 All 169; Ebrahim Mandal v. Akshya Konar, 40 Cal WN 151. 82 Sivaramakrishnayya v. Kasiwiswanadham, AIR 1957 AP 584. 83 Surendra v. Behari, 1939 PC 117; Ghansilal v. Bhuridevi, AIR 1964 Raj 39. 84 D.H.M. Framji v. Eastern Union Bank, AIR 1951 Punj 371. 85 Ramnath v. Ramnagina, AIR 1962 Pat 481. 86 Jamunabai v. Surendrakumar, AIR 1995 MP 274 (para 17). See also Bhagya Wati Jain v. General Public, AIR 1995 P&H 201 (para 22); K.R. Rajalakshmi Devi v. K.R. Chandrasekhar, 1998 AIHC 1397 (paras 28, 29, 31, 32 and 36) (Kant). 87 Ramadhin v. Siaram, AIR 1957 Pat 64; Chulhai Lal v. Kuldip Singh, AIR 1931 Pat 266. 88 Krishna Kumar v. Kayastha Pathshala, AIR 1966 All 570.

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89 Monbi Devi v. Amubi Devi, AIR 1958 Manipur 16; Gangamoyi Devi v. Troilueyanath Chowdary , ILR 33 Cal 537 (PC). 90 Gurdial Kaur v. Kartar Kaur, (1998) 4 SCC 384. 91 Narayanappa v. Lachmakka, ILR 1958 Mys 263.

11. SPECIFICALLY DENIES The words "specifically denied" means specifically denied by the party against whom it is sought to be used and not only by the executant. Where, therefore, a party against whom a document is sought to be used denied its execution, even though the executant does not do so, it is necessary to call an attesting witness to prove it. 92 A third party who is a party to a mortgage suit but not to the mortgage deed can deny execution and require proof of attestation when the executant of the deed admits execution. 93 Where the plaintiff alleged that the executant of the gift deed was so old and infirm that he could not understand the nature of the document, the Court said that it was not "a specific denial". 94 A mere general denial of a mortgage or not admitting it cannot be regarded as a specific denial of its execution within the meaning of the proviso to this section. When there is only a general denial of the execution and there is no cross-examination regarding attestation of a witness who comes forward to swear to execution then it can be presumed that there was due attestation. 1 Attacking a document as a sham and nominal transaction would not amount to a specific denial of execution. 2 A plea that the plaintiff was not aware of the execution of a document does not amount to specific denial. 3 The law requires not a mere denial but a specific denial which means, not only that the denial must be in express terms but it should be definite and unambiguous what has to be specifically denied is the execution of the document. Other contentions not distinctly referring to the execution of the document by the alleged executant are not covered by the expression denial in the proviso. 4 When the borrower did not specifically deny execution of the mortgage deed but only alleged that it was got by coercion and undue influence and was not supported fully by consideration, it was held that the execution of the deed was admitted and therefore it was not required to be proved by one atleast of the attesting witnesses. 5 Where the execution of a mortgage deed was specifically denied, and the attesting witness was not examined on the ground that he was won over, it was held that it was not a sufficient ground for considering other evidence to prove execution. 6 The specific denial of execution of a document must be in a proceeding before a court. If the execution or the attestation is specifically denied in the written statement the plaintiff is bound to produce an attesting witness to prove execution or the attestation. 7 When execution of a gift deed is specifically denied attesting witness has to be called for proof but not where the donor specifically admitted its execution. 8 If it is not denied in the pleading there is no necessity to call the attesting witness. 9 Where the execution is not specifically denied, attestation can be proved by any other method without taking recourse to the provisions of Section 68 which would come into operation only when the execution is specifically denied. 10 It is only when there is specific denial by the defendant of the execution of the document, the plaintiff is to give strict proof of the execution under Section 68. 11 In a suit for redemption of a unsufructuary mortgage where the execution of the mortgage deed was not denied by the mortgagee, it was held that as the deed was not attested it is invalid but a decree could be granted for redemption on the basis of mortgagor's title, as the mortgage was not denied. 12 In view of the proviso to Section 68 of the Evidence Act, only when the execution of the gift deed was specifically denied, the document was required to be proved by examining attesting witnesses. Such a denial could not be made by any person unless he had a right to succeed or any other right in the property. 13

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92 Chandra Kali v. Bhabuti Prasad, (1943) 19 Luck 365 : AIR 1943 Oudh 416. 93 Syed Zaharul Hussain v. Mahadeo Ramji, AIR 1949 Nag 149. 94 Chhuttan Lal v. Shanti Prakash, AIR 1981 All 50; Karimullah v. Gudar Koeri, AIR 1925 All 56; Radha Ballab v. Deoki Nandan, AIR 1932 All 320; Babanchanran v. Puran Chandra, (1959) 25 Cut LT 291; Harnam Singh v. Dalip Singh, (1963) 65 Punj LR 1133; Narasimhappa v. Lakkanna, AIR 1959 Mys 148; Nikunja Bala v. Suchitra Dasi, AIR 1955 Tripura 17. 1 Dashrath Prasad v. Laloo Singh, AIR 1951 Nag 343. 2 Yedachala v. Ameena, AIR 1944 Mad 121. 3 Kadiya Umma v. Mayan Kutty, AIR 1992 Ker 261. 4 Narasimhamappa v. Lakkanna, AIR 1959 Mys 148; relying on Surendra v. Behar, AIR 1939 PC 117. 5 Engineers (overseas) Corporation Pvt. Ltd. v. WB Financial Corporation, AIR 1986 Cal 132. See also Raghvendra Rao v. M. Yeeravenkatarao, 2002 AIHC 2333, 2334 (paras 10 & 11) (Kant); G. Ramaiah v. Muthyala Prakash, 2003 AIHC 3220, 3222 (para 12) (AP); Sk. Meer Mohiddin v. Sk. Rahmathunisa Begum, AIR 2005 NOC 649(AP) . 6 Ram Ratan v. Bittan Kaur, AIR 1980 All 395. 7 Ebrahim Mandal v. Akshya Konar, 40 Cal WN 151; Harnam Singh v. Dalip Singh, (1963) 65 Punj LR 1133. 8 Surendra Kumar v. Nathulal, AIR 2001 SC 2040 (para 12). 9 Lakho Tewari v. Lalit Koeri, AIR 1927 Pat 403. 10 Prauas Chandrapati v. Jagan Mohan Das, ILR 1960 Cut 214; Ghansilal v. Bhuri Devi, AIR 1964 Raj 39; no specific denial of execution and marked without objection, Sunamani Dei v. Chakradhar Das, 1998 AIHC 3205 (para 5) (Ori); Ishwar Dass Jain v. Sohan Lal, AIR 2000 SC 426 (para 12); Rosammal Issetheenammal Fernandez v. Joosa Mariyan Fernandez, AIR 2000 SC 2857 (paras 7, 9 and 10). 11 G. Royyalakshmamma v. R. Satyavani, (1970) 2 An WR 88. 12 Arab Ali v. Farid Ali, AIR 1961 Assam 48. 13 R. Jayapaul v. Pappayee Ammal, AIR 2004 Mad 6, 7 : 2003 (2) Mad LJ 47 : 2003 (2) Mad LW 655 : 2003 (7) All Ind Cas 373.

12. EXCEPTIONS TO THE ABOVE RULE The rule enshrined in this section is however, subject to certain exceptions. P HIPSON enumerates the exceptions in para 40-18, p. 1086-88--13th edition. The exceptions with reference to Indian Law may be stated as hereunder: 5)   When the opponent by his prior conduct is estopped from denying execution. The adverse party may be estopped from disputing the document by the recital in a deed to which he is a party and under which he has acquitted some benefit on the faith of the document recited being valid. 5)   When although producing it, the opponent claims an interest under the same instrument in the cause: his claim of interest predicates an admission of its validity or genuineness. 3)   When the document is tendered against a public officer, who is bound by law to have it executed and who has dealt with it as a document duly executed. 3)   When the attesting witness has signed the instrument merely in pursuance of a rule in some court and such court has subsequently recognised the validity of the instrument by act ing upon it. 3)   When the attesting witness refuses to testify; where the attestator is privileged not to testify and thus is not compellable and where the attestor, though not

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privileged, nevertheless refuses to testify, the proponent should be excused, provided it is made to appear that there is no collusion. 2)   When the party to an attested document has admitted the execution of the document for purpose of the trial (vide Section 70). 2)   When the document is proved to be in the possession of adverse party and he refuses to produce it after notice. Then the secondary evidence can be given in which case the court also be presumed due execution and attestation unless and until it is disproved. (vide Section 65 & Section 89). The person refusing to produce the document cannot be allowed to rebut the presumption by his producing the document subsequently without the consent of the opposite party or the order of the court. (Vide Section 164). 1)   When the document is thirty years old and where the court presumes under Section 90 about the attestation then proof can be dispensed with. 1)   When the attesting witness is dead or is not available on account of any physical or legal obstacle like imprisonment, insanity, infirmity, blindness, absence of jurisdiction, etc., the proof of execution by attesting witness can be dispensed with and may be proved by other means (vide Section 69). 10)   When the attesting witness does not recollect or denies the execution. (Vide Section 71). 11)   In the case of wills when probate is granted by a competent court, it would be sufficient evidence of the validity and contents of the will and in such cases attestation need not be proved. (Vide Exception 2 of Section 91).

13. SHALL NOT BE USED These words mean that the document cannot be used in a suit for enforcement of the document, leaving the ordinary provisions of law in Section 67 to apply where the document is to be used for any other purpose. Although a document cannot be used in evidence as a mortgage deed, which requires attestation, yet this section does not prevent it from being used in evidence for the purpose of proving it as an acknowledgement saving limitation. 14 14 Shyam Lal v. Lakshmi Narain, AIR 1939 All 269.

14. WILLS--PROOF The propounder has to be called upon to show by satisfactory evidence that the Will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the disposition and put his signature to the document of his own free will and the document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. This is the mandate of section 68 of the Evidence Act and the position remains the same even in a case where the opposite party does not specifically deny the execution of the document in the written statement; 15 though this does not rule out examining more than one attesting witness. 16 Proof of the will is to be made either in the Court of law or any procedure known to law provided under the Registration Act without which no right can be acquired under it. 17 Will is a document which has to be proved by primary evidence except where the Court permits it to be proved by leading secondary evidence. Since it is required to be attested as provided under this section, it cannot be used as evidence until one of the attesting witnesses at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence. In addition, it has to satisfy the requirements of Sections 63 of the Indian Succession Act , 1925. In order to assess as to whether the Will has been validly executed and is a genuine document, the propounder has to show that the Will was signed by the

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testator and that he had put his signatures to the testament of his own free will; that he was at the relevant time in a sound disposing state of mind and understood the nature and effect of the dispositions and the testator had signed in the presence of two witnesses who attested it in his presence and the presence of each other.18 The requirement of Section 68 of the Evidence Act in proving of Will is to produce at least one of the attesting of witnesses. It does not require to produce all attesting witnesses and the scribe as well. 19 The onus of proving a will is on the propounder. Proof of the signature of the testator, the testamentary capacity, and at the time of execution the testator was in a sound and disposing state of mind have to be proved. 20 The testator should speak not only about the testator's signature of affixing his mark to the will, or somebody else signing it in his presence and by his direction, but that he had attested the will after taking acknowledgement from the testator of his signature or mark. He should also depose that each of the witnesses had signed the will in the presence of the testator. The attestor's participation even at the time of registration does not dispense with the proof of execution and attestation of a will in accordance with Section 6821 and the propounder has to examine at least one attesting witness to prove this. 22 Where the fact of giving instructions for preparation of the will by the testator and his presenting it for registration after acknowledging the execution of it, were proved and there being no vitiating circumstances to rebut the presumption as to the regularity of its execution or to the same or to throw any doubt about it, the finding about it being validly executed called for no interference. 23 Where Sub-Registrar deposed that the testatrix had admitted her signature on Will in his presence and the person identifying the testatrix had also deposed that he signed the document as identifying witness and that she was in sound disposing state of mind at the time of execution of Will attesting witness admitted that he attested the document of the testatrix, it could not be held that the respondent failed in discharging the burden to establish that the Will and codicil were executed by the testatrix. 24 Where the attesting witnesses stated that the Will was signed by the testator and the attesting witnesses in the presence of each other in one setting before the Sub-Registrar, execution of the Will was proved. 25 Where the evidence of attestor established that the testator acknowledged the execution of the Will and his signature at the time of registration, the Will in question was registered in his handwriting and the testator had given reason for bequeathing the house in favour of the younger son i.e. the attitude of the eldest son, the Will was held to be duly executed. 26 When a question arises as to whether a Will is genuine or forged, normally the fact that nothing can be said against the reasonable nature of its provisions will be a strong and material element in favour of the probabilities of the Will. 27 Section 68 is mandatory and one attesting witness at least has to be called to prove the execution. Where the only living attesting witness omits to testify, such omission cannot be cured with evidence of other witnesses like the scribe, or a beneficiary under the will. 28 Mere proof of the signature of the testatrix is not sufficient. It is required to be proved that she put her signature intending to bequeath the property in the manner indicated. Initial burden is on the propounder of the Will to prove execution and mere proof of attestation does not prove "due execution in each and every case". 29 Where the Will was notarised but the notary was not examined which was not explained, it was held that merely because of appearance of the signature of the testatrix it could not be assumed that she had duly signed the Will after knowing the contents thereof. 30 Where one of the attesting witnesses though examined turned hostile and did not support the execution of the Will, and other such witness though was alive was not compelled or summoned to prove the same, the scribe and sub-registrar who had come to depose before the Court regarding writing of the document and due registration of the document, could not be held to have proved due attestation as required under law. 31 Where attesting witness was shown to have subscribed his signature on the will and he was neither present when the will was written nor he had seen the testator executing the signature on the will, the document was held to be not duly proved as it was essential that the witness must have put his signature animo attestandi i.e. , for the purpose of attesting that he had seen the testator signing the will or had received from the testator's personal acknowledgment of his signature on the document. 32 The statement of the scribe of a will can be taken to be the statement of an attesting witness. 33 Where deposition of a hostile witness showed that he had scribed the Will and attested the same and he identified the testator before the Sub-Registrar at the time of its registration and he also identified his own signature on the Will; such deposition of a hostile witness was held to be admissible in evidence

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and the Will was held to be scribed by the said hostile witness and was duly executed in accordance with the requirement of law. 34 Where the attesting witnesses of a will were not examined to prove its execution, examination of the identifying witness who had seen the process of the testator executing and signing the will in his presence, was held to be not sufficient to prove its execution. Besides there were suspicious circumstances. 35 The propounder of a Will has to remove all suspicious circumstances. Suspicion means doubt, conjecture or mistrust. But the fact that natural heirs have either been excluded or a lesser share has been given to them, by itself without anything more, cannot be held to be a suspicious circumstance especially in a case, where the bequest has been made in favour of an offspring. 36 The suspicion alleged must be one inherent in the transaction itself and not the doubt that may arise from conflict of testimony which becomes apparent on an investigation of the transaction. Suspicious circumstances cannot be defined precisely or enumerated exhaustively. They must depend upon the facts of each case (para 20) and may be regarding the genuineness of the signature of the testator, the condition of the testator's mind, the disposition made in the Will being unnatural, improbable or unfair in the light of the relevant circumstances, or there might be other indications in the Will to show that the testator's mind was not free. (para 16) Whether a Will has been executed by the testator in a sound and disposing state of mind, is purely a question of fact, which will have to be decided in each case on the circumstances disclosed and the nature and quality of the evidence adduced. (para 20) 37 Even though one of the attesting witnesses of a Will was produced in Court at the pre-trial stage but he was neither examined-in-chief after framing of issues nor was crossexamined and there was presence of serious doubt regarding the signatures of the testator on Will, executed on the date close to the death of the testator, the due execution of the Will was held to be as not proved. 38 Where the testamentary capacity of the executant was doubted in view of the paralysis attack suffered by him, the registration endorsements do not completely prove that the will was read over to the executant and understood by him and the plaintiff failed to establish the mental capacity of the testator, it was held that due execution of the will as required under this section was established by the defendants and the will was not invalid. 39 Where the propounder who was the beneficiary under the will examined only one attestor as required under Section 68 and did not examine other witnesses, it was held that the propounder was under a duty to examine all available witnesses and to produce the best available (witness and to produce the best available) evidence in support of the execution of the will 40 but where the will was registered and was duly proved as per requirement of law, it was not necessary to examine the advocate who drafted the will and the typist who typed it. 41 The requirement of law would be fully satisfied if only one of the attesting witnesses is examined to prove the Will. In the instant this requirement was satisfied as no infirmity was found in the testimony of the only witness examined. Mere non-examination of the typist, who was neither an attesting witness nor was it anybody's case that the testator had put her thumb impression in her presence, or that of the advocate, present at the time of preparation or registration of the will, could not be a ground to discard the Will. Besides, the defendants adduced no evidence as to the testator suffering from any ailment at the relevant time which impaired her mental faculties. It was held that the genuineness of the Will could not be doubted. 42 In a case, a perusal of the Will showed that the signatures of the Registering Officer and that of the identifying witnesses affixed to the registration endorsement were sufficient attestation. The endorsement by the Sub-Registrar that the executant had acknowledged before him the execution, amounted to attestation. The signatures and thumb impressions of the identifying witnesses were also taken on the document. After all this, the Sub-Registrar had signed the deed. All the witnesses deposed that they had signed as identifying witnesses and that the testator was in sound disposition of mind. It was held that the Will was proved; 43 and merely because of minor contradictions in the testimony of the witnesses while giving details of the execution of the will, their testimony could not be discarded and the finding of the High Court that the Will was validly executed, being based on facts and on appreciation of evidence, did not call for interference. 44 Where one attesting witness is able to prove the execution of the Will, the examination of other attesting witnesses can be dispensed with; but where one attesting witness examined to prove the Will under this section fails to prove its due execution, then the other available attesting witness has to be called to supplement his evidence to make it complete in all respects, otherwise there will be deficiency in meeting the mandatory requirement of this section. 45

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On a harmonious interpretation of the relevant provisions of the Succession Act and the Evidence Act, it can safely be laid down that for proper proof of a will at least one of the attestators, if alive, should be examined and that whatever is not proved through him should be proved through other evidence, direct or circumstantial. 46 Where a certified copy of the will reciting the factum of adoption was sought to be relied on, it was held that proof of execution of the will is essential. 47 When the Sub-Registrar by his evidence proved a certified copy of a will, it was held that the execution of the will and the disposing state of the mind of the testator were proved. 48 It was held that when all the surviving attestors were examined in proof of the execution of the will, non-examination of the scribe is of little consequence. 49 In the former Jaipur State prior to 1943 there was no Succession Act or any law requiring a will to be attested. Dealing with a case of a will of that State, it was held that when the scribe of the registered will deposed that he wrote the will on the instructions of the testatrix who later affixed her thumb impression after he had read over and explained the will to her, the will should be held to be duly proved. 50 Where the testator had put his signature at the end of the will after the schedule of the properties was set out in it and thereafter the attestators had put their signatures, it was held to be duly executed. Failure of the testator to sign on one of the pages of the will would not make the will incomplete or inoperative. 51 Although in a proceedings for probate of the will one attesting witness as required by Section 81 of the Succession Act was examined, an affidavit should be filed by the attesting witness proving the execution as required by Section 68 in the regular proceedings. 52 If Section 68 of the Evidence Act requires a party to produce the Will in evidence by examining an attestor, the petitioners cannot be permitted to mark such a document in their examination-in-chief without marking the same through an attestor. 53 Where a plaintiff produced a will but it was not exhibited, and the defendant made use of the will in cross-examination of the plaintiff and it was marked as an exhibit at the instance of the defendant, it was held that the defendant must be taken to have waived the requirement of formal proof. 54 Where the execution of the Will was admitted by the defendants, failure to bring the attestor to the witness box to depose about its execution was held to be not fatal. 55 Where the original will was not produced and the only attesting witness produced stated that he was not aware of the execution or being thumb marked of any will by the testator and the propounder failed to prove the tastator's disposing mind free from extraneous influences and his sound disposing mind when he executed the will, the will could not be said to have been proved. 56 Where original Will was destroyed due to the gross lapse on the part of the appellant, the same could not be proved by mere filing a certified copy of it issued from a Court of Munsif, especially when no attesting witness was produced except the appellant herself to prove the Will. 57 Where the attesting witness denied the execution of the will, it was held that the execution can be proved by other evidence 58 and where the evidence of the attesting witness is vague, the Court cannot conclude that the will has not been proved. It should take into consideration all the circumstances before reaching any conclusion. 59 Where there was no evidence with regard to the attestation or attesting witnesses of the Will, the order of holding the Will as not duly proved, was held to be proper. 60 Where beneficiaries under the Will had dictated the Will to the scribe and testator prior to his death had been continuously ill for about 2-3 months and died a day after execution of the Will, the Will could not be held to be executed by the testator of his own free Will. 61 The executor of the Will was only twenty years of age and died within one and a half month of the execution. The Will was attested by a total stranger who had come to purchase cloth in the local market. These were strong suspicious circumstances operating against the Will. Besides, other attesting witnesses were neither produced nor admitted to cross-examination and signature of the executor on the Will also was not found to be genuine. It was held that the Will could not be said to be duly proved. 62 Where after typing the Will at the testator's residence in the presence of the Registrar, other formalities of attestation and execution were done and the evidence showed that the propounder of the Will could not prove that the two attesting witnesses saw the testator sign the Will rather they themselves had signed the same in the presence of the testator. It was held that

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execution and attestation of the Will was not proved. 63 Where the Will was executed in suspicious circumstances disinheriting the sole legal heir without any reason and the alleged attesting witness did not say that the testator admitted its correctness when the Will was read over to him. It was held that it could not be termed as a valid document. 64 An alleged sale deed was executed on the basis of an unregistered Will. The suit property was an undivided Joint Hindu Family property and belonged to the husband of the defendant. No evidence was produced to prove the execution of the Will. Whatever evidence was produced was unbelievable. It was held that the petitioner purchaser on the basis of such a Will was not entitled to any share. 65 The proviso to Section 68 is not applicable in the case of wills, but, as the will is a document required by law to be attested the main provision in Section 68 is applicable. The expression 'called' in the section is not used in the sense of 'summoned'. The expression 'clearly' means tendered for the purpose of giving evidence. If one of the attesting witnesses had not been called for the purpose of proving its execution, the will is not admissible as evidence under Section 68. 66 Where it was alleged that there was conspiracy with the witnesses to concoct the will, it was held that when the terms of the will are natural and proper and the execution and attestation was proved by disinterested witnesses; the testamentary capacity was established, conspiracy to concoct to the will could not be attributed. 67 In the absence of suspicious circumstances like undue influence or fraud or coercion, surrounding the execution of the will, the proof of testamentary capacity and signature of the testator as required by law are sufficient to discharge the onus. 68 Where the testator lived for nearly five years after the execution and registration of the will without making any attempt to cancel it and the evidence of the attestors was found to be credible, mere fact the plaintiff accompanied the testator on the date of its execution does not create suspicion as to influence or doubt as to its genuineness. 69 However, it was held that since the registration of a Will is not compulsory, it is not a suspicious circumstance, but absence of signatures of testator's wife and his brother's wife as well as of the defendant without any explanation thereto though presence of these persons was admitted by the plaintiff, was held to be certainly a suspicious circumstance with regard to execution of the Will. 70 If the proof as envisaged by Section 68 falls short of the legal requirements, it cannot be taken into consideration. 71 In a proceeding to obtain probate of a will be a legatee, one of the three brothers named as opposite parties filed no objection affidavit for the issue of probate, and three attesting witnesses supported the genuineness of the will; it was held that the petitioner/legatee is entitled to the grant of probate. 72 Where the bequest was in favour of wife and children excluding the eldest son from inheritance, and one of the attesting witnesses denied attestation in the presence of the testator, it was held that when the terms of the will are rational and it was executed in sound state of mind, the legatees can be granted letters of administration. 73 In the instant case also, the testator had bequeathed his house to his youngest son, excluding the two others one of whom was living at Bangalore and the other was residing separately at Delhi itself. The youngest son was dutiful and all along lived with his father and bowed to his every wish which probabilises the testator leaving his residential house to his youngest son, besides the Will was duly executed and proved and there was no unfair and unjust disposal of the property. The Court ordered probate to be granted to the profounder the youngest son. 74 Where a witness stated that a certain person cancelled his will through a publication in his newspaper on a certain date, neither the publication nor his statement was held to be sufficient proof of the will in question. 75 Where the will in question was a registered document of more than 30 years, with no suspicious circumstance regarding its execution and all the attesting witnesses and the scribe were dead, its genuineness was presumed. 76 Where the factum of the execution of will was challenged by a rank trespasser who was no relative of the testatrix, without any specific pleadings, except the bare denial of its execution. No other pleading was raised questioning the same disposing capacity of the testatrix at the relevant time and the two attesting witnesses were natural witnesses. Oral evidence showed that the beneficiary had taken care of the testatrix for the last 25-30 years. The Supreme Court set

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aside the findings of the Courts below based on suspicions and conjectures having no foundation in evidence and no relevance in the facts of the case that the will was not proved. 77 Where a party applied for the probate of a will, but did not wish to appear as a witness in the suit, it was held that in view of the position, the very question of priority of his examination first, loses its credence and the Court could proceed to examine the evidence in terms of Sections 67 and 68 of the Evidence Act . 78 A Will was executed in favour of the plaintiff and after the death of the testator, the defendant resisted on the ground that the Will was subsequently cancelled which was denied by the plaintiff. The cancellation of the Will was by an unregistered document and was not proved by any attesting witness. The court declined to interfere with the finding that the plaintiff was entitled to decree. 79 Where the defendants were neither related to the deceased testator nor were they his legal heirs, they could not call upon the plaintiff to prove the Will in accordance with Section 68 of the Evidence Act. 80 The widow of the deceased legatee filed an application for probate with a delay of 14 years and examined only one attestor for proving due execution of the Will. The signature of the testator on the Will tallied with his signature on other documents produced. An objection was filed that the deceased legatee had filed a matrimonial suit against the applicant widow, was held to be not tenable in the absence of any order of the court. A suit filed by the objector for partition of the property was not disposed of finally. It was held that mere delay in applying for probate cannot be taken as a ground to disprove due execution of the Will. 81 Mode of proving.-- The proving of execution of a Will does not only mean proving of the signatures of the executors and the attesting witnesses. It means something more. A Will is not an ordinary document. It although requires to be proved like any other document but the statutory conditions imposed by the reason of Section 63(c) of the Succession Act, 1925 and Section 68 of the Evidence Act cannot be ignored. Where, as in the instant case, the Will stated that distribution of legacies should be in terms of appendices to the Will but the appendices were not in existence at the time of purported execution of the Will, it was held that the question of proving such a Will could not arise. Moreover, unlike other documents even animus attestandi is a necessary ingredient for proving attestation of the Will. 82 In a proceedings involving allegations of forgery of a Will, the court has to consider not only genuineness of the Will but also the explanation to all suspicious circumstances surrounding thereto besides the proof thereof in the terms of Section 63(c) of the Succession Act, 1925 and Section 68 of the Evidence Act, 1872. 83 The court must satisfy its conscience as regards due execution of the Will by the testator and the court would not refuse to probe deeper into the matter only because the signature of the propounder on the Will is otherwise proved. The proof of Will is required not as a ground of reading the document but to afford the Judge reasonable assurance of it as being what it purports to be. 84 There exists a distinction where suspicions are well founded and the cases where there are only suspicions alone. Existence of suspicious circumstances alone may not be sufficient. The court may start with a suspicion and it should not close its mind to find the truth. A resolute and impenetrable incredulity is not demanded from the Judge even if there exist circumstances of grave suspicion. 85 15 Dharam Deo Yerma v. Yed Mitra Yerma, AIR 2008 (NOC) 287(Gau) . See also Y. Lakshminaryanan v. S.Y. Balasubramaian, (2009) 1 MLJ 966, 970 (para 12); K. Laxmanan v. Thekkayil Padmini, (2009) 1 SCC 354, 360-61 (para 18) : AIR 2009 SC 951; Babu Singh v. Ram Sahai, (2008) 14 SCC 754, 759 (para 14). 16 Babu Singh v. Ram Sahai, (2008) 14 SCC 754, 759 (para 14). 17 Lakshmi v. Asstt. Commissioner, Doddaballapur Sub-Division Bangalore, 2000 AIHC 462 (paras 1 and 2) (Kant). 18 Daulat Ram v. Sodha, (2005) 1 SCC 40, 43 (para 10) : AIR 2005 SC 233; See also Meenakshiammal v. Chandrasekaram, (2005) 1 SCC 280, 287 (para 19) : AIR 2005 SC 52; Kasturibai D. Wankhade v. Sheshrao Pandhari Zamre, AIR 2006 Bom 350, 351 (paras 9 and 10); Radhamma v. H.N. Muddukrishna, AIR 2006 Kant 68, 81 (para 42); Benga Behera v. Braja Kishore Nanda, (2007) 9 SCC 728, 739-40 (para 40); Kamal Narayan Saini v. Sushil Bai, AIR 2007 (NOC) 1725(Chh) ; C. Ananda Sundaraman v. C. Thirupurasundari, AIR 2008 (NOC) 2658(Mad) ; Niranjan

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Umeshchandra Joshi v. Mrudula Jyoti Rao, (2006) 13 SCC 433, 447 (paras 32 and 33); Madhukar D. Shende v. Tarabai Aba Shedage, (2002) 2 SCC 85; Sridevi v. Jayaraj Shetty, (2005) 2 SCC 784. 19 Pt. A.K. Misra v. Pt. Ram Chandra Sharma Trust, 2003 AIHC 1820, 1823 (para 9) (All) : AIR 2003 All 96, 100. 20 Yenkatachala v. Thimmajamma, AIR 1959 SC 443; Purnima v. Khagendra, AIR 1962 SC 567; Shashi Kumar v. Subhodh Kumar, AIR 1964 SC 529; Gorantla v. Thotakura, AIR 1968 SC 1332; Susama v. Anath, AIR 1976 Cal 377; Ajit Kumar v. Mukunda Lal, AIR 1988 Cal 196; Dinesh Kumar v. Khajan Singh, AIR 1988 Delhi 273; Medhi v. Lakheswar Nath, AIR 1976 Gau 74; Meenakshiammal v. Chandrasekaran, (2005) 1 SCC 280, 286 (para 16) : AIR 2005 SC 52; Y. Lakshminarayanan v. S. Y. Balasubramanian, (2009) 1 MLJ 966, 970 (para 14); Bharpur Singh v. Shamsher Singh, (2009) 3 SCC 687, 695-96 (para 15) : AIR 2009 SC 1766. 21 K. Nookaraju v. P. Yenaktrao, AIR 1974 AP 13; dissented in K.M. Yarghese v. K.M. Oommen, AIR 1994 Ker 85 (paras 55 and 75); Jagadish v. Rajendra, AIR 1975 All 395; Girja Datt Singh v. Gangotri Datt Singh, AIR 1955 SC 346; Illyas v. Badshah alias Kamla, AIR 1990 MP 334; Yumnam Ongbi Tampha Ibema Devi v. Yumnam Joykumar Singh, (2009) 4 SCC 780, 790 (para 17). 22 Ravi Shanker v. Rajendra Kumar Dubey, 1999 AIHC 3499 (paras 12 and 13) (MP); Bharpur Singh v. Shamsher Singh, (2009) 3 SCC 687, 695 (para 14) : AIR 2009 SC 1766. 23 Baburajan v. Parukutty, AIR 1999 Ker 274 (para 6). 24 Maria Stella v. T. Joseph Catherine, AIR 2003 Mad 270, 277, 278. See also Swapan Kumar Nandan v. Ram Kishore Dubey, AIR 2008 (NOC) 1163(Cal) ; Kandadai Tirumalacharya v. Kandadai Venkatachari, AIR 2008 (NOC) 2896(AP) ; Om Prakash v. Man Singh, 2008 AIHC 802(P & H) . 25 Sundariya Bai Choudhary v. U.O.I., AIR 2008 MP 227, 231 (para 26). 26 Mahagopal Singh v. Neela Singh, AIR 2009 (NOC) 558(AP) . See also Faggan v. Bhagwan Sahay, AIR 2009 (NOC) 272(All) : 2008 (5) ALJ 517; Swapan Kumar Nandan v. Ram Kishore Dubey, 2009 AIHC 63(NOC) (Cal) . 27 Meenakshiammal v. Chandrasekaran, (2005) 1 SCC 280, 287 (para 20) : AIR 2005 SC 52. 28 Harish Chandra v. Basant Kumar, AIR 1974 Ori 170; Mathew Jacob v. Salestine Jacob, AIR 1998 Del 390 (para 6); R. Chinnadurai v. S. Rajalakshmi, AIR 2004 Mad 313, 318 paras 19 & 20 : 2004 (2) Mad LJ 51 : 2004 (4) Mad LW 186 : 2004 (2) Civ LJ 612; Sohan Singh v. Amrik Singh, AIR 2005 P&H 176, 178 (paras 4 & 5). 29 Josephine Jorome v. S. Santiago, AIR 2007 (NOC) 2486(Mad) . 30 Josephine Jorome v. S. Santiago, AIR 2007 (NOC) 2486(Mad) . 31 Robert D'Mello v. Henry D'Mello, AIR 2004 Kant 78, 88 (para 34) : 2003 AIR Kant HCR 2808 : 2003 (11) All Ind Cas 329 : 2003 (3) civi Court Cas 396 : 2003 (2) Hindu LR 642 : 2003 (5) Kant LJ 232 : 2003 (4) KCCR 2738 : ILR 2003 Kant 3153 following N. Kanaluru v. Ayyesami, AIR 2001 SC 2802 : (2001) 7 SCC 503. See also Karanail Singh v. Bishan Singh, AIR 2008 (NOC) 1631(P & H) . 32 B. Rajegowda v. H.R. Shankaregowda, AIR 2006 Kant 48 (para 15 & 19) : 2006 AIHC 401(Kant) . 33 Dhyan Chand v. Savitri Devi, AIR 1998 HP 37 (para 16). 34 Madhab Bohora v. Braja Kishore Nanda, AIR 2003 Ori 107, 113 (para 9). 35 Narayanamma v. Mayamma, 1999 AIHC 3942 (paras 8, 10 and 11) (Kant). See also Shantilal v. Mahendra Kumar, 2002 AIHC 2028, 2033 (para 16) (Raj), relying on Thakkar Vrajlal Bhimjee v. Thakkar Jamnadas Valijee, (1994) 4 SCC 723. 36 Uma Devi Nambiar v. T.C. Sidhan, (2004) 2 SCC 321, 333 (para 16) : AIR 2004 SC 1772, relying on P.P.K. Gopalan Nambiar v. P.P.K. Balakrishnan Nambiar, 1995 Supp (2) SCC 664 : AIR 1995 SC 1852; Pushpavathi v. Chandraraja Kadamba, (1973) 3 SCC 291 : AIR 1972 SC 2492 and Rabindra Nath Mukherjee v. Panchanan Banerjee, (1995) 4 SCC 459. See also Meenakshimmal v. Chandrasekaran, (2005) 1 SCC 280, 286 (para 16) : AIR 2005 SC 52; Adivekka v. Hanamavvea Kom Venkatesh , (2007) 7 SCC 91, 99 (para 28); B. Venkatamuni v. C.J. Ayodhya Ram Singh, (2006) 13 SCC 449 : (2006) 11 Scale 148; Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao, (2006) 13 SCC 433 : (2006) 14 Scale 186; Apoline D'Souza v. John D'Souza, (2007) 7 SCC 225, 230 (para 13); Joseph Antony Lazarus v. A.J. Francies, (2006) 9 SCC 515; S. Sankaran v. D. Kausalya, (2007) 9 SCC 284 : (2007) 3 Scale 186; Banga Behera v. Braja Kishore Nanda, (2007) 9 SCC 728; Savithri v. Karthyayani Amma, (2007) 11 SCC 621; Babu Singh v. Ram Sahai, AIR 2008 SC 2485, 2486-87 (para 11); V. Lakshminarayanan v. S. V. Balasubramanian, (2009) 1 MLJ 966, 970 (para 12); K. Laxmanan v. Thekkayil Padmini, (2009) 1 SCC 354, 361 (para 19) : AIR 2009 SC 951.

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37 Meenakshiammal v. Chandrasekaran, (2005) 1 SCC 280, 287 (paras 16 and 20) : AIR 2005 SC 52. See also Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao, (2006) 13 SCC 433, 447-48 (para 34); H. Venkatachala Iyengar v. B.N. Thimmajamma, AIR 1959 SC 443; Management Committee, T.K. Ghosh's Academy v. T.C. Palit, (1974) 2 SCC 354 : AIR 1974 SC 1495. 38 Sampuran Singh v. Kartar Singh, AIR 2005 NOC 492 (P&H) : (2005) 3 Punj LR 153. 39 Radhamma v. H.N. Muddukrishna, AIR 2006 Kant 68, 81 (para 42). 40 Venkatarama Raju v. Narasa Raju, (1966) 2 An WR 134. 41 Ravi Shanker v. Rajendra Kumar Dubey, 1999 AIHC 3499 (para 23) (MP). 42 Ramabai Padmakar Patil v. Rukminibai Vishnu Vekhande, AIR 2003 SC 3109 (para 9) : (2003) 8 SCC 537. See also Mahabir Saha @ Mahabir Prasad Sah v. Tapan Saha, 2005 AIHC 1844, 1848 (para 22) (Jhar). 43 Pantakota Satyanarayana v. Pantakota Seetharatnam, AIR 2005 SC 4362, 4369 (paras 24 and 25) : (2005) 8 SCC 67. 44 Durga v. Anil Kumar, (2005) 11 SCC 189, 190 (paras 6 and 9). 45 Janki Narayan Bhoir v. Narayan Namdeo Kadam, AIR 2003 SC 761 (paras 9 and 10) : (2002) 3 SCC 91, reversing S.A. No. 409 of 1985, dated 26.10.1994 (Bom). 46 Kuttiappa v. Krishnan, (1970) 1 Ker 313. 47 Braj Raj Singh v. Yogendrapal Singh, AIR 1952 MB 146. 48 Mehtab Singh v. Amrik Singh, AIR 1957 Punj 146. 49 R. Kameswara Rao v. B. Surya Prakasa Rao, AIR 1962 AP 178; relying on Kristo Gopal v. Baidya Nath, AIR 1939 Cal 87. 50 Bajji (Mst.) v. Bhairon, AIR 1957 Raj 261. See also K. Munirathnam Naidu v. K. Aadi Lakshmamma, AIR 2006 (NOC) 658(AP) : 2005 (6) Andh LD 534. 51 Baburajan v. Parukutty, AIR 1999 Ker 274 (para 7). 52 In the Goods of Edwin Carlow Marulline , (1953) 1 Cal 185. 53 Y.M. Neelakantiah v. State of Karnataka by Chief Secretary, 2007 AIHC 512 (para 4) (Kant). 54 Chunilal Ojha v. Mulsankar Ojha, ILR 1961 Cut 635. 55 Minor Mani v. Ammakannu, AIR 2008 (NOC) 2434(Mad) . 56 State of Haryana v. Raj Kaur, AIR 2001 P&H 322 (para 28). Evidence of attesting witness not inspiring confidence, Will not proved, Sau. Parvatabai B. Raimande v. Anjanabai G. Hiware, AIR 2009 (NOC) 1264(Bom) . 57 Anthoniammal v. Appavu (A) Anthoniswamymaniakaran, 2004 AIHC 1566, 1568 (paras 7 & 8) (Ker). 58 Ananth Raj Hegde v. Dharmapala Hedge, (1965) 2 Mys LJ 112. 59 K.M. Yarghese v. K.M. Dommen, AIR 1994 Ker 85 (para 52). 60 Simon v. George, AIR 2004 NOC 406(Ker) : 2003 (2) Cur CC 117 : 2003 (1) Ker LT 718 : 2003 (1) Ker LJ 378 : (2003) 2 Ker 622 : 2003 (2) Hindu LR 143. See also Sarabjeet Kaur v. Gurmel Kaur, AIR 2009 (NOC) 889(P&H) . 61 Balbir Singh v. Kashmir Singh, AIR 2004 NOC 504 (P&H) : 2004 (2) Hindu LR 173 : 2004 (3) Punj LR 35 : 2004 (3) Rec Civ R 45. 62 Mahendra Pratap Singh v. Yirnedra Pratap Singh, 2006 AIHC 2413, 2418 (paras 17 and 18) (All). 63 Omkar Prasad v. Bhoodhar Prasad, AIR 2007 (NOC) 524(Chh) . See also S.S. Srivastava v. State, AIR 2007 (NOC) 1846(Del) ; J.T. Surappa v. Satchidhananadendra, AIR 2008 (NOC) 2433(Kar) : 2008 (4) AIR Kar R 480. 64 Sham Singh v. Rano Devi, AIR 2007 (NOC) 621(HP) . 65 S. Meenakshi Sundaram v. Yalliammal, AIR 2009 (NOC) 2012(Mad) .

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66 Ruprao v. Ramrao, AIR 1952 Nag 88; Kamalakshy v. Madhavi Amma, 1980 Ker LT 493(Ker) .. 67 R. Kameswara Rao v. B. Surya Prakash Rao, AIR 1962 AP 178; relying on Govind Prasad v. Bala Kunwar, AIR 1934 PC 12; Chotey Narain Singh v. Ratan Koer, (1894) 22 Cal 519(PC) . 68 Ajit Kumar v. Mukunda Lal, AIR 1988 Cal 196; Manorama v. Saroj, AIR 1989 All 17. 69 Ramkrishna Shivaram Hegde v. F.M. Ganapathi Shivaram Hegde, 1999 AIHC 3795 (paras 7, 8 and 18) (Kant). 70 Vallabh v. Ginni Devi, AIR 2004 Raj 286, 292 (para 20) : 2004 (2) Raj LW 1326 : 2004 (2) Raj LR 15 : 2004 (2) WLC 641. 71 Gullan Devi v. Puna, AIR 1989 J&K 51; Rameshwari Devi v. Shyam Lal, AIR 1980 All 292. 72 Tilak Raj v. Shambhu Nath, AIR 1987 Del 360. 73 Mathew v. Devassy Kutty, AIR 1988 Ker 315. 74 Rajesh Arora v. State, AIR 2009 Del 111, 118 (paras 30 and 31). 75 Chandan v. Longa Bai, AIR 1998 MP 1. 76 Kesarapu Manikyalu v. Venna Perumallayya, 2000 AIHC 590 (paras 4 and 8) (AP) : AIR 2000 NOC 20(AP) . 77 Madhukar D. Shende v. Tarabai Aba Shedage, AIR 2002 SC 637 (paras 8-10, 14 and 15) : (2002) 2 SCC 85. 78 N.C. Kaladharan v. Kamaleshwaran, (2002) 10 SCC 186 (paras 3 and 4). 79 Ramakrishnan v. Susilammal, AIR 2007 (NOC) 548(Mad) . Will duly proved, Palaniammal v. Sundarambal, AIR 2007 (NOC) 2460(Mad) ; V. Lakshminarayanan v. S.V. Balasubramanian, (2009) 1 MLJ 966, 974 (para 32). 80 S. Ganesan v. S. Kuppuswamy, AIR 2009 (NOC) 1375(Mad) . 81 C. Saradambal v. Padmavathi, AIR 2009 (NOC) 1376(Mad) . 82 Anil Kak v. Kumari Sharada Raje, (2008) 7 SCC 695 (paras 49, 55 and 60), relying on B. Venkatamuni v. C.J. Ayodhya Ram Singh, (2006) 13 SCC 449; Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao, (2006) 13 SCC 433 and Adiveka v. Hanamavva Kom Venkatesh, (2007) 7 SCC 91. See also Ramautar v. Ram Naresh, AIR 2009 (NOC) 2102(MP) . 83 Syed Askari Hadi Ali Augustine Imam v. State (Delhi Administration), (2009) 5 SCC 528, 543 (para 42), relying on Lalitaben Jayantilal Popat v. Pragnaben Jamnadas Kalaria, (2008) 15 SCC 365. See also B. Venkatamuni v. C.J. Ayodhya Ram Singh, (2006) 13 SCC 449, 460 (para 25). 84 Niranajan Umeshchandra Joshi v. Mrudula Jyoti Rao, (2006) 13 SCC 433, 448 (paras 35 and 36), relying on B. Venkatamuni v. C.J. Ayodhya Ram Singh, (2006) 13 SCC 449 : (2006) 11 Scale 148. 85 Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao, (2006) 13 SCC 433, 448 (para 37), relying on H. Venkachala Iyengar v. B.N. Thimmajamma, AIR 1959 SC 443.

15. CODICIL Codicil is an instrument made in relation to a Will. It has the effect of explaining, altering or adducing to the dispositions made by a Will. By fiction of law, the codicil, though it may have been executed separately and at a place or time different from the Will, forms part of the related Will. 86 Execution .-- Since a codicil forms part of the related Will, it would be anomalous to accept the contention that, though a Will is required to be executed and proved as per the rules contained in the Succession Act and the Evidence Act but a document (codicil) explaining, altering or adding to the Will and forming part of the Will, is not required to be executed or proved in the same manner. The same rules of execution are applicable to a codicil which apply to a Will to which the codicil relates. So also the evidence adduced in proof of execution of a codicil must satisfy the same requirements as apply to proof of execution of a Will. 87

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Attestation .-- The Registrar of Deeds who has registered a document in discharge of his statutory duty, does not become an attesting witness to the deed solely on account of his having discharged the statutory duties relating to the registration of a document. However, a Registrar can be treated as having attested to a Will if his signature or mark appears on the document akin to the one placed by an attesting witness and he has seen the testator sign or affix his mark to the Will or codicil or has received from the testator a personal acknowledgment of his signature or mark and he had also signed in the presence of the testator. In other words, to be an attesting witness, the Registrar should have attested the signature of the testator in the manner contemplated under Section 63(c) of the Indian Succession Act 1925. The Registrar of Deeds, before he be termed an attesting witness, shall have to be called in the witness box.88 Proof of attestation .-- On account of registration of a document, including a Will or codicil, a presumption as to its correctness or regularity of attestation cannot be drawn. If in the facts and circumstances of a given case the Registrar of Deeds satisfies the requirement of an attesting witness, he must be called in the witness box to depose to the attestation. His evidence will be liable to be appreciated and evaluated like the testimony of any other attesting witness. In the instant case, the facts being otherwise, the codicil was not proved and it cannot have the effect of explaining, altering or adding to the depositions made by the Will. 89 The registration of a document does not dispense with the need of proving the execution and attestation of a document which is required by law to be proved in the manner as provided in Section 68of the Indian Evidence Act , 1872. 90 86 Bhagat Ram v. Suresh, AIR 2004 SC 436 (para 16). 87 Bhagat Ram v. Suresh, AIR 2004 SC 436 (paras 16 and 17). 88 Bhagat Ram v. Suresh, AIR 2004 SC 436 (paras 21 and 22). 89 Bhagat Ram v. Suresh, AIR 2004 SC 436 (paras 24 and 25). 90 Bhagat Ram v. Suresh, AIR 2004 SC 436 (para 23).

16. SCRIBE OR IDENTIFYING WITNESS AS ATTESTING WITNESS Different views were expressed by different High Courts on the question as to whether, and if so in what circumstances, a scribe can be treated as an attesting witness. One view is that the scribe cannot be treated as an attesting witness, even though the deed may in fact have been executed in his presence. A contrary view was expressed in other cases. A third view is that the scribe may perform a dual role; he may be an attesting witness as well as a writer. Though the prima facie inference in a case where a person describes himself as the scribe, is that he signs as the writer and nothing else, it can be shown that he signed not only as a writer, but as a witness of the fact that he saw the document executed or received an acknowledgement from the executant that he had executed it. 1 The Supreme Court has clarified the position in: Abdul Jabbar v. Venkata Sastri . 2 It observed: "This was an appeal against the judgement of the High Court where on a reference Full Bench had to consider the question whether an earlier decision of a Full Bench in Veerappa Chettiar v. Sobrahmanya Ayyar , 3 required reconsideration. The Full Bench in an opinion reported in (1961) 2 MLJ 78 [ H. Venkata Sastri v. Rahilna Bi, 4 ] observed: "In our opinion, such signatures of the registering officer and the identifying witnesses endorsed on a mortgage document can be treated as those of attesting witnesses if (1) the signatories are those who have seen the execution or received a personal acknowledgement from the executant of his having executed the document, (2) they sign their names in the presence of the executant and (3) while so doing they had the animus to attest. The mere presence of the signatures of the registering officer of the identifying witnesses on the registration endorsements would not by themselves be sufficient to satisfy the requirements of a valid attestation; but it would be competent for the parties to show by evidence that any or all of these persons did in fact intend to and did sign as attesting witness as well".

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Abdul Jabbar v. Venkata Sastri, 5 it is observed at page 111: "It is essential that the witness should have put his signature animo attestandi , that is, for the purpose of attesting that he has seen the executant sign or has received from him a personal acknowledgement for some other purpose, e.g., to certify that he is a scribe or an identifier or a registering officer, he is not an attesting witness". "In every case the court must be satisfied that the names were written animo attestandi ." 6 Evidence is admissible to show whether the witness had the intention to attest. "The attesting witnesses must subscribe with the intention that the subscription made should be complete attestation of the will, and evidence is admissible to show whether such was the intention or not. 7 " The Supreme Court held that the two persons who had identified the testator at the time of the registration of the will and had appended their signatures at the foot of the endorsement by the sub-registrar, were not attesting witnesses, as their signatures were not put " animo attestandi ". 8 Subscribing a signature on the part of the scribe cannot be equated with that of the signature of an attesting witness which is the requirement of the statute. 9 The Calcutta High Court has held that a person who had put his name under the word "scribe" was not an attesting witness, as he had put his signature only for the purpose of authenticating that he was a "scribe"; 10 but where the scribe/attesting witness has stated before the Court in his evidence on oath that the testator was known to him since long as usual visitor to the office where he was working and that the Will was prepared in the presence of the testator who had subscribed his signature in his presence as well as in presence of his colleague and he also signed in presence of the testator and his colleague who had seen him signing, and his colleague had also seen the testator as well as him the signing of the Will and his colleague had also attested the document by signing it in his presence and in the presence of the testator. The Will has been held to be duly proved. 11 However, where the scribe of a Will deposed in cross-examination that Will was not registered in his presence and he did not go to the office of Sub-Registrar and there was no explanation or evidence on record to show that the attesting witnesses were dead or were not traceable, it was held that the scribe could not be held to be an attesting witness. 12 The Privy Council held that the legatees who had put their signatures on will in token of their consent to its execution were not attesting witnesses and were not disqualified from taking as legatees. 13 The Supreme Court had to consider whether the Sub-Registrar before whom the executant admitted execution at the time of registration and the identifying witnesses could be considered as attesting witnesses. The Supreme Court observed that prima facie the registering officer puts his signature on the document in discharge of his statutory duty under Sections 59 of the Registration Act , and not for the purpose of attesting it. In that case, it was not proved that he put his signature with the intention of attesting the document. Similarly the identifying witnesses were not shown to have put their signatures for the purpose of attesting the document. Therefore the Sub-Registrar and the identifying witnesses were not treated as attesting witnesses. The Supreme Court cited with approvalSurendra Bahadur Singh v. Thakur Behari Singh . 14 In M. Venkatasubbiah v. M. Subbamma, 15 the judges relied on Paramhansa v. Krishna 16 ; Ayyaswami Iyengar v. Kyalaswami Pilla . 17 The decision of the Supreme Court was followed in Rajyalakshmamma v. Satyavani 18 in which it was pointed out that the view expressed in M. Venakta Subbaiah v. M. Subbamma 19 cannot be approved in view of the decision of the Supreme Court dissenting from Jarnail Singh v. Narain Singh 20 ; see also K. Nookaraju v. P. Venkatarao . 21 In cases coming under the Transfer of Property Act , where the document becomes complete and valid only on registration, the Sub-Registrar and the identifying witness of registration may not become attesting witnesses, but in a case where the document is a will (which is excluded from the proviso) which does not require registration, the Sub-Registrar and the identifying witnesses, if they conform to the law regarding attestation, may become attesting witnesses. 22 In the absence of evidence to prove that the identifying witnesses were present at the time of act ual execution of the document; their attestation will not prove due execution of the document. If signatures of the two persons appearing at the foot of the endorsement of the registration of a will, were of the same persons who attested the document as required under Section 68, then it can be construed that they have appended their signatures in their capacity as attesting witnesses to the will. 23

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Where the scribe read over the contents of the Will and thereafter, the executant signed the document and thereafter, the scribe signed the same, it was held that the evidence of the scribe could be treated as that of an attestor. 24 1 Badri Prasad v. Abdul Karim, (1913) 35 All 254; Ram Bahadur Singh v. Ajodhya Singh, (1916) 20 CWN 699(Patna) ; Dalichand v. Lotu, (1919) 22 Bom LR 136 : ILR 44 Bom 405 : AIR 1920 Bom 294; Amardas Mangaldas v. Harmanbhai Jethabhai, (1942) 44 Bom 643 : AIR 1942 Bom 291; Paramasiva Udayan v. Krishna Padayachi, (1917) 41 Mad 535 : AIR 1918 Mad 491; Jagannath Khan v. Bajrang Das Agarwala, AIR 1921 Cal 208 : (1920) 48 Cal 61; Abinash Chandra v. Dasarath Malo, (1928) 56 Cal 598 : AIR 1929 Cal 123; Dhruba Sahu v. Paramanada Sahu, AIR 1983 Ori 24, the Court adding that it is not necessary for the attesting witness to add that he signed in the presence of the executant. Ujagar Singh v. Chanan Singh, AIR 1986 P&H 230; Venkatasubbiah v. M. Subbamma, AIR 1956 Andhra 195; Ayyaaswami v. Kyalaswami, AIR 1915 M 1052 (1); Nirade Mohan v. Charu Chandra, AIR 1950 Cal 401; Umrao v. Bakshi Gopal Bux, AIR 1957 Raj 180; Alagappa Chettyar v. Ko Kala Pai, (1940) Rang 199 : AIR 1940 Rang 134; Yacubkhan v. Guljarkhan, (1927) 52 Bom 219 : (1928) 30 Bom LR 565. 2 AIR 1969 SC 1147 : (1969) 2 An WR 107 SC. 3 AIR 1929 Mad 1 : ILR 52 Mad 123. 4 AIR 1962 Mad 111(FB) . 5 (1969) 2 An WR 107. 6 See J ARMAN ON W ILLS , 8th Edn. 137. 7 See T HEOBALD ON W ILLS , 12th Edn. page 129. 8 Girja Datt v. Gangotri Datt, AIR 1955 SC 346, 351. 9 N. Kamalam v. Ayyasamy, AIR 2001 SC 2802 (paras 26 and 27). 10 Abinash Chandra v. Dasarath Malo, AIR 1929 Cal 123 : ILR 56 Cal 598. See also Union of India v. Debika Guha, AIR 2000 SC 3522 (1) (para 2); Chikkan v. A.R. Perumal, AIR 2005 NOC 43(Mad) : (2004) 3 Mad LJ 662; Mahabir Sah alias Mahabir Prasad Sah v. Tapan Saha, AIR 2005 NOC 233(Jhar) : Jhar HCR 660 : 2005 AIHC 1844, 1849 (para 23) (Jhar). 11 Augustions v. Joseph, AIR 2005 Ker 204, 205 (para 8). 12 Mohd. Yusuf v. Board of Revenue, Allahabad, AIR 2005 All 199, 201 (para 8). 13 Shiam Sundar Singh v. Jagannath Singh, (1928) 54 MLJ 43. 14 (1939) 2 MLJ 762. The decision of the Supreme Court was followed in Valliammal v. Rakkia Gounder, (1991) 2 MLJ 478; see also Mira Bai v. Jai Singh, AIR 1971 Raj 303; Sakharam v. Sushila Bai, AIR 1953 Nag 339; Dharmdas v. Kashinath, AIR 1959 Cal 243; Rajammal v. Chinnathal, AIR 1976 Mad 4. 15 1956 An WR 195 : AIR 1956 Andhra 195. 16 1918 Mad 491. 17 1915 M 1052. 18 (1970) 2 An WR 88. 19 (1956) Andhra 195. 20 1984 P&H 181. 21 AIR 1974 AP 13. 22 Ammu D/o P. Konnu v. Krishnan S/o T. Kunhunni, AIR 1965 Ker 32; Ruprao v. Ramarao, AIR 1952 Nag 88 (a case of will); Umarao v. Bakshi Gopal Bux, AIR 1957 Raj 180. 23 Gurnam Singh v. Ass Kaur, AIR 1977 Punj 103. 24 Peddavandla Narayanamma v. Peddasani Venkata Reddy, AIR 2007 AP 137, 140-41 (para 13).

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Ratanlal & Dhirajlal: Law of Evidence, Updated 23rd Edition/THE INDIAN EVIDENCE ACT (ACT 1 OF 1872)/PART II ON PROOF/CHAPTER V OF DOCUMENTARY EVIDENCE/S. 69.

CHAPTER V OF DOCUMENTARY EVIDENCE S. 69. Proof where no attesting witness found. If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person. 1. PRINCIPLE AND SCOPE

This section gives an alternative method of proof of documents required to be attested by law. It applies: (1) if no such attesting witness can be found; (2) if the document purports to have been executed in the United Kingdom. In these two cases, it must be proved that the attestation of one of the attesting witnesses at least is in his handwriting. It should also be proved that the signature of the person executing the document is in the handwriting of that person. This means any person who can identify the signature and the handwriting of the executant and of one attesting witness's signature, can prove the document according to this Section. This Section has to be read with Section 68 which deals with the question of proof of a document which requires attestation. 25 The Evidence Act was enacted when India was a part of the British Empire. Reference to the United Kingdom in this and other sections still appear. This anachronism should be removed by suitable amendments. Apparently, this aspect has escaped the attention of our legislators. In case of death of attesting witnesses, the genuineness of a Will can be proved by way of available oral or documentary evidence, if such evidence was legally acceptable. 26 This section would come into play when no attesting witness can be found. 27 Where none of the attesting witnesses of a document is available, this section declares that the signature of at least one of them must be proved by a witness. 28 Where one of the attesting witnesses of a will was not examined and the other refused to support the will, the scribe of the will and the doctor who certified the testator's mental condition to execute the will could be viewed as attesting witnesses from their testimony validating the execution of the will. 29 Due diligence on the part of the party is required in tracing the attesting witnesses. The court must be satisfied that, in spite of diligent search, they could not be found. Then only one can take the aid of this section. 30 The party should exhaust all the processes of the court to compel the attendance of any one of the attesting witnesses, and only when it is not possible to produce that witness, either legally or physically, this section can be availed of. 31 Section 69 can be invoked only when the absence of the attesting witnesses is sufficiently accounted for. If the attesting witness denies the signatures or does not recollect the execution of the document, its execution may be proved by other evidence. 32 The law of attestation of wills is contained in Section 63(c) of the Indian Succession Act , and the mode of proving the documents required by law to be attested has been laid down inSections 68 to 72 of the Evidence Act. Nothing in these provisions makes it a necessary element in proof of attestation

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that the signatures of the attesting witnesses of a will should be identified. 33 Where there was no suspicion as to the unnaturalness of or tampering with a more than 30 year old will whose executant and the attesting witnesses were not alive, presumption could be raised in favour of it. 34 The words "if no such attesting witness can be found" are not very appropriate; they must be interpreted to include not only cases where the witnesses cannot be produced because they cannot be traced, but cases where the witness, for reasons of physical or mental disability, or for other reasons, which the court considers sufficient, is no longer a competent witness for the purpose, as is provided in Section 88 of the Evidence Act . 35 Where the executant, who was an illiterate, denied execution, and all the attesting witnesses were either dead or turned hostile or were not available, it was held that there was no rule of law which prevented a court from holding the execution proved, when the signature of the attesting witnesses were proved to the satisfying of the court, regard being had also to the circumstances of the case. 36 Where both the attesting witnesses of the Will had expired, the nature and proof would be as contemplated under Section 69 of the Evidence Act. 37 Where the executant of a Will and the attesting witnesses thereof were dead. Even if the signature of the testator on the Will was proved but signature of none of attesting witnesses was proved, the Will was held to be as not proved. 38 When there is neither evidence regarding attestation of a Will nor of its attesting witnesses, it was held that the Will was not duly proved. 39 Where original Will was not available to prove the handwritings of the testator and the attesting witnesses, the finding of the Court that the Will had not been duly proved under Sections 68 & 69 of the Evidence Act, could not be interfered with in appeal. 40 Where the executant and the attesting witnesses of a gift-deed were dead, execution of the document would be proved by the proof of the signature of at least one of the attesting witnesses and that of the executant. 41 When the signature of an attesting witness is proved, it is evidence of everything upon the face of the instrument, since it is to be presumed that the witness would not have subscribed his name in attestation of that which did not take place. 42 Where all the three attesting witnesses as well as the scribe of a Will were not alive, and the persons who were acquainted with signatures of the attestators were examined and they had identified the signatures of the attestator on the Will, the Will was held to be duly proved. 43 25 Parumal v. Abdul, AIR 1929 Sind 235. See also K. Laxmanan v. Thekkayil Padmini, (2009) 1 SCC 354, 364 (para 32) : AIR 2009 SC 951; Bharpur Singh v. Shamsher Singh, (2009) 3 SCC 687, 698 (para 19) : AIR 2009 SC 1766. 26 V. Lakshminarayanan v. S.V. Balasubramanian, (2009) 1 MLJ 966, 972 (para 24). 27 Doraiswami v. Rathnammal, AIR 1978 Mad 78. See also Babu Singh v. Ram Sahai, (2008) 14 SCC 754, 759 (para 17). 28 Bhuban Chandra Medhi v. Ramdas Medni, (1967) 19 Assam 10. 29 Surindar Singh v. Anup Singh, 2001 AIHC 4551 (paras 20, 22, 24 and 25) (P&H). 30 Bam Jassa Kunwar v. Sahu Narain Das, AIR 1946 All 178; Uttam Singh v. Hukam Singh, 39 All 112 : AIR 1917 All 89; Venkatramanyya v. Kamisetti Gattayya, AIR 1927 Mad 662; Muthuraman v. Subramanian, AIR 1933 Mad 612; Bhairon Singh v. Ganga Narain, AIR 1935 All 527; Yenkataraman Raju v. Narasa Raju, (1966) 2 An WR 134. (a case of a will) 31 Harekrishna v. Jogneshwar Panda, AIR 1939 Cal 688. No such steps taken, no relaxation, Babu Singh v. Ram Sahai, AIR 2008 SC 2485, 2487 (para 16), reversing 2006(1) Pun LR 592. 32 Sita Dakuani v. Ramachandra Nahak, ILR 1967 Cut 593. 33 Krishna Kumar v. Kayastha Pathshala, AIR 1966 All 570. 34 Haradhan Mahatha v. Dukhu Mahatha, AIR 1993 Pat 129 (paras 10, 12 and 15). 35 Bam Jassa Kunwar v. Sahu Narain Das, AIR 1946 All 178. 36 Ponnuswami v. Kalyanasundara, AIR 1930 Mad 770; see contra: Gobardhan v. Horilal, ILR 35 All 364.

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37 Rukmini Bai v. Umabai Shankar Jadhav, AIR 2008 (NOC) 829(Kar) : 2008 (1) AIR Kar R 594. See also L. Bakthavatsalam v. R. Alagiriswamy, AIR 2008 (NOC) 733(Mad) . 38 Jayanti Gogoi v. Pranti Daura, AIR 2004 Gau 23, 25 (para 13) : 2003 (3) Gau LR 620 : 2004 (15) All Ind Cas 761. 39 Simon v. George, AIR 2004 NOC 406(Ker) : 2003 (4) All Ind Cas 121 : 2003 (2) Civil Court C 89 : 2003 (2) Cur CC 117 : 2003 (2) KHCA CJ 108 : 2003 (1) Ker LT 718 : 2003 (2) Hindu LR 143. 40 Anthoniammal v. Appavu (A) Anthoniswamymaniakaran, 2004 AIHC 1566, 1568 (para 7) (Ker). 41 T.R. Srikantaiah Setty v. Balkrishna, 1999 AIHC 3477 (para 12) (Kant). 42 Ponnuswami v. Kalyanasundaram, 1934 Mad 365(FB) ; Abdulla Paru v. Gannibai, 11 Bom 690; Nooruddin v. Mahomed Oorner, 1956 Bom 641. 43 Sulochana Tai v. Sundar, AIR 2005 Kant 226, 228 (para 8).

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CHAPTER V OF DOCUMENTARY EVIDENCE S. 70. Admission of execution by party to attested document. The admission of a party to an attested document of its execution by himself shall be sufficient proof of its execution as against him, though it be a document required by law to be attested. 1. PRINCIPLE AND SCOPE

Unlike the English rule that the attesting witnesses must be called though the execution of the document is admitted by the party to it, this section states that if the party admits execution of an attested document it shall be sufficient proof of its execution as against him, though it be a document required by law to be attested. This section is an exception to the general rule contained in Section 68 which states that "If a document is required by law to be attested, it shall not be used as evidence until one attesting witness atleast has been called for the purpose of proving its execution." This exception must be read in the light of the words used in it and by so reading the section, the meaning is that an examination of an attesting witness will not be necessary for the purpose of proving the execution of the document required by law to be attested if the executant admits the execution. 44 This section operates where the person relying on a document has not given any evidence at all of the due execution of the document by the executant but relies on an admission of execution by the latter. If a mortgagor admits execution of a document in the written statement, it is wholly unnecessary for the mortgagee to adduce any evidence as to the execution of the document. Where the execution of a mortgage bond was admitted by the executant, it was held that there was no necessity to call any attesting witness. 45 Where the defendant admitted the execution in the written statement it was held that the document should be taken as proved even though the attesting witness stated that the executant did not sign in his presence. 46 Where a document was proved and marked as exhibit and no objection was raised by the claimants regarding admissibility of the document and even no suggestion was given while examining the witness that the document was not an authentic one it was held that the document was admissible in evidence and it would be treated as admitted document. 47 The word used in Section 70 is "execution" of a document and not "signature" of the executant as used in Section 69. Admission of "execution" in this section was held not only to mean an admission of signature but also the valid attestation of the signature by the two witnesses as required by law. 48 Where an accused admitted the signature on a certain document in a statement prepared in English, it was held that the admission of mere signature on the document by itself does not prove the contents thereof, that the accused did not know the English language but signed on it, and that in the absence of the attesting witnesses being examined the document could not be treated as proved. 49 Admission of signature does not dispense with the proof of attestation as required by law. 50 A reading of this section shows that it applies only to a document duly attested. It was observed those words (of Section 70) apply only to a document duly attested. The mortgage deed here in question

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was not, in a legal sense attested; for it was merely signed by persons who professed to be witnesses to its execution, although in truth and in fact they were not so". 51 An attested document means a duly attested one and the execution that is contemplated in this section is a due execution or execution in accordance with what the law requires for a particular document, so if a question of attestation is put in issue, it is incumbent on the plaintiff to prove that the document has been duly attested before this section can be relied on. 52 Admission of execution is binding against the executant only and not on others. claiming through him are not bound by such admission.

53

The persons

Signature of the executant of mortgage bonds is required by Sections 59 of the Transfer of Property Act to be attested by two witnesses. Under Section 68 of this Act at least one attesting witness should be called to prove the document by stating that it was duly attested, then only on the strength of the evidence given by the attesting witness, the provisions ofSection 70 can be invoked. 54 Where it appears on the face of a document or it is positively made out by the evidence on record that a document required by law to be attested has not been attested in accordance with law this section cannot be applied in spite of the admission of party to an attested document of its execution by himself for the simple reason that a Court cannot shut its eyes to obvious facts appearing on the face of a document or on the record. 55 "Admission" referred to is admission of a validly attested document which means that when a party admits execution of the documents, he thereby not only admits the mere signing thereof but also the entire series of act s which would give validity to the document concerned. 56 The Bombay High Court has held that there is no reason for holding that where a party admits execution within the meaning of Section 70,he must necessarily be taken to admit that the document has been attested as required by Sections 59 of the Transfer of Property Act . When the defendant disputes the claim generally, but does not dispute the execution or attestation, proof of the document can be dispensed with. 57 When the execution is admitted and the attestation on the bond as required by law is denied the attestation must be strictly proved. 58 The Madras High Court has held that the legislature contemplates a distinction between admissions made for the purpose of dispensing with proof at the trial and evidentiary admission, the scope and purpose of the two classes of admissions are distinct. The one relates to relevancy and the other relates solely to proof at the trial. 59 The above case referred to an old decision 60 wherein it was observed: "The attesting witness must be called to prove the execution of a deed for this reason, that by an imperative rule of law, the parties are supposed to have agreed inter se that the deed shall not be given in evidence without his being called to depose to the circumstances attesting its execution. If, therefore, the attesting witness is not called, the deed cannot be read, because this agreement cannot be broken; but any agreement may be waived by the parties to it. If, then, in the course of the proceedings in the cause, the party to the deed admits the execution or if by his pleadings he does not require the execution to be proved, he may be very reasonably said to have waived the agreement, and the other party, accepting the waiver, does not call the attesting witness, in equity an admission in the defendant's answer is sufficient, and is a waiver of the agreement; but, where bill and answer are the pleadings, and the defendant has put the execution of the deed in issue, and he is called and compelled as a witness to prove the fact, how can that be put reasonably as a waiver of the agreement not to give the deed in evidence without calling the attesting witness. Manifestly it is no waiver at all". The Calcutta and the Allahabad High Courts have held that the word admission relates only to the admission of a party in the course of the trial of a suit, and not to the attestation of a document by the admission of the party executing it. In other words, it has no relation to any admission of execution made before an attesting witness without reference to any suit or proceeding. 61 But the Patna and the Rangoon High Courts have laid down that an admission under this section is admissible in evidence

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even though it be an admission not made in the course of legal proceedings pending before a Court of Justice, but is an admission made antecedent to the institution of legal proceedings. 62 The Madras High Court has adopted the view of the Calcutta and the Allahabad High Courts and held that the admission within the meaning of this section must be an admission made for the purpose of or having reference to the cause either in the pleading or during the course of the trial. Admission should be by a party. --Admission of execution contemplated in Section 70 relates only to the person who has act ually executed or purported to have executed the document. 63 An admission by the heir of the executant would not serve the requirement of law and the benefit of the section would not be available. 64 Interpretation of words in a receipt for payment of rent does not make it inadmissible.

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S IR , J AMES S TEPHEN in his digest of the law of evidence in (Art. 66) states "that the attesting witness can be dispensed with only in cases where the admission has been made for the purpose of or having reference to the cause". 44 Asharfi Lal v. Narnhi, 44 All 127 : AIR 1922 All 153(1); Satishchandra v. Jogendra Nath, AIR 1917 Cal 693; Raja Ram v. Thakur Rameshwar Bakhsh Singh, (1936) 12 Luck 109; Bharpur Singh v. Shamsher Singh, (2009) 3 SCC 687, 698 (para 19) : AIR 2009 SC 1766. 45 Somasundaram v. Muthirulappa, AIR 1933 Mad 432; Ramanand Rai v. Deputy Director of Consolidation, (1978) 1 All 467 (a case of will). 46 Ramlal v. Septi, AIR 1926 Pat 295. 47 State of Bihar v. Mithu Kewat, 2003 AIHC 3889, 3890 (para 7) (Jhar). 48 Arjun Chendre v. Kaildas Chendra, AIR 1923 Cal 149; Hira Bibi v. Ram Hari Lal, AIR 1925 PC 203; Harinath Ghosh v. Nepal Chandra Rai, 41 Cal WN 306 : (1937) 1 Cal 507. 49 State of Orissa v. Bhourilal, (1962) 1 CrLJ 835. 50 Lachman Singh v. Surendra Bahadur, AIR 1932 All 527(FB) . 51 Heera Bibi v. Rambari, AIR 1925 PC 203. 52 Davood Rowther v. Ramanadhan Chettiar, (1938) Mad 523 : AIR 1938 Mad 43. 53 Arjun Sahu v. Keleirath, (1922) 2 Pat 317; Rajyalakshmi v. Satyarani, (1970) 2 An WR 88; Jagannath v. Ravji, (1922) 24 Bom LR 1296 : 47 Bom 137; Bhagwandas v. Basawpuram, (1956) 58 Bom LR 809. 54 Arjun Chandra v. Kailas Chandra, AIR 1923 Cal 149; Davood Rowther v. Ramanathan, AIR 1938 Mad 43; Hare Krishna Panigrahi v. Jogneswar Pande, AIR 1939 Cal 688; Harinath Ghosh v. Nepal Chandri Rai, (1937) 1 Cal 507. 55 Rajaram v. Thakur Rameshwar, (1936) 12 Luck 109; Mg. Po Gyi v. Mg. Min Din, AIR 1927 Rangoon 233. 56 R. Nahak v. Sitadakuam, AIR 1970 Ori 82; Sita Dakuani v. Ramachandra Nahak, ILR 1967 Cut 593; Harinath Ghosh v. Nepal Chandre Rai ; (1937) 1 Cal 507 : 41 Cal WN 306. 57 Jagannath v. Ravji, ILR 47 Bom 137. 58 Benoy Bhushan v. Dhirendre Nath Dey, AIR 1924 Cal 415; Komalsingh v. Krishnabai, AIR 1946 Bom 304; Ebrahim Mondal v. Akshay Konor, 40 Cal WN 151. 59 Davood Rowther v. Ramanathan, AIR 1938 Mad 43. 60 Whyman v. Garth, 1953 8 EX 803. 61 Abdul Karim v. Saliman, (1899) 27 Cal 190; Rai Mangal Misra v. Mathura, Dulhan, ILR (1915) An 383; see Asharfi Lal v. Musumma Nanhi, (1921) 44 All 127. 62 Nageshwar Prasad v. Bachu Singh, (1919) 4 Pat. LJ 511; doubted in Musututal Hira Bibi v. Ramdhan Lal, (1921) 6 Pat. LJ 465; Aung Aung Krwa Pra, (1923) 1 Ran 557. 63 Hava v. Lokumal, AIR 1944 Sind 61.

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64 (1975) 1 Cut WR 8. 65 Kuri Lal Rungta v. Banarsi Devi, AIR 1986 All 94. See also, Chandra Muli v. Bhabhvni Prasad, 1943 oudh 416; Thiswari v. Chandra, (1948) Bom 322; Ammu v. Krishnan, (1969) Ker LT 656 : 1969 Ker LJ 562; Banwasi Prasad v. Bigni Kuer, AIR 1927 Pat 131; Gandham Rajyala Kshmamma v. Rayanapati Satyauani, (1970) 2 An WR 88.

2. THE ADMISSION MUST BE UNQUALIFIED The admission to be effective under this section must be unqualified. It was held that mere admission of thumb impression or the signatures on a blank sheet of paper, as stated by the executant does not mean an admission of execution which means that the executant must have signed or put his thumb impression after the document is fully read out. 66 Where the mortgagor while admitting the signature denied due attestation, it was held that marking the document as an exhibit without objection, could not absolve the mortgagee from proving due attestation, as the admission was a qualified one. 67 66 Radhanath v. Madhusudan, AIR 1956 Ori 58; Narayanappa Minor by father Ramaiah v. Lachamakka, ILR 1958 Mys. 263. 67 Rajani Kanta v. Bohbehari Sarkar, AIR 1952 Cal 7; Arjun Chandra v. Kailash Chandra, AIR 1923 Cal 149.

3. CERTIFIED COPIES OF ADMISSION The admission of the executant incorporated in the certificate of the Registering Officer is evidence of execution, but mere production of a certified copy of such endorsement of the Registering Officer is not enough to prove execution. 68 The certificate of admission of execution endorsed by the Registering Officer, cannot be used as an admission within the meaning of Section 70, though it may be prima facie evidence under Section 71. 69

68 Rajeshwari v. Varalakshmamma, AIR 1964 AP 284. 69 Deorao v. Dhondirao, AIR 1928 Nag 244; Banwari Lal v. Bigni, AIR 1927 Pat 131; Thimmauua v. Channavva, AIR 1948 Bom 322; Rajmangal Migir v. Mathura Dubain, AIR 1915 All 383; Sarja v. Murlidhar, 42 IC. 715; Bhikari v. Sudhir, 42 Cal WN 1055.

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CHAPTER V OF DOCUMENTARY EVIDENCE S. 71. Proof when attesting witness denies the execution. If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence. 1. PRINCIPLE AND SCOPE

S TEPHEN in his Digest (7th Ed., Art. 67, p. 78) gives three circumstances under which an attesting witness, though alive, need not be called upon, to prove the attestation and execution of a document. 6)   Where the parties admit the execution of the document for the purpose of the trial. 6)   Where the opponent is given a notice to produce the document and the opponent declines to produce it. 4)   Where such opponent produces the document on being so required, but claims an interest under the document with respect to the subject matter of the suit. To these may be added following instances where attesting witness need not be called: 7)   Where the document purports to be 30 years old. 7)   Where the party against whom the document is tendered is a public officer who is legally bound to get it duly executed and who has treated it as such. 5)   Where estoppel prevents the opponent from questioning the document by reason of a recital in it. This section enables the party to prove the document by other evidence when the attesting witness denies the execution of the document or does not recollect its execution. Section 67 of this Act deals with the proof of signature or the handwriting on the document. In the case of documents not required by law to be attested, one may take the aid of Section 67, but this section applies to all documents, whether they require attestation, or not, under any law. S TEPHEN in his Digest (7th Ed., Art. 68, P. 78) states: "where an attesting witness has denied all knowledge of the matter, the case stands as if there was no attesting witness, and the execution of the document may be proved by independent evidence aliunde 70 ." Where the attesting witness denied the attestation of the will, evidence of the scribe and the other witnesses was admissible to prove its execution. 71 This section is a sort of safeguard introduced by the Legislature to the mandatory provisions of Section 68, where it is not possible to prove the execution of the will by calling attesting witnesses, though alive. This section can only be requisitioned when the attesting witnesses, who have been called, fail to prove the execution of the will by reason of either their denying their own signatures, or denying the signature of the testator, or having no recollection as to the execution of the document.

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For the applicability of this section it would be incumbent on the party to call the attesting witness, in compliance with Section 68, which says that at least one attesting witness should be called for the purpose of proving the execution of the document. 72 However, the Gauhati High Court has held that, where direct evidence about execution of sale deed was not available or was beyond the means of the person trying to prove such execution, other evidence could be adduced to prove the existence of the sale deed. 73 Section 71 of the Evidence Act is in the nature of a safeguard to the mandatory provisions of Section 68, Evidence Act, to meet a situation where it is not possible to prove the execution of the Will by calling attesting witnesses, though alive. This Section provides that if an attesting witness denies or does not recollect the execution of the Will, its execution may be proved by other evidence. Aid of Section 71 can be taken only when the attesting witnesses, who have been called, deny or fail to recollect the execution of the document to prove it by other evidence. Section 71 has no application to a case where one attesting witness, who alone had been summoned, has failed to prove the execution of the Will and other attesting witnesses though are available to prove the execution of the same, for the reasons best known, have not been summoned before the Court. It is clear from the language of Section 71 that if an attesting witness denies or does not recollect execution of the document, its execution may be proved by other evidence. However, in a case where an attesting witness examined fails to prove the due execution of Will as required under Clause (c) of Section 63 of the Succession Act, it cannot be said that the Will is proved as per Section 68 of the Evidence Act. It cannot be said that if one attesting witness denies or does not recollect the execution of the document, the execution of Will can be proved by other evidence dispensing with the evidence of other attesting witnesses though available to be examined to prove the execution of the Will. Yet, another reason as to why other available attesting witnesses should be called when the one attesting witness examined fails to prove due execution of the Will, is to avert the claim of drawing adverse inference under Sections 114,Illustration (g) of Evidence Act . Placing the best possible evidence, in the given circumstances, before the Court for consideration, is one of the cardinal principles of Indian Evidence Act . Section 71 is permissive and an enabling Section permitting a party to lead other evidence in certain circumstances. ButSection 68 is not merely an enabling section, it lays down the necessary requirement, which the Court has to observe before holding that a document is proved. Section 71 is meant to lend assistance and come to the rescue of a party who had done his best, but driven to a state of helplessness and impossibility cannot be let down without any other means of proving due execution by "other evidence" as well. At the same time Section 71 cannot be read so as to absolve a party of his obligation under Section 68 read with Section 63 of the Act and liberally allow him at his Will or choice to make available or not a necessary witness otherwise available and amenable to the jurisdiction of the Court concerned and confer a premium upon his omission or lapse, to enable him to give a go-by to the mandate of law relating to proof of execution of a Will. 74 The Privy Council in Surendra v. Behari , 75 settled the question, in the event of one of two or more attesting witnesses being called and his denying the execution, or his not recollecting the execution whether it is permissible to give other evidence without calling the other attesting witnesses, if available. The Privy Council stated that there was no intention on the part of the Legislature to depart from the rule of English Law that other evidence should not be allowed, unless all the attesting witnesses alive, and subject to the process of the Court, are called or their absence has been satisfactorily explained. 76 It was further held by the Privy Council in the above case that registration proceedings can be relied upon under this section to prove due execution or attestation. In the case of a will, the attestor was declared hostile. It was held that other evidence, showing proper execution of the will, can be relied upon. 77 A will has got to be executed as required by Sections 63 of the Indian Succession Act , and is a document which is required by law to be attested. Section 68 of the Evidence Act requires that at least one attesting witness, if he is alive and subject to the process of the Court, should be called to prove the execution of a compulsorily attestable document. AsSection 71 is in the nature of an exception, when the attesting witness denies the execution of the will, it can be proved by other evidence. What weight should be given to such other evidence is a different matter. 78

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Where attesting witnesses were either dead or could not be brought to Court or could not recollect the facts, the secondary evidence to prove the Will was held to be permissible in evidence. 79 This section has no application where the attesting witness is not act ually before the court, because no question of his denying or failing to recollect the execution of the document can arise then. 80 Where the attesting witness stated that he had signed the Will but the executant deceased had not put his thumb impression in his presence, it was held that the same could not be termed as denial of execution or failure to recollect the same so as to attract Section 71 of the Evidence Act. 81 In the case of a will, it was held that, the words "execution of a will" comprehend the attestation in testator's presence; that, therefore, the testimony of a non-attesting witness under Section 71 is of no help, and the will must be held as not properly proved. 82 The section has no application when one attesting witness has failed to prove the execution of the will and other attesting witnesses are available who could prove the execution if they were called 83 , identification of the signature of the testator by a person knowing him, will only mean that the document contains the signature of the executor; that will not amount to proof of the execution of the document by a person by whom it purports to have been executed, as there is possibility of the executor's signature having been taken on blank paper or on a misrepresentation that the document represents a different transaction. 84 Where only one attesting witness examined in the case, did not prove the execution of the Will inasmuch as he did not prove the attestation of the Will by the other attesting witness who though available was not examined, the evidence of other witnesses, namely, that of the respondent who claims suit properties under Will and the scribe could not be considered under Section 71 of the Evidence Act . Section 71 has no application when the one attesting witness, who alone has been summoned, has failed to prove the execution of the Will and other attesting witness though available has not been examined. When the document is not proved as mandatorily required under Section 68 of the Evidence Act, the provision of Section 71 of the Evidence Act, which is permissive, and enabling a certain circumstance, does not help the respondent. The evidence of the only attesting witness, does not satisfy the mandatory requirements of Section 68 of the Evidence Act. 85

Under this section execution of a document includes attestation.

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The attestation of a document does not amount to an admission of its contents by the attesting person, unless it can be proved that the document was read over to him and that he made the attestation after being conscious of the statement made in the document. 87 There is no requirement that the attesting witnesses should identify each other.

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In P HIPSON on Evidence 15th Edn. (2000), Page: 1086, Para : 40-17 it is observed: "Where the witness has no recollection of the execution, but from seeing his signature has no doubt that it took place, this is sufficient proof. 89 And where a person who saw the execution, afterwards subscribed his name without the knowledge or request of the parties 90 ; or, where one of the latter had subscribed a fictitious name as witness, 1 the execution was allowed to be proved as if there were no witness, i.e. , by evidence of the handwriting of the party executing, or otherwise. If the attesting witnesses to a will refuse to make an affidavit of execution, the court may order their examination in court 2 ; or dispense with their evidence and accept that of the executor alone 3 . And where an attesting witness denies the execution, other evidence thereof is admissible, and the document may be upheld in spite of such denial 4 , though where the denial is distinct and positive and there is nothing to throw doubt upon it, the attestation will be rejected 5 . A party, however, is not bound to call a hostile attesting witness if there be another available 6 . Where both the attesting witnesses gave evidence that the testator did not subscribe the will until after they had done so, it was held that their evidence was not conclusive and other persons present could be called to prove that they were mistaken 7 . Where one of attesting witness though alive was unable to depose due to the nature of his disease and other attesting witness mixed up with the opposite party and deposed in his favour before the Assistant Collector and disputed the execution of Will, the evidence of the scribe assumed that of the attesting witness and did not remain mere scribe of the Will as his statement showed that testator was known to him and he wrote the Will under the instructions of the testator and he read over the contents of the Will to him before he thumb-marked the Will in token of its correctness and in the

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presence of the attesting witness who also signed in the presence of the testator. It was held that execution of the Will was proved. 8 In a case where the attesting witness of a mortgage deed was not examined on the ground that he was won over by the opposite party, it was held that it was not sufficient for consideration of other evidence to prove execution. 9 Where one attesting witness produced before Court turned hostile and the plaintiff failed to summon or compel the presence of other attesting witness who was alive to prove the execution of the Will, it was held that the benefit of Section 71 of the Evidence Act could not be invoked. 10 70 See Lakshman v. Krishnaji, (1927) 29 Bom LR 1425. 71 Chandan v. Longa Bai, AIR 1998 MP 1. 72 Banwari Lal v. Gopi Nath, AIR 1931 All 411; Hare Krishna Panigrahi v. Jogneswar Panda, AIR 1939 Cal 688. 73 Sapam O.L. Devi v. Takhellambem, AIR 2005 Gau 101, 107 (para 20). 74 Janki Narayan Bhoir v. Narayan Namdeo Kadam, AIR 2003 SC 761 (para 11), overruling Manki Kaur v. hansraj Singh, AIR 1938 Pat 301; approving Vishnu v. Nathu Vithal, AIR 1949 Bom 266 and followed in Benga Behera v. Braja Kishore Nanda, (2007) 9 SCC 728, 737 (para 28). 75 AIR 1939 PC 117. 76 See also Vishnu Ramkrishna v. Nathu Vital, (1948) 51 Bom LR 245 : AIR 1949 Bom 266. 77 B. Veeramma v. C. Ramakrishna, AIR 1976 AP 370; see also Maharaj Lal v. Anjuman, 48 IC 538; Jaikaran v. Protap, 43 Cal WN 1084; Chaitan Charan Parida v. Maheshwar Parida, AIR 1991 Ori 125. 78 Anantharaj Hegde v. Dharmapala Hegde, (1965) 2 Mys. LJ 112. 79 Maria Stella v. T. Joseph Catherine, AIR 2003 Mad 270, 275, 276 (paras 15, 24), following, Pateswari Prasad v. Shanker Dayal, AIR 1924 All 217. On this point the High Court discussed decisions of different High Courts including of its own Court. 80 Ram Ratan v. Bittan Kaur, AIR 1980 All 395. 81 Gurbachan Singh v. Gurdial Singh, AIR 2007 (NOC) 2322(P & H), relying on AIR 1962 SC 567 and AIR 1959 SC 443. 82 Harish Chandra v. Basant Kumar, AIR 1974 Ori 170. 83 Vishu Ramkrishna v. Nathu Vital, (1948) 51 Bom LR 245. 84 Doraiswami v. Rathnammal, AIR 1978 Mad 78. 85 Janki Narayan Bhoir v. Narayan Namdeo Kadam, AIR 2003 SC 621 (para 12) : (2002) 2 SCC 91, reversing S.A. No. 409 of 1985 dated 26-10-1994 (Bom), overruling Manki Kaur v. Hansraj Singh, AIR 1938 Pat 301 and approving Vishnu v. Nathu Vithal, AIR 1949 Bom 266. 86 Lakshman Sahu v. Gokul Maharana, (1921) 1 Pat 154; Ram Ratan v. Bittan Kaur, AIR 1980 All 395. 87 Roop Lal v. Shanker, (1951) 1 Raj 597. 88 Krishna Kumar v. Kayastha Patshala, AIR 1966 All 570. 89 See as to wills, Wright v. Sanderson, (1884) 9 PD 149; Woodhouse v. Balfour, (1888) 13 PD 2; Paton v. Ormerod, The Times, February 3, 1892 (CA); Whiting v. Turner, (1903) 89 LT 71. 90 M'Craw v. Gentry, (1812) 3 Camp 232. 1 Fassett v. Brown, (1790) 1 Peake 33. 2 Re : Sweet [1891] P. 400. 3 Re : Ovens, (1892) 29 LR 451.

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4 Coles v. Coles, (1866) LR 1 P&D, 70; Bowman v. Hodgson, (1867) LR 1 P&D 362; Dayman v. Dayman, (1895) 71 LT 699; Pikington v. Gray, (1899) AC 401; Goodisson v. Goodisson, (1913) 1 IR 218; cf. Whiting v. Turner, ante . 5 Wyatt v. Berry, (1893) P. 5; Cf. Woodhouse v. Balfour, 13 PD 2. 6 Belbin v. Skeats, 1 S&T 148. 7 Re Vere-Wardale, (1949) P. 395. 8 Ram Lal v. Mohinder Singh, AIR 2005 P&H 49, 51 (para 12 & 13). See also Balbir Singh v. Mohinder Singh Rathour, AIR 2008 (NOC) 1164(HP) . 9 Ram Ratan v. Bittan Kaur, AIR 1980 All 395. 10 Robert D'Mello v. Henry D'Mello, AIR 2004 Kant 78, 88 (para 34) : 2003 AIR Kant HCR 2808 : 2003 (2) Hindu LR 642 : ILR 2003 Kant 3153 : 2003 (5) Kant LJ 232 : 2003 (11) All Ind Cas 329 : 2003 (3) Civil Court C 396.

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Ratanlal & Dhirajlal: Law of Evidence, Updated 23rd Edition/THE INDIAN EVIDENCE ACT (ACT 1 OF 1872)/PART II ON PROOF/CHAPTER V OF DOCUMENTARY EVIDENCE/S. 72.

CHAPTER V OF DOCUMENTARY EVIDENCE S. 72. Proof of document not required by law to be attested. An attested document not required by law to be attested may be proved as if it was unattested. 1. PRINCIPLE AND SCOPE

This Section states that any attested document, if it is not required by law to be attested, may be proved as if it was unattested. Where the law does not require attestation, for the validity of a document, it may be proved by admission or otherwise, as though no attesting witnesses existed. Section 67, states that, if a document is alleged to be signed or to have been written, the signature or the handwriting on the document must be proved to be in his handwriting. If that is done the document would be taken to have been proved under Section 67. Even a document, which is attested but is not required by law to be attested can be proved without reference to Section 67. No attesting witness need be examined with reference to a document like a sale deed, as it does not require attestation. 11 A bond also, is not required by law to be attested. So Section 72 applies and Section 68 does not apply. 12 By virtue of Sections 129 of the Transfer of Property Act , Section 68 of EvidenceAct is not applicable to a gift made by a Mohammadan in compliance with the provisions of Mohammadan Law. Even if the gift is created by a registered deed, it can be proved without examining the attesting witness under Section 72 of the Evidence Act . 13 In P HIPSON on Evidence 14 it is stated that the rule embodied in Section 72 and applies only where all the parties are before the court, and that in proceedings ex parte the attesting witness must still be called. 15 11 Karuppiah v. Muthuaruppan, AIR 1975 Mad 221; see also Daitary Mohanti v. Jngo Bundho Mohanti, 23 WR 293. 12 Ramchandra v. Jhibal, AIR 1940 Nag 240; Shankarram v. Awadhsharanram, 1962 MP LJ 62(notes) . 13 1971 All WR (HC) 542. 14 15th Edn. (2000), P. 1088 (para 40-19). 15 Re : Reay 3 WR 312; Re lice 32 Ch. D. 35, Worthington v. Moore, (1891) 64 LT 338.

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Ratanlal & Dhirajlal: Law of Evidence, Updated 23rd Edition/THE INDIAN EVIDENCE ACT (ACT 1 OF 1872)/PART II ON PROOF/CHAPTER V OF DOCUMENTARY EVIDENCE/S. 73

CHAPTER V OF DOCUMENTARY EVIDENCE S. 73 Comparison of signature, writing or seal with others admitted or proved. In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing or seal has not been produced or proved for any other purpose. The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person. This section applies also, with any necessary modifications, to finger impressions. 1. PRINCIPLE AND SCOPE

The provisions of this section will apply only when a matter is pending before the Court and not otherwise. 16 The Court may compare the disputed signature, writing, or seal of a person with signatures, writings or seals which have been admitted or proved to the satisfaction of the Court to have been made or written by that person. A Court may rely upon its own comparison of the signature, writing, or seal, unaided by expert evidence. 17 The rule of prudence is that comparison of signatures by Courts as a mode of ascertaining the truth should be used with great care and caution. 18 This section does not infringe Art. 20[(]3[)] of the Constitution of India . 19 Handwriting can be proved in the following ways:-8)   By proof of signature and handwriting of the person alleged to have signed or written the document (S. 67). 8)   By the opinion of an expert who can compare handwritings (S. 45). 6)   By a witness who is acquainted with the handwriting of a person by whom it is supposed to have been written and signed (S. 47). 4)   By comparison of signature, writing or seal with others admitted or proved (S. 73). The writing obtained by the court under this section does not come within the expression 'evidence'.

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This section is based on the principles of English Law now in force which was adopted from the practice in the old ecclesiastical courts with some modifications in about 1854. The Supreme Court in State (Delhi Admn.) v. Pali Ram 21 , quoted with approval, T AYLOR ON E VIDENCE 22 , the passage in which it was observed: "Comparison of a disputed writing with any writing proved to the satisfaction of a judge to be genuine, shall be permitted to be made by the witness; and such writings and the evidence of the witnesses respecting the same, may be submitted to the Court and jury as evidence of the genuiness or otherwise of the writing in dispute".

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The Supreme Court further observed: "The first part of the section provides for the comparison of signature, writing, finger impression etc., purporting to have been written or made by a person with another admitted or proved to the satisfaction of the Court to have been written or made by the same person. But it does not say by whom such comparison may be made. Construed in the light of the English Law on the subject, which is the legislative source of this provision, it is clear that such comparison may be made by a handwriting expert (Section 45) or by one familiar with the handwriting of the person concerned (Section 47) or by the Court". The direct comparison by the court is contemplated under this section as an alternative method. For that purpose, the court is given the power to direct any person present in court to write any words or figures, for enabling the court to compare them with the words or figures alleged to have been made by such person. It is only a discretionary and enabling power as the expression "may direct" is used. When the court directs, if the person refuses to comply with it, adverse inference under Section 114 of the Act may be drawn. This section applies to both civil and criminal proceedings. In a proceeding for maintenance under Section 125,Cr PC., the husband denied a letter by him bearing on the question of marriage. It was held that the court has discretion to ask the husband underSection 73 of the act to give specimen signature for purpose of comparison by an expert. 23 The Supreme Court in State (Delhi Admn.) v. Pali Ram 24 observed: "The two paragraphs in the section are complimentary to each other and are not mutually exclusive. Section 73 is, therefore, to be read as a whole, in the light of Section 45, and so it is clear that a court can direct an accused, appearing before it, to give his sample writing to be compared by a handwriting expert chosen or approved by the court, irrespective of whether his name was suggested by the prosecution or the defence, to enable the court to reach its own conclusion with the assistance of the expert". Section 73 as a whole makes it clear in the light of Section 45 and 47, that the court does not exceed its power under Section 73, if in the interest of the justice, it directs a person appearing before it, whether it is a civil or criminal court, to give sample writing to enable the same to be compared by a handwriting expert. 25 For the application of the section, two conditions are to be satisfied. Firstly, the writing with which comparison is to be made, or otherwise called standard writing, should be one either admitted by the person alleged to have made the writing, or should be proved to have been written by the person to whom it is attributed. Secondly, the writing to be compared with the standard one must be shown to have been written by the same person, i.e., the writing itself must state or indicate that it was written by that person. 26 The ordinary methods of proving the handwriting are (1) by calling the person who wrote the document, or saw it written as a witness, or a person who is qualified to express an opinion according to Section 47; (2) by a comparison of handwriting under Section 73; and (3) by admission of the person against whom it was tendered. 27 Under Sections 45 and 73, the court is empowered to direct any party to give specimen signature or handwriting, with a view to getting the same compared with the disputed one, or for sending it to a handwriting expert. 28 There is no legal bar to the judge using his own eyes to compare the disputed writing with the admitted writing under Section 73. However, the opinion of the court arrived at is not conclusive and is liable to error. So the court as a matter of prudence and caution should hesitate or be slow to arrive its findings solely on the comparison made by itself. 29 To decide very vital claims of parties the judge should not compare the disputed handwritings with admitted handwriting so as to ascertain whether they are in the handwriting of one and the same person. 30

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This section deals with comparison of signature, handwriting, or seal of a person purporting to have been written or made by such person, with admitted or proved signature of that person. This section also applies with necessary modifications, to finger print impressions. The section thus provides one of the modes of proving the handwriting or the signature on a document. Section 45 provides another mode of proof as to the identity of handwriting or signature, with the aid of experts, whereas Section 47 enables proof of the handwriting or signatures of a person viz., by examining any person acquainted with such handwriting or signature. The mode of proof contemplated by Section 73 is by direct comparison of the disputed signature or handwriting with the one which is admittedly genuine or proved to be so. The second para of Section 73 enables the court to direct any person present in the court to write any words or figures for the purpose of enabling the court to compare the words and figures so written with any words, figures alleged to have been written by such person. But the use of the expression "may direct", in the second paragraph of Section 73 would indicate that the section is only an enabling provision. This does not mean that the court can compel the person to give specimen handwriting or signature under the section. The Magistrate has no power to ask an accused person, who is on bail, to go to a police station and give his specimen signature or handwriting; the powers of the magistrate and police officer are prescribed under some statutes and those powers cannot be enlarged. There is no provision for the exercise by them of a power under Section 73. 31 As the definition of "Sign" in Sections 3(56)General Clauses Act , includes a thumb impression, asSection 73 permitting comparison of signature, writing and seal is intended to be quite comprehensive, on a liberal interpretation, the presiding officer can compare thumb impressions for the purpose of determining the identity or otherwise of the thumb impressions, or at any rate for appreciating the evidence of experts. 32 The court can compare the disputed writing of a person with other writings, either admitted to be his by that person or proved to be of that person. 33 Where the Magistrate compared a disputed signature with another signature which was not admitted by the accused or was not proved to be that of the accused it was held that the finding of the magistrate was based absolutely on no legal evidence. 34 Where signatures on the document from which comparison of the signature of the testator on the Will was to be made, were not admitted by the plaintiff and the defendant, failed to prove the genuineness of the document, the defendant's application for seeking comparison of signatures at the belated stage of the case, was held to be not maintainable. 35 Where the defendants had denied signatures on the pronote and the signatures on them prima facie lacked natural movements and warranted analysis by a handwriting expert but the trial court had not resorted to Section 73 of the Evidence Act before passing the decree, it was held that the decree was liable to be set aside. 36 It is not open to compare the signatures on the documents which are not admitted in evidence and do not form part of record. In the instant case, the defendant's defence was struck off, so it was not permissible for the defendant to directly or indirectly seek to establish or prove defence, or the documents which do not form part of evidence and have not been admitted or proved or exhibited. 37 Specimen signatures and writings made by an accused person while he is in the custody of the police and while the police are investigating the offence are admissible in evidence at the trial of the accused for the offence of forgery. 38 It was held in the case of letters containing the disputed signature of a person G that the court is entitled to compare it with the signature of G on a postal acknowledgement cards where the court was satisfied that the postal acknowledgement cards contained the signatures of G. 39 Where the nomination form was rejected on the ground of withdrawal of candidature but on comparison signatures appearing on the withdrawal notice and those on the nomination form were found to be radically different showing the signatures on the withdrawal notice to be forged, it was held that the election of the returned candidate was liable to be set aside. 40

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However, no two signatures of the same person can ever be identical in all respects. Discrepancies in such a case will be within natural variations. 41 16 T. Subbiah v. Ramaswamy, AIR 1970 Mad 85. See also State of Haryana v. Jagbir Singh, AIR 2003 SC 4377 (paras 18 and 19) : (2003) 11 SCC 261 : 2003 CrLJ 5054. 17 Abdul Subhan Khan alias Khalilur-Rahman v. Nusrat Ali Khan, (1936) 12 Luck 606; Pakala Narayana Swami v. King-Emperor, AIR 1939 PC 47. See Tilakdhari v. Jagat Rai, AIR 1961 Pat 76; Soma Devi v. Guin Devi, AIR 2003 HP 158, 160. 18 Nagappa Chendappa v. Nannibu, AIR 1960 Mys 220. 19 State of Bombay v. Kathi Kalu, (1962) 64 Bom LR 240 : AIR 1961 SC 1808. 20 Ram Swarup v. State, AIR 1958 All 119. 21 AIR 1979 SC 14 : (1979) 2 SCC 158; Ajit Savant Majagavi v. State of Karnataka, AIR 1997 SC 3255 : 1997 CrLJ 3964; Tarak Nath Sha v. Bhutoria Brothers Pvt. Ltd., AIR 1998 Cal 31. 22 Paras 1870, 1871. 23 Kumaran Nair v. Bhargavi, 1988 CrLJ 1000(Ker) ; State of U.P. v. Ram Babu, AIR 1980 SC 791. 24 AIR 1979 SC 14. 25 Kumaran Nair v. Bhargavi, 1988 CrLJ 1000(Ker) ; Babubhai v. Iswarlal, AIR 1975 Guj 95. 26 Sarojini Dassi v. Hari Das, 1922 Cal 12; Srimathi Ponnada Seetha Mahalakshmi v. Gelam Veeraraju Sri, (1970) 1 An LT 64; Krushna Chandra v. Commr. of Endowments, AIR 1976 Ori 52. 27 Barindra Kumar v. R., ILR 37 Cal 467. 28 Sheo Narain v. Rawat, AIR 1986 P&H 174; Sashi Bhusan v. State Bank of India, AIR 1986 Ori 218; M. Narayanaswamy v. Yangatanna, AIR 1975 AP 88; State v. C.V. Gopala Rao, AIR 1954 Mys 117; Golam Rahman v. King, AIR 1950 Cal 66. 29 Alauddin v. Sishir Kumar Dutta, AIR 1989 Gau 42; Bisseswar v. Nabadwip Chandra, AIR 1961 Cal 300; relying on Kessar Bai v. Jethabhai, AIR 1928 PC 277; Madhavayya v. Achamma, AIR 1949 PC 325; Manindra v. Mahaluxmi Bank Ltd., AIR 1945 PC 105; Fazaladdin v. Panchanan Das, AIR 1957 Cal 92; Sarojini Dassi v. Hari Das, AIR 1922 Cal 12; Dhanji Arjan v. Ramji Mavji, AIR 1950 Kutch 58; Alauddin v. Sishir Kumar Dutta, AIR 1989 Gau 42. 30 Shanta Trivedi v. L.I.C. of India, AIR 1988 Del 39. 31 Keshava Lal Trikamlal v. State of Gujarat, (1964) 1 CrLJ 94. 32 Pannalal v. State, (1960) 10 Raj 1191. 33 State of Gujarat v. Vinaya Chandra, AIR 1967 SC 778; State v. Tribikram Bohidar, (1971) 37 Cut LT 714. 34 Taru Bala v. State, AIR 1953 Cal 307; Sri Prasad v. Special Manager Court of Wards, Bahampur Estate, (1936) 12 Luck 400 : AIR 1937 Ondh 194. 35 Soma Devi v. Guin Devi, AIR 2003 HP 158, 160 para 12. 36 P. Arumugham v. K. Maruthamuthu, AIR 2007 (NOC) 1886(Mad) . 37 Poonam Chawla v. Niranjan Kumar, AIR 2009 (NOC) 1461(Del) . 38 Emperor v. Ramrao Mangesh, (1932) 56 Bom 304 : (1932) 34 Bom LR 598. 39 Kamlesh v. B.S. Bedi, AIR 1973 P&H 152. 40 Ram Narain v. Goverdhan Singh, AIR 2007 Raj 217, 226-27 (paras 30-32). 41 K. R. Aravindakshan Nair v. Essen Bhaker's Pathanamthitta, AIR 2007 (NOC) 2575(Ker) .

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2. ADMITTED The word "admitted" appearing in Section 73 of the Evidence Act means not the admission of the person whose signature is disputed in the legal proceedings but it must be the admission of the person who claims that the disputed signature was written by the person by whom it purports to have been written and such person will signify to the Court that he has no objection if those sample signatures are compared with the original one. The word "admission", if construed to be the admission of the person by whom it purports to have been written, it will lead to disastrous effect because such person will deliberately admit some document not really written by him to be in his handwriting so that on examination by the expert it would not be tallying with the disputed document and consequently, he will be benefited by the report. 42 Where there was no mention about the document containing his signature which was admitted by the disputant and which should be compared with the disputed signature, it was held that the application lacked bona fide and could not be allowed. 43 42 Sunil Chowdhury v. Arup Kumar Ghosh, AIR 2006 Cal 109, 113 (para 27). 43 N. Chinnasamy v. P.S. Swaminathan, AIR 2007 (NOC) 333(Mad) .

3. OBJECT NOT TO ASSIST PARTIES The power cannot be used as an instrument or a device for the advantage of any party, either the prosecution or the accused; the object of the provision is to enable the court to find out the truth and to do complete justice between the parties. This section enables the court to assist itself and not to assist the parties. 44 Where the specimen of handwriting were obtained under the directions of the SDM who was neither conducting the enquiry nor was the trial fixed before him and there was no evidence of the accused giving the specimen voluntarily, it was held that, in the circumstances, specimen were not meant to assist the "Court to form its opinion" as envisaged by Section 45. 45 44 Hiralal v. State, AIR 1958 Cal 123; See also State v. Poonam Chand, 1957 Nag LJ 535 : AIR 1958 Bom 207; Heeralal Agarwala v. State, 61 Cal WN 691; State v. Poonam Chand Gupta, AIR 1958 Bom 207; Public Prosecutor v. Kandaswami, ILR 50 Mad 462 : AIR 1927 Mad 696; Vinod Kumar v. State, 1981 CrLJ 927(Del) . (a prosecution witness cannot be called upon to get his voice tape-recorded for comparison); Dharamvir Singh v. State, 1975 CrLJ 884(P&H) ; T. Subbiah v. S.K.D. Ramaswamy, 1970 CrLJ 254(Mad) : AIR 1970 Mad 85; Babubhai v. Iswarlal, AIR 1975 Guj 95; Shaik Hussain v. Putei Begum, ILR 1976 AP 1145. 45 Amarjit Singh v. State of U.P., (1998) 8 SCC 613 : 1998 SCC 1609(Cri) .

4. TO BE EXERCISED WITH CARE AND CAUTION Section 73 enables the court to do the comparison. Comparison requires some special skill acquired after a regular course of study; that it is not possible for every presiding officer of the court to have obtained expert skill in that regard; it has the effect of making the court itself a witness, who cannot be a cross-examined, though an expert, if he gives evidence, can be cross-examined. But these factors cannot restrict the exercise of the power of the court. The way of reconciling the enabling the provisions of the statute with these factors is only the principle of prudence and caution. Though the court is competent under law to make a comparison, it should exercise the power very sparingly and with utmost caution. 46 The Court is entitled to compare the disputed and admitted signatures and handwriting for coming to a conclusion but the rule of prudence and caution requires that in the first place the expert's opinion should be obtained for assistance and if such an opinion is not available, the presiding judge must disclose in the judgment his knowledge in the subject of comparison of hand writing or should mention that he has taken aid from some authoritative text book. The Court should also mention whether the result of its comparison finds support from some evidence adduced by the parties in the shape of oral or documentary evidence or direct evidence. Mere statement in the judgment that on comparison the disputed and admitted signatures are found to be of the same person is not enough and it cannot be said to be a sound finding based on cogent and scientific reasons and data. 47

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46 Rudragouda v. Basangouda, AIR 1938 Bom 257; Nagappa v. Nannibu, AIR 1960 Mys 220; R v. Ramrao, ILR 56 Bom 304; Major Barkar v. Mrs. Barkar, AIR 1955 MB 103(FB) ; Saurendra Mohan Basu v. Saroj, AIR 1961 Cal 461; Annapurnamma v. B. Shankararao, AIR 1960 AP 359; Ramkrishna v. Md. Kasam, AIR 1973 Bom 242; Bhagwan Din v. Gouri Shankar, AIR 1957 All 119; Tilakdhari v. Jagat, AIR 1961 Pat 76; Bhagwan v. Gouri, AIR 1957 All 119; Barindra Kumar v. R, ILR 37 Cal 467; Sarojini Dassi v. Haridas, AIR 1922 Cal 12; R. v. Ramarao, ILR 56 Bom 304; Major Barkar v. Mrs. Barkar, AIR 1955 MB 103(FB) . 47 Ashok Kumar Uttamchand Shah v. P.M.A. Chanchad, AIR 1999 Guj 108 (paras 11 and 13).

5. HOW TO BE COMPARED For the purpose of comparison the true test to be applied, is to consider the general character of the two writings, sought to be compared, and not to lose oneself in scrutinising the formation of each individual letter. It is not uncommon to find differences in the writing of one and the same person, even after a short interval of time. It depends upon so many extraneous circumstances, the pen, the ink, the paper, the posture of the hand and the general conditions in which a person writes. It is for that reason that the law merely requires consideration of the general character of the two handwritings. 48 In examining the documents the court has to see the dissimilarities between the disputed and genuine document because forged documents usually are good imitations of genuine documents. 49 In the absence of marked differences between the two signatures, the court would not be justified in rejecting the disputed signatures as not genuine. 50 Personal characteristics of the writer are the unfailing guides in determining the genuineness of handwriting. 51 48 Bhupendra Narain v. Ek Narayan Lal, AIR 1965 Pat 332. 49 Raujappa v. Nilakanta Rao, AIR 1962 Mys 53. 50 Annapurnamma v. Shankararao, AIR 1960 AP 359. 51 Bisseswar v. Nabadwip Chandra, AIR 1961 Cal 300.

6. HAZARDOUS AND INCONCLUSIVE A direction to an accused under Section 73is not tantamount to his examination under the Cr. P.C., or to making an order to the prejudice of the accused underSection 439,Cr. P.C. 52 The conclusions based on mere comparison of handwriting must, at best, be indecisive and yield to the positive evidence in the case. 53 It is unsatisfactory and dangerous in any event, to stake a decision in the case on a comparison of handwriting. 54 L ORD A TKIN observed; "But their Lordships have also themselves carefully compared the endorsement with the admitted signatures, and they are unable to feel the certainty which was expressed by the Chief Justice. The signatures appear to be written with different ink and possibility at different times, and though the purported signature bears a close resemblance to some of the genuine examples produced notably to a signature in a letter of authority addressed to Jethabhai himself, the purported signature of Keshvalal himself is by no means convincing". 55 It should not be taken that the above observation prohibits comparison by the court. Even the Privy Council compared the handwritings as there was no expert evidence adduced in that case. M ADHAVAN N AIR J. observed at P. 329 "after carefully examining the various signatures, their Lordships are not satisfied that the disputed signature is that of the deceased". 56 The Supreme Court compared the various admitted signatures and the writings of the testators at different times, to decide about the genuineness of the signatures in a will, and held that it was genuine. 57

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Their Lordships were strongly impressed by the comparison of the disputed signature with the admittedly genuine signature. 58 A comparison of handwriting as a mode of proof is at all times hazardous and inconclusive and especially when it is made by any one not conversant with the subject and without guidance from expert evidence; 59 hence the Court should take the help of the opinion of an expert. 60 In a case of catering contract on the basis of some difference in signatures, the allegation of the petitioner was that the person in whose favour the contract was awarded was not the real contractor and somebody else was impersonating him. It was held that in the writ proceedings, that the Court itself could not take the hazardous task of comparison of signatures in such a case. 61 52 Kishan Diyal v. State, 1953 CrLJ 162(Bilaspur) . 53 Kishore Chandra v. Ganesh Prasad, AIR 1954 SC 316. 54 Kessarbai v. Jethabhai, AIR 1928 PC 277; See also Sarojini Dassi v. Hari Das, AIR 1922 Cal 12; Barindra Kumar v. R., ILR 37 Cal 467; Saurendra Mohan Basu v. Saroj Ranjan, AIR 1961 Cal 461(FB) . 55 Kessarbai v. Jethabhai, AIR 1928 PC 277. 56 G. Madevaih v. G. Achamma, AIR 1949 PC 325. 57 Shashi Kumar v. Subodh Kumar, AIR 1964 SC 529. 58 Manindra v. Mahalakshmi Bank Ltd., 1945 PC 105. 59 State of Bihar v. Kailash Prasad, AIR 1961 Pat 451; Ram Sabhag v. Emperor, AIR 1937 Pat 146; Glastaaun v. Sonatan Pal, AIR 1925 Cal 489; Kessarbai v. Jethabhai, AIR 1928 PC 277; Ramkrishna v. Md. Kasam, AIR 1973 Bom 242; Shanta Trivedi v. LIC of India, AIR 1988 Del 39; Chandreshwar Singh v. Ramchandra Singh, AIR 1973 Pat 215; Ala Uddin v. Sishir Kumar Dutta, AIR 1989 Gau 42 : K. Siuan Achari v. State of Kerala, (1985) 2 Crimes 288(Ker) ; Panna Lal v. State of U.P., 1982 All LJ 242 (such opinion after comparison cannot be a substitute for the evidence) Saurendra Mohan Basu v. Saroj Ranjan Sarkar, AIR 1961 Cal 461. See also Naranda Maharana v. Pramila Kumari Dei, AIR 2002 Ori 33, 36, 37, relying on, Laxmi Bai v. A Chandravati, AIR 1995 Ori 131; O. Baratham v. K. Sudhakaran, AIR 1996 SC 1140 : (1996) 2 SCC 704 and Durga Prasad Agarwal v. Binayandranath Banarjee, (1996) 82 CLT 737. 60 Jai v. Uchhaba Sahu, 2003 AIHC 2026, 2029 (paras 9 to 11) (Ori). 61 S. Pandian v. Union of India, AIR 2005 Mad 88, 90 (para 7), following O. Bharathan v. K. Sudhakaran, AIR 1996 SC 1140 : (1996) 2 SCC 704.

7. WHEN COMPARISON UNNECESSARY When oral evidence clearly establishes that a person executed a certain document, it is unnecessary for the Court to embark upon an investigation into the signatures by comparison. 62 Where there is no evidence on the question of genuineness of the disputed signature, either direct or circumstantial, or the opinions of experts or of persons acquainted with such handwriting or signature (under Section 45 or 47 of the Evidence Act ), the Court's own opinion arrived at as a result of comparison authorised by Section 73 would not be adequate for resting its finding. 63 62 Annapurnamma v. Vadrevu Bhima Sankararao, AIR 1960 AP 359. See also Yeshpal v. Vijaykumar, AIR 2008 (NOC) 2017(Mad) . 63 Vazir Begum v. Seth Tholaram, (1960) 1 MLJ 142; Haridas Mundhra v. State, (1962) 1 All 451; Fazaladdin v. Panchanan Das, AIR 1957 Cal 92.

8. COMPARISON OF HANDWRITING BY THE COURT This section enables the court to compare the handwritings with the sole object of ascertaining whether the signature which is disputed is genuine or not. The court is given the power to direct any person present in the court to give specimen handwriting or signature, for the purpose of comparison

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with the disputed one. But where in a case of enforcement of bank guarantee, the guarantor took the plea that the signatures on the deed were forged and for comparison of signatures the admitted signatures of the guarantor on acknowledgement, summon etc. were available before the Court, further getting his another signature in the open Court for comparison was not necessary. 64 The Court cannot compare the signatures and base its findings on it. However, it can compare signatures in order to strengthen its findings based on other cogent evidence or material on record. 65 Comparison of signatures by the Court and its conclusion thereon would not prevail over the cogent, consistent and convincing oral testimony. 66 It was held that the judge should as a matter of prudence and caution, hesitate to base his finding solely on the comparison made by him; that the prudent course would be to obtain opinion or assistance of an expert. 67 Where the entire case of the plaintiff was based on the deed of agreement for sale of a disputed house in respect of which the defendant contended to be forged and fabricated, the Court should not have rejected the application for sending the disputed signature for examination to handwriting expert; 68 and where the signature on the registered Will was disputed on the basis of the sale deed executed by the testator long back, the court rejected the prayer for sending the documents to the expert and compared the signatures itself and gave finding, it was held that the modality adopted by the court was not proper. 69 but where the party disputing the signature on the document failed to pray for examination of the disputed signature by an expert, the Court committed no illegality by making comparison of the disputed signature with the admitted signatures of the person concerned available on record itself. 70 In several cases it has been held the power to compare the documents should be done with great care and caution. 71 Comparison of disputed signatures by the High Court without the aid of the expert or the person conversant with the disputed signatures is illegal 72 but the Court is competent to draw the comparison on the basis of admitted signatures. 73 However, the Madras High Court has held that it is not always necessary that the expert should invariably be examined and his opinion alone must be taken into account for comparing the disputed signature. 74 When handwriting expert said the thumb impression was not that of a person the court cannot substitute its opinion. 75 The complainant positively asserted that the entire writing of the cheque was written by the accused whereas the accused, denying the same, alleged that he had lost three blank cheques containing his signatures including the cheque in question. The Court directed to get the writing other than signatures, on the disputed cheque examined by a handwriting expert. 76 Section 73 of the Evidence Act empowers the Court to compare the disputed signatures with the admitted signatures. The observation of the Court that by mere looking at the signatures of the respondent on the disputed document with those on admitted documents, showed that the signatures on disputed document were not of the respondent, was held to be admissible and correct. 77 Where the application for comparison of signature by handwriting expert was moved by the defendant after the evidence of the plaintiff was over and evidence of the dependent was about to finish, the said application was rejected by the trial Court holding that it was moved only to protract the proceedings of the case. Upholding the trial Court's order, the High Court directed trial Court to compare the signature found in the document with the admitted signature available on record by exercising the power under Section 73 of the Evidence Act . 78 The comparison of signature of the party on the disputed document by the trial Court with his signatures available on other documents on record and giving of its findings thereon which could be considered with the findings on other evidence on record, in view of Section 73 of the Evidence Act, was held to be proper. 79 Where the petitioner had never taken the defence that the document was a fabricated one at any stage during the course of trial even though his application for reopening the case had been allowed to enable him to examine his further witnesses and the same had not been availed of, the application for sending the document for Handwriting Expert's opinion at the belated stage, was held to be not maintainable because it was moved to drag the proceedings and it was held that the signature could be compared by the trial Court itself under Section 73 of this Act . 80 Where the parties had no capacity to bear the expenses, the court itself decided to tally the signatures. 81 Where the parties took no steps to secure the opinion of the handwriting expert, the court has power to compare the disputed signature without the assistance of any expert. 82

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Even though Section 73 of the Evidence Act enables the Court to compare signatures, it will be unsafe, if not hazardous for the Court to attempt a comparison unaided by the scientific opinion of an expert. Without getting an expert opinion, the Court should not venture to decide the matter on merits. 83 In respect of matter pertaining to the eligibility to contest election, the Court should be more conscious and should not take the task of comparing the handwriting upon itself and call for an expert opinion to assist the formation of the opinion of the Court. 84 "See cases under the head, to be exercised with care and cautions". 64 New Bank of India, Trivandrum v. Sajitha Textiles, AIR 1997 Ker 201. See also Jayanti Gogoi v. Pranati Daura, AIR 2004 Gau 23, 25 (para 11) : 2003 (3) Gau LR 620 : 2004 (15) All Ind Cas 761; T.P. Mani v. Krishnan, AIR 2007 (NOC) 819(Mad) . 65 Satish Jayantilal Shah v. Pankaj Mashruwala, 1996 CrLJ 3099 (para 13) (Guj), Court compared signatures and also considered other evidence, decree not improper, Laxmi Shanker v. Shyam Lal, AIR 2006 AII 171, 173 (para 5). 66 Rugmini Amma v. Bhargavi Kovil, 2000 AIHC 4677 (paras 33 and 34) (Ker). 67 State (Delhi Admn.) v. Pali Ram, AIR 1979 SC 14. 68 Bhagirati Sahu v. Akapati Bhaskar Patra, AIR 2001 Ori 185 (para 11). 69 Gaudiya Mission v. Shobha Bose, AIR 2008 SC 1012, 1015 (para 14). 70 Rabindra Nath Majumdar v. Ardhendu Dutta, 2002 AIHC 2034, 2035 (para 11) (Cal). See also Bommidala Mohana Rao v. Bommidala Ananda Rao, AIR 2006 (NOC) 1210(AP) . 71 Bhagwan Din v. Gauri Shankar, AIR 1957 All 119; Vazir Begum v. Seth Tholaram, (1960) 1 MLJ 142; Haridas Mundhra v. State, (1962) 1 All 451. 72 O. Bharathan v. K. Sudhakaran, AIR 1996 SC 1140 (paras 18-22), relying on State (Delhi Administrative) v. Pali Ram, AIR 1979 SC 14 and reversing the E.P. No. 4 of 1991, Dt. 10-8-1992 (Ker). See also Shyam Sundar Chowkhani v. Kajal Kanti Biswas, AIR 1999 Gau 101 (para 15). See also Ramaniranjan Dash v. Rajkishore Dash, AIR 2009 (NOC) 969(Ori) . 73 Mathew Jacob v. Salestine Jacob, AIR 1998 Del 390 (para 7). See also D. Pandi v. Dhanalakshmi Bank Ltd., AIR 2001 Mad 243 (paras 9, 13 and 16). Lok Sabha Speaker, a Tribunal, compared signatures of M.P.s with their signatures in Vakalatnamas filed by their counsel, S.C. upheld, Jagjit Singh v. State of Haryana, (2006) 11 SCC 1, 24 (para 43). 74 Venkatesa Naidu v. Perumal, 1998 AIHC 2171 (para 3) (Mad). 75 Hamida v. Humer Smt., AIR 1992 All 346. 76 Dev Prakash Paliwal v. State of Rajasthan, AIR 2008 (NOC) 2019(Raj) . 77 Surapaneni Narasimha Rao v. Uppala Pati Sreerangennayakamma, 2005 AIHC 2715, 2717 (para 9) (AP). 78 V. Chinniah v. Pitchaimuthu, AIR 2004 Mad 254 (para 3). 79 Nepal Singh v. Om Pal Singh, AIR 2005 Del 330, 333 (para 10). 80 Venkatachalam v. Angammal, AIR 2003 Mad 361, 362 (para 7). 81 Yeradevireddi Venkataramanappa v. Nallapareddi Subbamma, AIR 2007 (NOC) 2639(AP) . 82 S.B. Ittigi v. S.V. Sulochana, AIR 2007 (NOC) 424(Kant) : 2007 (1) AIR Kar R 467. 83 K. R. .4ravindakshan Nair v. Essen Bhaker's Pathanamthitta, AIR 2007 (NOC) 2575(Ker) . 84 Raj Kishore Dash v. Ramaniranjan Das, AIR 2009 (NOC) 169(Ori) .

9. COMPARISON BY APPELLATE COURTS AND IN REVISION

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The Appellate Court is entitled under Section 73 to compare the signatures and come to its own conclusion, where the identity of signatures was in issue before the trial court. 85 The Supreme Court held that in an appeal the court is entitled to call for the writing for making a comparison thereof. 86 The trial Court can also do it. 87 Determining the genuineness of the signature on the document by comparing it with proved signature cannot be done in revision, as it amounts to bringing in new evidence. 88 When the court compares handwriting unaided by expert evidence, it should be before lawyers and with their assistance. 89 Where the court rejects the evidence of the experts on both sides, it should not convert itself into a handwriting expert, and stake a decision on the correct determination of the genuineness of the signature. The conclusions based on mere comparison are at best indecisive and must yield to the positive evidence in the case. 90 A court will not be justified in relying mainly upon its own impressions by comparison of the disputed signature with the admitted signature but should consider the entire evidence in the case. 91 The dispute regarding genuineness of a signature should not be decided by the Court merely on the basis of its personal comparison. 92 When the opposite party has refused to examine the expert, the court can examine the disputed handwriting with the admitted one. 93 The comparison of signatures by a court is not and should not be dependant on the examination of a handwriting expert. 94 This section does not prohibit this sending of handwriting given by a person in court to a handwriting expert for his opinion. 95 The court is not bound to refer to a handwriting expert when by itself it could note dissimilarity in the signature and handwriting. 96 There is no rule of law that the court is precluded from coming to its own conclusion in cases where it is fully familiar with the language and script of the document which is the subject matter of scrutiny before it and where it has the assistance in such scrutiny of the counsel of the parties. When it comes to its own conclusion by comparison, it is not bound to seek the assistance of the handwriting expert. It may be a rule of caution and prudence that, where the court considers that the opinion of a handwriting expert would be of assistance to it in coming to a decision, it may call for the evidence of an expert. 97 Section 73 is quite general in its terms and applies to all cases; if there is nothing in the criminal procedure code which precludes its application to criminal trials. There is no reason why the plain language of the section should not be given its full effect. Section 342,Cr.P.C., does not makeSection 73 of the Evidence Act inapplicable to criminal trials. When an impression is taken under the provisions of the Identification of Prisoner Act (1920), it is in strict compliance with Section 73. 1 Under Sections 4 & 5of the Identification of Prisoners Act , the accused can be compelled to give his measurements; the word "measurements" as defined inSection 2(a) of that Act does not include "specimen handwriting". It was held that accused cannot be compelled to give specimen handwriting under Sections 4 & 5 though it has power under Section 73 of this Act to direct the accused to give finger impressions as well as specimen writing. 2 Where the evidence of the handwriting expert was not corroborated, it was held that the Court can furnish corroboration by comparing the handwriting and come to the conclusion. 3 The comparison a court makes is only to assist it in arriving at the conclusion whether the evidence led on one side or the other is acceptable. 4 A comparison of the disputed with the admitted writings, is a piece of evidence on record and it is a method of examining the internal evidence of a document and of judging whether it finds support from other evidence which is external qua the document containing the disputed writing. Another method is to look for other kinds of circumstantial or direct corroborative evidence on record. 5 Plaintiff is not bound to examine a handwriting expert to prove his case, whenever the defendant denies his signature, nor is the court bound to accept the evidence of an expert produced by the defendant as true. 6 According to the Bombay High Court the expression by whom it purports to have been written or made means by whom it is alleged to have been written or made 7 . The Calcutta High Court has construed it to mean that the writing which is in dispute must itself in terms express or indicate that it was written by the person to whom the writing is attributed. It has observed that the section "does not sanction the comparison of any two documents, but requires that the writing with which the comparison is to be

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made.... shall be admitted or proved to have been written by the person to whom it is attributed, and next the writing to be compared with the standard...must purport to have been written by the same person, that is to say, the writing itself must state or indicate that it was written by that person...a comparison of handwriting is at all times as a mode of proof hazardous and inconclusive, and especially when it is made by one not conversant with the subject and without such guidance as might be derived from the arguments of counsel and the evidence of experts" 8 . According to the Bombay view when an anonymous writing is produced and ascribed by the prosecution to a particular person, the case for the prosecution must be taken to be that having regard to the admitted documents and the comparison between them and the disputed writing, the prosecution alleges that the disputed document purports to have been written or made by the accused. 9 The Madras High Court dissenting from Barindra v. R. 10 and approving R. v. Ganpat Balkrishna, 11 held that the word "purports" does not limit the scope to such documents only as are signed or contain some intrinsic statements of identity of the writer; any document alleged by a party to be in the handwriting of a particular person may, for the purpose of proof, be compared with other writing or signature admitted or proved. 12 This view seems to be correct as it is not always possible to have a statement in the document disclosing or indicating the identity of the writer. Section 73 is in pari materia with Section 540,Cr. P.C. If a party files a petition underSection 540,Cr. P.C., that does not obliterate the power of the court to summon a witness as a court witness. On the same analogy, filing of a petition by the complainant for taking action underSection 73 Evidence Act does not take away the statutory power of the court to act according to Section 540. 13 The court cannot hand over the specimen handwriting taken in the court, to the prosecution, for use and opinion of the handwriting expert. 14 The Court also cannot send such a document to an expert who is a prosecution witness, but it can call its own expert as a Court-witness. 15 The Supreme Court in State of Delhi Administration v. Pali Ram 16 reversing the decision in 1975 Cr LJ, 1756 (Delhi) held that the two paragraphs of Section 73 are not mutually exclusive but are complementary to each other; Section 73 is therefore to be read as a whole in the light of Section 45. A court holding an enquiry under the Criminal Procedure Code in respect of an offence triable by itself or by the Court of sessions does not exceed its powers under Section 73, if, in the interest of justice, it directs an accused person appearing before it to give his sample writing, to enable the same to be compared by a handwriting expert chosen or approved by the court, irrespective of whether his name was suggested by the prosecution or the defence, because even in adopting this course, the purpose is to enable the court before which he is ultimately put up for trial to compare the disputed writing with his (accused) admitted writing and to reach its own conclusion with the assistance of the experts. It is not advisable that the Judge should take upon himself the task of comparing the admitted writing with the disputed one to find out whether the two agree with each other; and the prudent course is to obtain the opinion and assistance of an expert. 17 The court can direct a person to appear in court and give specimen of his handwriting. The power can be exercised suo motu or on application of a party. 18 85 (1957) 100 Cal LJ 167. 86 Fakhruddin v. State of MP, AIR 1967 SC 1326 : 1967 GLJ 1197. 87 K.S. Satyanarayana v. V.R. Narayana Rao, AIR 1999 SC 2544 (paras 7 and 8), reversing RFA No. 460 of 1996, Dt. 3-3-1998 (Kant). See also Puttaramaiah v. Thimmaiah, 2008 AIHC 703, 706-07 (paras 13 and 14) (Kant). 88 Hardevi Malkani v. State, 1969 All 423. 89 Bhupendra Narain v. Narayan Lal, AIR 1965 Pat 332.

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90 Tilakdhari v. Jagath Rai, 1961 Pat 76; Fazaladdin v. Panchanan Das, AIR 1957 Cal 92; Kessarbai v. Jethabhai Jivan, AIR 1928 PC 277; Kishore Chandra v. Ganesh Prasad, AIR 1954 SC 316. 91 .4mbikacharan Basu v. Nareswari Dasi, AIR 1925 Cal 145 : 29 Cal WN 75. 92 Laxmi Bai v. . 4. Chandravati, AIR 1995 Ori 131 (para 9), reversing FA No. 381 of 1981 Dt. 18-3-1991 (Ori). 93 Salig Ram v. State of HP, 1973 CrLJ 1030(HP) . 94 Iswar Chandra v. Ramnik Lal, AIR 1978 Ori 156. 95 Rama Rao v. Laxmi .4mma, (1969) 2 Mys. LJ 158. 96 Jagan Mohan Rao v. K. Swarup, (1972) 2 Mad LJ 77. 97 Bhaggu v. Manni Prasad, AIR 1965 All 202. 1 Golam Rahman v. King, AIR 1950 Cal 66. 2 Govt. of Manipur v. Thokchom Thomba Singh, AIR 1969 Manipur 22. 3 Suresh Shankarrao Kher v. State, ILR 1978 Bom 729; relied on Fakhruddin v. State of MP., AIR 1967 SC 1326. 4 State of Gujarat v. Vinaya Chandra, AIR 1967 SC 778. 5 Devi Prasad v. State, AIR 1967 All 64. 6 Panchulal v. Ganeshilal, AIR 1973 Raj 12. 7 Emperor v. Ganpat Balkrishna, 1912 14 Bom LR 310. 8 Barindra Kumar Ghose v. Emperor, (1909) 37 Cal 467, 502, 503. See Sarojini Dassi v. Hari Das Ghose, AIR 1922 Cal 12 : (1921) 49 Cal 235; Khiruddin Sonar v. Emperor, (1925) 53 Cal 372 : AIR 1926 Cal 139. 9 Emperor v. Ganpat Balkrishna, (1912) 14 Bom LR 310. 10 37 Cal 467. 11 (1912) 14 Bom LR 310. 12 See also Kanwarlal Gupta v. Amarnath Chawla, (1972) 1 Delhi 717. 13 Benu Behera v. Sunakar Parida, ILR 1972 Cut 1232. 14 R.B. Khajotia v. A.S.T. Zaidy, 1973 CrLJ 1499(Bom) . 15 Hiralal v. State, AIR 1958 Cal 123. 16 AIR 1979 SC 14. 17 See also Kanwar Lal Gupta v. Amarnath Chawla, (1972) 1 Del 717. 18 Guru Nanak Construction Co. v. Jai Bharat Steel Rolling Mills, (1977) 1 Punj 565.

10. "ANY PERSON" The words "any person" in Section 73, para 2 are wide enough to cover an accused person.

19

The words "any person" are so wide as to include all persons; the words "person present in court" limits only those persons who are before the court and may not include an on looker or a spectator but refers to persons who are parties to the "cause" pending before the court. It may include even the witnesses of the contesting parties in the said cause. 20 It was held that the direction to the son of the defendant who was present in court, to give his handwriting, was unquestionable, as the son's interest was represented by his father as a defendant

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in the suit, and that a stranger must also come within the sweep of Section 73, so that the object of the section may not be defeated. 21 The Gujarat High Court held that under Rule 78 of the Civil Manual (Gujarat) Vol. I. Chap. VII, there is no provision enabling the court to take writings of a party or a witness in the presence of the court, with a view to supplying the standard writing for comparison with the disputed writing. 22 19 State v. Parameswaran Pillai, AIR 1952 Tra & Co. 482 (FB); Sailendra Nath v. State, AIR 1955 Cal 247; Benu Behara v. Sunakar Parida, (1972) 2 Cut WR 1557 : ILR 1972 Cut 1232; State of Mysore v. Gopal Rao, ILR 1953 Mys. 697; Aloysious Admn. v. State, 1966 MLJ 298(Cri) (Ker) ; State Delhi Admn. v. Paliram, AIR 1979 SC 14; R. v. Nga Tun Hlaing, AIR 1924 Rang 115(FB) ; R. v. Ramarao, ILR 56 Bom 304; Golam v. King, AIR 1950 Cal 66; Narayana Swami v. Emperor, AIR 1939 PC 47 (dealing Section 162Cr PC); Zahur v. Emperor, (1927) 6 Pat 623. 20 T. Subbiah v. Ramaswamy, AIR 1970 Mad 85. 21 Dinanath v. Sukhdeo, AIR 1980 Pat 253. 22 Babubhai v. Ishwarlal, AIR 1975 Guj 95.

11. CONSTITUTIONAL VALIDITY [ Section 73] The principle enshrined in Art. 20(3) of the Constitution is known as testimonial compulsion. In Sharma v. Satish , 23 the Supreme Court observed that a direction to the accused to give specimen writing or finger impression or the issue of any compulsory process for the production of any document which is reasonably likely to support the prosecution case infringed Art 20(3) of the Constitution. It was a case of seizure of some documents from the premises under a search warrant and it was held that the seizure was not unconstitutional, under Art 20(3) of the Constitution. The above observation of the Supreme Court was held obiter in a later case before the Supreme Court in Md. Dastagir v. State of Madras 24 and reiterated in another Supreme Court case, State of Madras v. Kathi Kalu . 25 Several High Courts followed the Supreme Court decision in Sharma v. Satish. 26 It has been held in some cases that mere direction by a Court to give specimen handwriting or finger impression does not violate Art. 20(3) of the Constitution, as it does not amount to "compulsion" or testimonial compulsion, and as the person to whom it is directed may still refuse to comply in which case adverse inference may be drawn under Section 114 of the Evidence Act . 27 The Supreme Court held: 28 2a )   'To be a witness' is not equivalent to 'furnishing evidence' in its widest significance; that is to say, as including not merely making of oral or written statements but also production of documents or giving materials which may be relevant at a trial to determine the guilt or innocence of the accused. 2b )   Giving thumb impressions or impressions of foot or palm or fingers or specimen writings or showing parts of the body by way of identification are not included in the expression 'to be a witness'. 2c )   'To be a witness' means imparting knowledge in respect of relevant facts by an oral statement or a statement in writing, made or given in Court or otherwise. 2d )   'To be a witness' in its ordinary grammatical sense means giving oral testimony in Court. Case law has gone beyond this strict literal interpretation of the expression which may now bear a wider meaning, namely, bearing testimony in Court or out of Court by a person accused of an offence, orally or in writing. 29 Three judges however expressed a different view in regard to the proposition (c ) above. Delivering the judgment on their behalf D AS G UPTA J. said: "That brings us to the suggestion that the expression "to be a witness" must be limited to a statement whether oral or in writing by an accused person imparting knowledge of relevant facts; but that mere production of some material evidence, whether documentary or otherwise would not come within the ambit of this expression. This

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suggestion has found favour with the majority of the Bench; we think however that this is an unduly narrow interpretation. We have to remind ourselves that while on the one hand we should bear in mind that the Constitution-makers could not have intended to stifle legitimate modes of investigation. We have to remember further that quite clearly they thought that certain things should not be allowed to be done, during the investigation, or trial, however helpful they might seem to be to the unfolding of truth and an unnecessary apprehension of disaster to the police system and the administration of justice, should not deter us from giving the words their proper meaning. It appears to us that to limit the meaning of the words "to be a witness" in Art. 20(3) in the manner suggested would result in allowing compulsion to be used in procuring the production from the accused of a large number of documents, which are of evidentiary value, sometimes even more so than any oral statement of a witness might be. Suppose, for example, an accused person has in his possession, a letter written to him by an alleged co-conspirator in reference to their common intention in connection with the conspiracy for committing a particular offence. Under S. 10 of the Evidence Act this document is a relevant fact as against the accused himself for the purpose of proving the existence of the conspiracy and also for the purpose of showing that any such person was a party to it. By producing this, the accused will not be imparting any personal knowledge of facts; yet it would certainly be giving evidence of a relevant fact. Again, the possession by an accused of the plan of a house where burglary has taken place would be a relevant fact under S. 8 of the Evidence Act as showing preparation for committing theft. By producing this plan is he not giving evidence against himself ? 30 Though in proposition by the majority observed that giving specimen writing is not included in the expression to be a witness, the minority observed that an accused would be furnishing evidence, when he is giving his specimen handwriting. But he cannot be said to have been compelled to be a witness against himself within the meaning of Art. 20(3). They observed: "But the evidence of specimen handwriting or the impressions of the accused person's fingers, palm or foot, will incriminate him, only if on comparison of these with certain other handwritings or certain other impressions, identity between the two sets is established. By themselves, these impressions or the handwritings do not incriminate the accused person, or even tend to do so. That is why it must be held that by giving these impressions or specimen handwriting, the accused person does not furnish evidence against himself. So when an accused person is compelled to give a specimen handwriting or impressions of his finger, palm or foot, it may be said that he has been compelled to be a witness; it cannot however be said that he has been compelled to be a witness against himself. 31 On this reasoning they agreed with the majority that there is no infringement of Art. 20(3) of the Constitution by compelling an accused person to give his specimen handwriting or signature or his impressions of his fingers, palm or foot by the court for purpose of comparison under Section 73. It is to be noted here that when an accused is called upon to do an acti.e., to give impression of the finger or own handwriting, and if he does it, then it would involve necessarily his volition to do that act which in the language of the Supreme Court amounts to personal testimony. Of course, if he refuses to comply, then he cannot be compelled in any manner and then the only course the court may adopt is to draw an adverse inference under Section 114. If the accused does not raise any objection, he shall be deemed to have complied with the direction voluntarily and not under any compulsion. 32 A person required by the court to give a specimen may refuse to do so. There is no element of compulsion in it. The only consequence of non-compliance is that the Court is free to draw on adverse presumption under S. 114. 33 If he refuses to comply with the direction of the Court, and if the thumb impression is taken in spite of his protests, the Court may draw adverse presumption against him. 34 23 AIR 1954 SC 300. 24 AIR 1960 SC 756. 25 AIR 1961 SC 1808. 26 AIR 1954 SC 300. See also Swarnalingam v. Assistant Inspector of Labour, AIR 1955 Mad 716; Rajamuthukoil v. Periyasami, AIR 1956 Mad 632; Collector of Customs v. Calcutta M. Cycle Co., AIR 1958 Cal 682; (diss in 1976 CrLJ 244); Gupta v. State, AIR 1959 All 219; State of Mah. v. Nagpur E.L. & P. Co., AIR 1961 Bom 242; Ranchhoddas v. Jahangir, AIR 1961 Guj 137; Bhaluka Behera v. State, AIR 1957 Ori 172; Gulam Nabi v. State, AIR 1957 J&K 44; Krishnan Kesauan v. State, AIR 1957 Ker 78; State v. Ram Kumar, AIR 1957 MP 73 Dissented in Ram Swarup v.

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State, 1958 All 119); Brij Bhushan v. State, AIR 1957 MP 106 diss from Sailendra Nath v. State, AIR 1955 Cal 247; Tarini Kumar v. State, AIR 1960 Cal 318; Farid v. State, AIR 1960 Cal 32; State v. Sankaran Nair, AIR 1960 Ker 392(FB) ; (reversed in State of Kathi Kalu AIR 1961 SC 1808); R.B. Khajotia v. A.S. Zaidy, 1973 CrLJ 1499(Bom) ; Iqbal Ahmad v. Ketki Devi, 1976 CrLJ 244(All) ; State of Bombay v. Poonam Chand, AIR 1958 Bom 207; 1958 CrLJ 619(Bom) ; Iqbal Ahmad v. Ketki Devi, 1976 CrLJ 244). 27 In re : Palani Goundan, AIR 1957 Mad 546; Ram Swarup v. State, 1958 All 119; Ranjit Ram v. State, 1961 All 456(FB) ; Nazir Singh v. State, AIR 1959 MP 411; Mahal Chand v. State, AIR 1961 Cal 123; Sekender Sheikh v. State, AIR 1962 Cal 36; Pakhar Singh v. State, AIR 1958 Punjab 294; Sailendra Nath v. State, AIR 1955 Cal 247 (diss. in Brij Bhushan v. State, 1957 MP 106); State v. C.Y. Gopala Rao, AIR 1954 Mys. 117; Bhupendra Nath v. Union of India, AIR 1959 HP 29; Iqbal Ahmad v. Ketki Devi, 1976 CrLJ 244(All) (dissenting from R.B. Khajotia v. A.S.T. Zaidy, 1973 CrLJ 1499(Bom) ; Hiralal v. State, AIR 1958 Cal 123 : 1958 CrLJ 367(Cal) and State of Y. Poonamchand, AIR 1958 Bom 207 : 1958 CrLJ 619(Bom) ; Benu Behera v. Sunakar Parida, ILR 1972 Cut 1232; Rakesh Gupta v. State, 1979 Raj LW 453. 28 The State of Bombay v. Kathikalu, AIR 1961 SC 1808. 29 AIR 1961 SC 1808. 30 State of Bombay v. Kathi Kalu, AIR 1961 SC 1808. 31 State of Bombay v. Kathi Kalu, AIR 1961 SC 1808 : (1962) 3 SCR 10 in pages 45 & 46. 32 Bennu Behera v. Sunakar Parida, ILR 1972 Cut 1232. 33 Sashi Bhusan v. SBI, AIR 1986 Ori 218. Contra : Shyam Sundar Chowkhani v. Kajal Kanti Biswas, AIR 1999 Gau 101 (paras 9 and 15). 34 Balraj Bhalla v. Ramesh Chandra, AIR 1960 All 157; Bennu Behera v. Sunakar Parida, ILR 1972 Cut 1232; State of Bombay v. Kathi Kalu, AIR 1961 SC 1808; Lilly v. Vijayalaxmi, 1985 Ker LT 696.

12. WHETHER DIRECTION CAN BE GIVEN DURING INVESTIGATION The Supreme Court has left open the question whether a magistrate can direct the accused to give specimen handwriting during the course of investigation, without giving any definite pronouncement.

35

The Supreme Court in State of U.P. v. Ram Babu Misra, 36 while over-ruling 37 ; Gulzar Khan v. State 38 and B. Ramreddy v. State of A.P. and explaining the earlier decision of the Supreme Court in State of Bombay v. Kathi Kalu 39 observed "though a direction by the magistrate to the accused to give his specimen writing when the case is still under investigation would surely be in the interest of administration of justice, the language of Section 73 of the Evidence Act does not enable the magistrate to give such a direction when the case is still under investigation. The section contemplates pendency of some proceedings before a court. It does not permit a court to give a direction to the accused to give specimen writings for anticipated necessity of comparison in a proceeding which may later be instituted. Further Section 73 makes no distinction between a civil court and a criminal court. 40 The power under this section can be exercised only when an enquiry or trial is pending before the Court. 41 Hence, the report of the Handwriting Expert based on the specimen writings of the accused taken during the investigation of the case at the behest of the police could not be taken into consideration for conviction of the accused as the same was not taken during trial before the Court. 42 It has been held that direction to a person to give his thumb impression during investigation is permissible under Section 73. 43 A Sub-Divisional Magistrate lodging a complaint of an offence, cannot issue a direction to the accused under Section 73 as he is in the position of a prosecutor. 44 35 State v. Pali Ram, AIR 1979 SC 14. 36 AIR 1980 SC 791 followed in State of Haryana v. Jagbir Singh, 1996 CrLJ 2545 (para 26) (P&H). 37 AIR 1962 Pat 255(FB) . 38 (1971) 2 An WR 94 : 1972 CrLJ 1991. 39 AIR 1961 SC 1808.

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40 See also Priti Ranjan Ghose v. State, (1973) 2 Cal 354; Hiralal Aganoalla v. State, AIR 1958 Cal 123; T. Subbaiah v. S.K.B. Ramaswamy, AIR 1970 Mad 85; Sailendranath Singh v. State, AIR 1955 Cal 247; Srikanth v. State, (1972) 2 Cut. WR 1332; Aloysious John v. States, 1966 MLJ 298(Cri) (Ker) ; George v. State, 1980 MLJ 543(Cri) : 1980 Ker LT 222. State of MP v. Ram Kumar Ramgopal, AIR 1957 MP 73; Dharm Vir Singh v. State, 1975 CrLJ 884(P&H) ; Sherchand v. State, 1983 CrLJ 1482(J&K) ; Patipabanapaim Panda v. State, 1983 Cut LR 45(Cri) : 1983 CrLJ 124(NOC) . See also Sanjay Goel v. State of U.P., 2002 CrLJ 625, 646 (para 28) (All) : 2001 AllLJ 2713 : 2001 (3) All CriR 2384 : 2002 (1) Rec Cri R 356; Guru Pal Singh v. State of U.P., 2002 CrLJ 1516, 1519 (para 4, 5, 6) (All) : 2002 All LJ 128 : 2001 (43) All CrC 1121 : 2001 (3) All CrR 2715 : 2002 (1) Cur CrR 248. 41 Sub-Inspector of Police v. Devarajan, 1999 CrLJ 4264(Ker) . See also Sanjay Goel v. State of U.P., 2002 CrLJ 625, 646 (para 28) (All) : 2001 AllLJ 2713 : 2001 (3) All CriR 2384 : 2002 (1) Rec Cri R 356; Guru Pal Singh v. State of U.P., 2002 CrLJ 1516, 1519 (para 4, 5, 6) (All) : 2002 All LJ 128 : 2001 (43) All CrC 1121 : 2001 (3) All CrR 2715 : 2002 (1) Cur CrR 248. 42 Karamjit Singh v. State (UT) Chandigarh, 2005 CrLJ 1303, 1308 (para 8) (P&H) : 2005 (1) All CrLR 825. The Court relied on Sukhvinder Singh v. State of Punjab, 1994 Cri AppR 224. 43 Mukhtiar Singh v. State of Punjab, 1997 CrLJ 4544(P&H), distinguishing from Dharamvir Singh v. State, 1975 CrLJ 884 : 1975 Chand LR 46(Cri) (P&H). 44 (1972) 2 Cut WR 1332.

13. FOOTMARKS In order to secure evidentiary value to documents it is not enough to show that the footmarks tally with the shoes of the accused. The evidence must go further and show that the marks have some peculiarity which is found in the shoes of the accused and will not be found in most other shoes. 45 The Court cannot be told not to exercise the power under the section only because it is hazardous to do so. The court is not thereby assuming the role of an expert. 46 45 Emperor v. Bhika Gabar, (1943) 45 Bom LB 884 (1944) Bom 25. 46 Muralilal v. State of M.P., AIR 1980 SC 531 at 537 citing Shashi Kumar v. Subodh Kumar, AIR 1964 SC 529 and Fakhruddin v. State of M.P., AIR 1967 SC 1326 where the Court itself had done the comparison.

14. FINGER/THUMB IMPRESSION While there is no doubt that court can compare the disputed handwriting/signature/finger impression with the admitted ones, such comparison by court without the assistance of any expert has always been considered to be hazardous and risky. When it is said that there is no bar to a court to compare the disputed finger impression with the admitted one, it goes without saying that it can record an opinion or finding on such comparison, only after analysis of the characteristics of the admitted finger impression and after verifying the same whether the same characteristics are found in the disputed finger impression. The comparison of the two thumb impressions cannot be casual or by a mere glance. Further, a finding in the judgment that there appeared to be no marked difference between the admitted thumb impression and the disputed one, without anything more, cannot be accepted as a valid finding that the disputed signature is of the person who has put the admitted thumb impression. Where the court finds that the disputed thumb impression and the admitted one are clear and where the Court is in a position to identify the characteristics of finger prints, the court may record finding on comparison, even in absence of an expert's opinion. But where the disputed thumb impression is smudgy, vague or very light, the Court should not hazard a guess by a casual perusal. 47 When there is positive denial by the person who is said to have affixed his finger impression and where the finger impression in the disputed document is vague or smudgy or not clear, making it difficult for comparison, the court should hesitate to venture a decision based on its own comparison of the disputed and admitted finger impressions. Further, in cases, where the court is constrained to take up such comparison, it should make a thorough study, if necessary with the assistance of counsel, to ascertain the characteristics, similarities and dissimilarities. Necessarily, the judgment

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should contain the reasons for any conclusion based on comparison of the thumb impression, if it chooses to record a finding thereon. The court should avoid reaching conclusions based on a mere casual or routine glance or perusal. In the instant case, the first appellate court had acted otherwise and the High Court had recorded a different and correct finding. 48 47 Thiruvengadam Pillai v. Navaneethammal, (2008) 4 SCC 530, 539 (para 16), relying on State v. Pali Ram, (1979) 2 SCC 158 : 1979 SCC 389(Cri) ; O. Bharathan v. K. Sudhakaran, (1996) 2 SCC 704 and Ajit Savant Majagvai v. State of Karnataka, (1997) 7 SCC 110 : 1997 SCC 992(Cri) . 48 Thiruvengadam Pillai v. Navaneethammal, (2008) 4 SCC 530, 539-40 (paras 17 and 18).

15. VOICE SAMPLE There is no specific provision for directing the giving of voice samples under the Evidence Act, 1872. Therefore, even if the analogy of Section 73 is brought to the fore for the purpose of directing an accused to give his voice samples, that would have to wait till there is a proceeding before the Court. If after investigation, charges are framed and in the course of proceedings before the Court, the Court feels that voice samples ought to be taken for the purposes of establishing identity, then such a direction may be given provided the voice sample taken is only for the purposes of identification and does not contain any inculpatory statement so as to be hit by Art. 20[(]3[)] of the Constitution of India . 49

49 Rakesh Bisht v. Central Bureau of Investigation, 2007 CrLJ 1530, 1535 (para 17). See also Pustimargiya Tritiya Peeth Pranyas Shri Dwarkadheesh Mandir, Kankroli v. Additional District Judge, Rajsamand, AIR 2009 Raj 9, 12-13 (para 10).

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CHAPTER V OF DOCUMENTARY EVIDENCE S. 73-A. Proof as to verification of digital signature. In order to ascertain whether a digital signature is that of the person by whom it purports to have been affixed, the Court may direct-2a )   that person or the Controller or the Certifying Authority to produce the Digital Signature Certificate; 2b )   any other person to apply the public key listed in the Digital Signature Certificate and verify the digital signature purported to have been affixed by that person. Explanation. --For the purposes of this section, "Controller" means the Controller appointed under sub-section (1) of Sections 17 of the Information Technology Act , 2000.] 1. THE INFORMATION TECHNOLOGY ACT , 2000 PROOF OF DIGITAL SIGNATURE

To ascertain whether a digital signature is that of the person by whom it purports to have been affixed, the Court may direct that person or the Controller or the Certifying Authority to produce the original digital signature certificate. The Court may direct any other person to apply the public key listed in the Digital Signature Certificate and verify the digital signature purported to have been affixed by that person.

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CHAPTER V OF DOCUMENTARY EVIDENCE PUBLIC DOCUMENTS S. 74. Public documents. The following documents are public documents:-4)  

4)  

documents forming the acts or records of the act s-1. of the sovereign authority, 1. of official bodies and tribunals, and 1. of public officers, legislative, judicial and executive, 51 [of any part of India or of the Commonwealth], or of a foreign country; public records kept 52 [in any] State of private documents.

51 Substituted successively by AO 1948 and 1950. 52 Substituted by AO 1950.

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CHAPTER V OF DOCUMENTARY EVIDENCE PUBLIC DOCUMENTS S. 75. Private documents All other documents are private. 1. PRINCIPLE AND SCOPE

Documents are divided into two categories: public and private. Section 74 states what is within the category of public documents. Section 75 states that all other documents are private. Certain modes of proof are prescribed in regard to public documents as distinguished from private documents. Sections 74- 78 deal with (a ) the nature of public documents, and (b ) the proof which is to be given to them. Section 74 defines their nature; and Sections 76- 78 deal with the exceptional mode of proof applicable in their case. The proof of private documents is subject to the general provisions of the Act relating to the proof of documentary evidence contained in Sections 71- 73. "There are several exceptions to the rule which requires primary evidence to be given. The most important and conspicuous exception, however, is with respect to the proof of records, and other public documents of general concern; the objection to producing which rests on the ground of moral , not physical inconvenience. They are, comparatively speaking, not liable to correction, alteration, or misrepresentation the whole community being interested in their preservation, and, in most instances, entitled to inspect them; while private writings, on the contrary, are the objects of interest but to few, whose property they are, and the inspection of them can only be obtained, if at all, by application to a Court of justice. The number of persons interested in public documents also renders them much more frequently required for evidentiary purposes; and if the production of the originals were insisted on, not only would great inconvenience result from the same documents being wanted in different places at the same time, but the continual change of place would expose them to be lost, and the handling from frequent use would soon ensure their destruction. For these and other reasons the law deems it better to allow their contents to be proved by derivative evidence, and to run the chance, whatever that may be, of errors arising from inaccurate transcription, either intentional or casual. But, true to its great principle of exacting the best evidence that the nature of the matter affords, the law requires this derivative evidence to be of a very trustworthy kind, and has defined, with much precision, the forms of it which may be resorted to in proof of the different sorts of public writings" 53 . In T AYLOR O N E VIDENCE 54 it is stated "Public writings consist of the act s of public functionaries in the Executive, Legislative and Judicial departments of government. Under the head of public documents come also the transactions which the official persons are required to enter in books or registers, in the course of their public duties, and which occur within the circle of their own personal knowledge and observation. Foreign acts of State, and the Judgments of Foreign Courts also belong to the class of public document".

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In H ALSBURY ' S L AWS O F E NGLAND , 4th Edn., Vol. 17, para, 163, it is observed that: "To render such a document admissible there must have been a judicial or quasi-judicial duty to inquire, undertaken by a public officer, the matter must have been required to be ascertained for a public purpose, and the document must have been made for the purpose of the public making use of it and being able to refer to it. "The public" in this context does not mean the whole world, but all persons concerned, for instance all persons interested in a manor in the case of an entry in the books of a manor. 55 The limits within which such documents are admissible are laid down by L ORD B LACKBURN in Sturla v. Freccia . 56 The document must be brought into existence for the purpose of its being retained indefinitely as a document of record available for inspection by the public. 57 Where the question arose as to the admissibility of a statement regarding age and place of birth of an individual, contained in a report appointed by a foreign government to know the individual's fitness to hold a post under that government, the House of Lords in Sturla v. Freccia 58 , rejected the evidence afforded by that report. L ORD B LACKBURN stated that the document was not (1) made under a duty to enquire into the circumstances recorded. (2) concerned with a public matter. (3) intended to be retained permanently, and (4) meant for public inspection. F ARWELL J., observed: "The test of publicity as put by LORD BLACKBURN, is that the public are interested in it and entitled to see it, so that if there is anything wrong in it they would be entitled to protest. In that sense, it becomes a statement that would be open to the public to challenge or dispute, and therefore it has a certain amount of authority. The whole gist of the rule as to public documents is that the publicity must be contemporaneous, and publicity means such publicity as would afford the opportunity of correcting anything that is wrong". 59 This section deals with two sets of documents; the first set is covered by Cl. 1. They are:--documents forming the acts or records of the act s--(1) of the sovereign authority (2) of official bodies and tribunals, (3) of public officers, legislative, judicial and executive, of any part of India or of the Commonwealth or of a Foreign Country. Where foreign judgments were tendered, received and marked in evidence and there was no objection to the same by the opposite party, it was held that it was necessary for them to be proved as the provision of Sections 74, 78 and 86 of the Evidence Act would apply where foreign judgments and orders are disputed or objected to being received in evidence for any reason. It is not necessary for a party to prove a foreign judgment or order if there is no objection to the same being received and marked in evidence. 60 The second set of documents are given in Cl. 2 viz., public records kept in any State of private documents. The rest of the documents, other than those noted above, would be private documents, as can be seen from Section 75 of the Act. 53 B EST 12th Edn., ss. 484, 485, pp. 407-409. 54 10th Ed. Section 1479, p. 1073. 55 Sturla v. Freccia, (1880) 5 App Cas 623, HL, per L ORD B LACKBURN . 56 (1880) 5 App Cas 623, HL. See also Ioannou v. Demetriou, (1952) AC 84 (1952) 1 All ER 179, PC; Mercer v. Denne, (1905) 2 Ch 538(CA) ; North Staffordshire Rly Co. v. Hanley Corpn, (1909) 73 JP 477 CA; Daniel v. Wilkin, (1852) 7 Exch 429 at 437. 57 White v. Taylor, (1969) 1 Ch 150 at 155, (1967) 3 All ER 349 at 351. 58 (1882) 5 AC 623. 59 Mercer v. Denne, (1905) 2 Ch 538. 60 Bhatinda Chemicals Ltd. v. M.Y. "X-PRESS NUPTSE", AIR 2006 Bom 311, 315 (para 14).

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2. "PUBLIC DOCUMENT" W IGMORE 61 has observed: "The term "public document" is inadequate and misleading. In the first place, the word "public" is ambiguous. It may signify "open to all", capable of being known or observed by all; or it may signify "having an interest for persons in general"; or it may signify "made or done by an officer of the Government". These are decidedly different senses. So far as the term may indicate a general principle, it is obvious that the principle may result in different rules according to the sense in which the word "public", is to be interpreted. A public document is one prepared by a public servant in the discharge of his official duties. All the public documents have this characteristic that they are kept in some special custody and are provable by means of a copy without production of original. 62 A private document does not become a public document simply because it is filed in the court. To be a public document, it should be record of the act of a public officer or of a court, that a part of the document, namely, the original part would be a private document forming the record of the act of the private parties, and what is subsequently added to that document by the court would be a public document. 63 Similarly, a declaration made by a private party before a public authority and bearing the seal of that authority, would not make it a public document. 64 The fact that a document is registered does not make it a public document. 65 Merely because the deed of assignment is registered with the competent authority that deed itself would not partake the nature of a public document and it will continue to be a private document. A record relating to the execution of such deed maintained by the State however may be a public document bearing in mind the provision of law comprised under Sections 74 of the Indian Evidence Act . 66 The order of sanction for prosecution of a public servant issued under 19 of Prevention of Corruption Act (1988) in the name of Governor authenticated by the secretary to the State Government is a public document within the meaning ofSection 74 of the Evidence Act and the same can be proved in terms of Ss. 76 to 78 of the Act . 67 The death certificate is a public document but that does not necessarily mean that the same is to be accepted as true without considering the circumstances. In the instant case, the plea of death of the person concerned was taken in the proceedings after a lapse of 15 years and only after the final decree was passed which created doubt. 68 The State Register of driving licences is a public document, entries made in which are admissible in evidence under Section 77 and need not be proved by examining a witness. 69 Power of attorney is a registered document. It is a public document within the meaning of Section 74(2) of the Evidence Act. Its certified copy is admissible in evidence as provided under Section 76 of the Evidence Act . 70 Muntakhab is essentiallay a document with list of names with number of fields held by original grantee or his successors. A certificate issued by competent authority recognising succession, forms part of Muntakhab and sometimes by itself is a Muntakhab. The Court held that Muntakhab is certainly a public document and it cannot be treated as a private document. 71 61 2nd Ed. Vol. 35, p. 1630. 62 Thsasyvoulos Ioannou v. Papa Christoforos Demetrioa, AIR 1952 AC 84; State v. Chimanlal, AIR 1942 Bom 161. 63 State of Gujarat v. Ambalal Maganlal Shah, 1966 CrLJ 967 (1). 64 Manuel Barreto Xavier v. Narayan Biku Naik, 1997 AIHC 959 (para 3) (Bom). 65 K.K. Thankappan v. K.S. Jayan, AIR 2003 Ker 114, 132 (para 49). 66 Purushottam v. A.N. Jog, 2005 AIHC 861, 863 (para 9) (Bom). 67 State v. K. Narasimhachary, AIR 2006 SC 628, 629, 630 (paras 11 & 14) : 2006 CrLJ 518 : (2005) 8 SCC 364. 68 Nilamani Pradhan v. Narottam Pradhan, AIR 2008 Ori 185, 186-87 (para 9). 69 Oriental Insurance Company Ltd. v. Poonam Kesarvani, AIR 2009 (NOC) 1908(All) : 2009 (3) ALJ 613(DB) .

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70 P.K. Pandian v. Komala, AIR 2009 Mad 51, 53 (para 9). 71 Public Information Officer v. A.P. Information Commissioner, AIR 2009 AP 73 (paras 14 and 17).

3. PROOF Once a document is held to be a public document and it is properly proved as required by Section 78, the presumption in respect of the public document would apply irrespective of the fact whether those public documents are of British India or of a foreign state. 72 A question arose whether a statement recorded under Section 164,Cr.P.C., during investigation is a public document and whether the accused has got a right to inspect it and obtain a certified copy of it. The Madras High Court, after reviewing the case law, observed (1) the statements recorded underSection 164,Cr.P.C., would be public documents falling underSection 74,Cl. (1) (iii ) of the evidence Act. (2) the accused will be entitled to copies of the same as a person interested. (3) but his right to obtain such copies before the filing of the charge sheet has been taken away by implication, by the provisions of Section 173of the Cr.P.C., and (4) he will be entitled to the copies of the documents only if on charge sheet is filed.73 The Madras High Court has held that the accused had no right to inspect or obtain certified copies of statements or confessions recorded under Section 164,Cr.P.C. before the charge sheet was filed. 74 In the Calcutta case 75 the court had to deal with a statement recorded during investigation by the Excise Officer under the Bengal Excise Act . It was observed that Section 173(4) was not made applicable by Section 74 of the West Bengal Excise Act though Sections 160to 171 of Cr.P.C. were made applicable. It was held by the Supreme Court that the discovery and arrest of the accused being one of the essential steps in the course of investigation, the confessional statement may be taken to have been recorded during the course of investigation within the meaning of Section 164,Cr.P.C., but as the recording magistrate was a second class Magistrate not specifically empowered in that behalf, the record is inadmissible in evidence at the trial. Even underSection 74 it cannot be treated as a public document and admissible under Section 80 of this Act . 76 Merely production of a document kept in police custody will not be a proof of it as a public document. Unless the officer who recorded the statement is called for and examined, those documents cannot be said to be proved, particularly when the person who recorded the statement was very much alive. 77 72 Lab Haribansha v. Nikunja Behari, ILR 1960 Cut 230, relying on Maharaj Bhanudas v. Krishnabai, AIR 1927 Bom 11; Abanti Jena v. Priyambada Jena, AIR 2000 Ori 156 (paras 3, 4 and 5). 73 State of Madras v. G. Krishnan, AIR 1961 Mad 92(FB) . 74 Emperor v. Muthia Swamiyar , ILR 30 Mad 466. 75 Sunil Kumar Datta v. State of W.B., AIR 1963 Cal 431. 76 Nikaram v. State of H.P., AIR 1972 SC 2077; State of U.P. v. Singhara Singh, AIR 1964 SC 358; Nazir Ahmed v. Emperor, AIR 1936 PC 253; State of Madras v. G. Krishnan, AIR 1961 Mad 92. 77 Shrawan Nathu Kannuar v. A.S. Kannuar, 1997 CrLJ 491(Bom) .

4. DOCUMENTS FORMING THE ACTS OR RECORD OF THE ACT S A check memo which is required to be maintained by the officer in charge of the counting table is a document forming record of the acts of a public officer, and therefore a certified copy given by the collector in whose custody the document is kept, can be admitted in evidence in proof of the contents of the original document. 78 The word "acts" in the phrase "documents forming the acts or records of

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the act s" is used in one and the same sense. The act of which the record made is a public document must be similar in kind to the act which takes shape of form in a public document. The kind of acts which Section 74 has in view is indicated by Section 78. The act s there mentioned are all final completed acts as distinguished from act s of a preparatory or tentative character. The inquiries which a public officer may make whether under the Criminal Procedure Code or otherwise may or may not result in action. There may be no publicity about them. There is a substantial distinction between such measures and the specific act in which they may result. It is to the latter only that Section 74 was intended to refer. 79 A document which is brought into existence as a result of a survey, inquiry or inquisition carried out or held under lawful authority is not admissible in evidence as a public document unless the inquiry was a judicial or quasi-judicial inquiry and the document is not only available for public inspection but was brought into existence for that very purpose. The statements in a document tendered in evidence as a public document should be statements with regard to matters which it was the duty of the public officer building the inquiry to inquire into and report on. 80 T AYLOR O N EVIDENCE 81 states: The records of courts of justice and other judicial writing also constitute public documents. Amongst the above class of documents come the records of the old superior courts of law and equity and the Quasi Records of those courts. The expression "Quasi records" embraces the following:-9)   Depositions (2) Affidavits (3) Bills (4) Answers (5) Orders (6) Decrees and (7) Rules of the Court (8) and certain other documents, which, though not strictly records, partake so much of their nature that they can be proved by means of copies to the same extent as records and are subject generally to the same rule of evidence. The Madras High Court has held that it is unwarranted to place restrictions on the words "document forming the acts or the records of the act s" and to say that they should be confined to those parts of the Income-tax records which the Income Tax Officer had himself prepared, and to exclude the documents which he had himself called for e.g. , record returns, profits and loss statements, etc. , or which has been admitted to the record for the purpose of assessment. 82 An endorsement of a Magistrate on a complaint and the order sheet in the case transferring the same to another Magistrate for disposal is admissible under Section 74 as a being the act of the judicial officer. Similarly, the copy of the order sheet in the case is admissible as it is the act of the court. 83 The records of acts of public tribunals are public records which the parties to the adjudication are entitled to inspect and obtain their certified copies. 84 Documents forming acts, or record of acts, of police and the magistrate exercising the power under Cr.P.C. are public documents. 85 Where there were two documents of two different public schools, showing same age of a child and were in existence anti litem motem , it was held that there could be no ground to doubt the genuineness of the document and it can be treated as evidence, but Section 74 would be irrelevant. 1 A mistake in regard to recording of the age of the prosecutrix as recorded in the first information report (FIR) or the first medical document or even in her supplementary affidavit should yield to the public documents like the school leaving certificates which were produced by the prosecution. 2 Where the copy of the alleged power of attorney was issued by the office of the Sub-Registrar, the formal proof of such a public document was not required under the law unless it had been disowned by its executants or its genuineness had been challenged. 3 Distinction between Record of the Court and Record of Act of the Court: There is a distinction between the record of the court of and the record of the act of the court. It is only the record of the act of the court which is a public document, therefore a compromise petition filed by the parties before a court is not a public document. So also the pleadings of the parties before the court, are not public documents. But orders or decrees passed by the courts are public documents as they are the record of the act s of the court. The following are public documents:

220

The judgment of a court. 4 A certified copy of a decree of court.

5

Certified copy of an order of the probate court with a copy of the will annexed. A certified copy of a registered private sale-deed. A statement of a witness in a Criminal Court. The records of acts of public tribunals.

6

7

8

9

Notes of evidence recorded by a court of small causes.

10

A written order for the issue of a search warrant by a magistrate, or court.

11

A warrant issued by a court. 12 A report submitted by police officer for granting remand of the accused or for retention of remand.

13

The F.I.R. filed in the court. 14 An affidavit filed in a suit in the Court and certified copy of the same issued by the Court.

15

The records of a nationalised bank. 16 Statements of witnesses recorded by a public officer who is authorised to record such statement. A charge sheet filed by the police against an accused.

17

18

A school master comes within the purview of executive officer and a copy of a certificate given by him is admissible in evidence if properly certified. 19 Notifications issued by the Central or State Governments or by a department of any state government. 20

Hindu Marriage Register 21 Documents furnished to the Press Council of India for its reconstitution.

22

Circulars issued by the General Manager of Delhi Electric Supply Undertakings.

23

The Dag Chitha containing entries made according to the rules under Manipur Land Revenue and Land Reforms Act .24 Pariwarik register prepared under Bihar Panchayat rules. 25 The Rojnamcha maintained by the Patwari in the course of his public duties containing an occurrence which had occurred within the knowledge of the Patwari or his own act as an official of the revenue department. 26 Quinquennial registers in West Bengal. 27 The resolutions of allotment and recommendations of allotment committee for allotment of sites by the Improvement Trusts. 28 Adangal and "B" change register under the Board standing orders.

29

A file of papers containing official communications maintained according to the practice is a public document within Section 74 where the copy of the sanction for the prosecution has been lost, original from the file can be produced as secondary evidence. 30 The official register containing the copies of communications maintained according to official practice. 31

Original notification in the form of an official gazette under Bihar Private Protected Forest Act of 1947. 32

Proceedings of a market committee established under the Madras Act 20 of 1933.

33

221

The death register maintained under the Municipal Act. 34 Birth registers maintained under the Municipal Act . 35 Birth entries in police registers maintained under the Berar Patels and Patwaria Law, rule App. XI-B. 36

The visa issued by a visa officer of the Government of India at a place situated in a foreign country. The register for admission or withdrawal of student in a Municipal High School.

37

38

The record of an income-tax case must be regarded as the record of the acts of the income-tax officer in making the assessment and any document properly on the record is just as much a public document as the final order of assessment itself. Consequently, the income-tax return and the statement in support of it would fall within the meaning of public documents. 39 A confidential report on the method adopted by the election officer as to the counting of votes at an election, by show of hands, submitted to the additional District Panchayat Officer and to the regional Inspector of Municipal Councils and Local Board. 40 The Electoral Roll prepared under a statute. 41 Maintenance application filed before the Salar Jung Estate Committee. 42 An outdoor ticket and the discharge certificate granted by the authorities of a public hospital.

43

Injury report 44 Wound Certificate 45 or Medico Legal Case (MLC) report 46 prepared by a medical officer of government hospital. Site Inspection Map and Site Inspection Memo prepared by the Police Officer in discharge of his official duties. 47 The food grains procurement stock register.

48

An agreement between a Maharaja setting up a public trust, namely gurdwara, on the one hand and the Government on the other, for setting-up a board of management for managing the affairs of temples including the gurudwara. 49 Survey and settlement report. 50 The certificate issued by Taluk Surveyor after measuring the land in dispute showing that there was no encroachment on the said land. 51 Official reports about the nature of an estate.

52

Records maintained by revenue officers relating to land revenue, survey and settlement etc. e.g. ' pahanies ' and ' faisal patties '. 53 Records of the Development Authority are public documents.

54

Statement of any witness recorded by a Magistrate under Section 164 , CrPC in discharging his official duty. 55 Accounts prepared by a Revenue Officer showing the area of cultivation.

56

The method adopted by the settlement authorities to determine the net annual yield, incorporated in the report. 57 It was held by the Kerala High Court that the entries in the cultivation registers of paddy producers and rent receivers are admissible, even without examining the public servant who made the entries and that the combined effect of Sections 35(e), 76, 77 & 79 is to enable proof of public documents being offered by production of certified copies. 58 The Ayakut accounts maintained for revenue purposes, showing the sources of revenue in each village and giving the limits of the villages to which they refer. 59 Permits issued under the Motor Vehicles Act .60

222

A pedigree contained in a note book which was prepared under Section 332 of U.P. Court of Wards Manual. 61 The statements of vendor and the vendee in a mutation proceedings before the settlement officer. Money lender's register maintained in a Sub-Registrar's office. An entry in an assessment list register.

62

63

64

A decree of the High Court of Calcutta in 1982 as a public document, can be proved by a certified copy under Section 65(e) and a presumption as regards the genuineness of the certified copy does not arise by virtue of combined operation of Sections 76, 77 and 79 and Section 86 does not stand in the way. 65 A statement of a witness in a criminal court is a public document and a certified copy is admissible.

66

'Base map' showing boundaries and limits of a municipal area is a public document and is admissible in evidence. 67 Where disciplinary proceeding was initiated against the respondent for obtaining employment by showing higher percentage of marks in SCC examination but original documents like his application and the certificate were not available so the charge was proved on the basis of the extracts produced from "Z" Register and the oral evidence of another employee who was conversant with the practice of making entries in the Register, it was held that the said Register was a public document. 68 The documents indicating salary and allowances payable to the deceased on the date of his death in an accident, issued by the concerned department, do not require corroboration or any evidence to prove them. 69 Disability Certificate issued by the Medical team of experts.

70

The following are not Public documents: It has been held that the documents which consist of plaint, written statement, affidavits and petitions filed in a Court cannot be said to form such act s or records of acts as are mentioned in the section, and so they are not public documents. 71 However The Madras High Court has held that plaints and written statements are public documents. 72 It is submitted that this view is probable as it accords with the view expressed by T AYLOR 73 and of B EST 74 . If plaints and other documents filed by the parties in Courts are treated as public documents, a certified copy would be admissible which would avoid the necessity of producing the original thereby avoiding the inconvenience to courts and the risk in transmitting the records to other courts. Any petition filed for obtaining an order from the Court on affidavits filed in support of the petition. Copies of the execution petition or a counter affidavit filed in a Court. A compromise deed executed by the parties. Post mortem report and the inquest report.

75

76

77

78

The discharge certificate issued by the Durgapur Steel Plant Hospital and the medical bill given by the Durgapur Steel Authority of India. 79 The death certificate issued by a Police Station.

80

Statement recorded by a Magistrate in his executive capacity, in departmental enquiry.

81

The index of sales and the multiple derived on its basis by the land acquisition officer, for determining the market value of the land and so its certified copy is inadmissible. 82 Statement of witnesses recorded by a police officer during investigation.

83

A report made by a police officer in compliance with the provisions see 157 and 168, CrPC . A report of Naib Tahsildar on the basis of spot inspection.

2

1

223

Statement of persons recorded under Section 74 of the Railway Property (Unlawful Possession Act ) of 1966. 3 Original registered will. 4 Original registered document (here sale deed). 5 Certified copy of registered power of attorney.

6

Certified copy of a plaint. 7 Affidavits and letters. 8 Letter written by a manager of a District Co-operative Bank to a customer, unless it is shown that the manager is a public officer according to Section 2,Cl. (17)(h ), C.P.C.9 A document which purports to be a letter or report of an executive official. Application for allotment of a site to the Improvement Trust.

10

11

The notes prepared by the inspector of assessment for the purpose of assisting the executive officer in fixing the annual values of lands and buildings under the Calcutta Municipal Act. 12 The translation of a private document maintained by a government office for its use. An award annexed to a petition.

13

14

Insurance policy. 15 A certificate issued by the R.T.O. stating that no driving licence was issued to a certain driver, as the same was issued under no statutory rule, would remain a hearsay and not a public document. 16 Report of expert. 17 Report of a stamp expert as to the date of issue of the stamp.

18

A letter to a Collector by the president of a public meeting giving details of the proceedings of the meeting. 19 Where Civil Surgeon sent a memo reporting the age of the accused, in compliance with the magistrate's request, it was held that it was not an act of a record of his act as a public officer, as the memo contained the opinion of the Civil Surgeon as an expert. 20 Report of the officer effecting delivery of possession in land restoration proceeding.

21

78 Banamali Das v. Rajendra Chandra, AIR 1975 SC 1863. 79 Queen Emperor v. Arumugam, (1897) 20 Mad 189, 197 FB. 80 Thrasyvoulos Ioannou v. Papa Christoforor Demetriou, AIR 1952 AC 84. 81 10th Ed Section 1534, p. 1108. 82 Narasimha Rama Rao v. Venkatramayya, AIR 1940 Mad 768 FB. 83 Mishrimal v. Sohan Raj, (1959) 9 Raj 934. 84 Mahaboob Shahi Kulbarga Mills Co. Ltd. v. K. Vittal Kamath, AIR 1959 Mys 180. 85 V.J. Thomas v. State of Kerala, AIR 1970 Ker 273. 1 Umesh Chandra v. State of Rajasthan, AIR 1982 SC 1057. 2 State of Maharashtra v. Mohd. Sajid Hussain Mohd. S. Hussain, (2008) 1 SCC 213 (para 32 and 21). 3 Nurul Hai v. Munni Devi, AIR 2008 (NOC) 183(Utr) . 4 Ladli Prasad Zutshi v. Emperor, AIR 1931 All 364; State v. G. Veerana Goud, AIR 1959 Mys 52. 5 Collector of Gorakhpur v. Ram Sunder Mal, AIR 1934 PC 157; Gaibandha Loan Officer v. (Mst) Saiyadunneesa, AIR 1943 Cal 114; Hulasi v. Mohan Lal Khatane, (1960) 10 Raj 94.

224

6 Habiram v. Ramnath, 19 Cal WN 1068 : AIR 1919 Cal 676. 7 Manindra Kumar Dey v. Mahendra Suklabaidya, 1999 AIHC 2147 (para 14) (Gau). See also K.M. Shaffi v. Dayamathi Bai, 1999 AIHC 4071 (para 22) (Kant). 8 Saudagar Singh v. State, (1974) 76 Pun LR 57; Firm Ramchend Bhagirath v. Gonpatram, (1972) WLN 1116(Raj) . 9 Mahaboob Shahi Kulbarga Mills Ltd. v. Vittal Kamath, AIR 1959 Mys 180. 10 Zohara Begum v. Ghouse Quadri, 1969 Mad LJ 702(Cri) . 11 Kalinga Tubes Ltd. v. Suri, AIR 1953 Ori 49. 12 Easwaramurthy v. Emperor, AIR 1944 PC 54; Kantilal Ambalal v. State, AIR 1968 Guj 100. 13 Circle Inspector of Police v. Velu, (1973) 1 Ker 50. 14 Channappa v. State, 1980 CrLJ 922(Kant) . See also Shyam Lal v. State of U.P., 1998 CrLJ 2879(All) ; J. Shiva Shanker v. Deputy Superintendent of Police, 2002 CrLJ 3167, 3168 (para 4) (AP) : 2002 (1) Andh LT (Cri) AP 572 : 2002 (3) Cur CrR 431. 15 Desh Raj v. Dharam Veer Singh, 2005 AIHC 4188, 4190 (para 8) (All). 16 Gorantla Venkateshwarlu v. B. Demudu, AIR 2003 AP 251. 17 Mohanial v. Shri Sayaji Jublee Cotton and Jute Mills Co., AIR 1965 Guj 96. 18 R v. Arumugam, AIR Mad 189 (FB). See also Tola Ram v. Dist. Judge, AIR 2008 (NOC) 2310(Raj) . 19 Maharaj Bhanudas v. Krishnabai, (1926) 28 Bom LR 1225 : 51 Bom 716. 20 Janukhan v. State, AIR 1960 Pat 213; Chacko Pyli v. State of Kerala, (1966) 1 Ker 320; Somanna v. Subba Rao, AIR 1958 AP 200; Mathuradas v. State, AIR 1954 Nag 296; Pannalal v. State, AIR 1959 MB 84; Deputy Managing Director, CESC Ltd. v. Naba Kumar Mondal, AIR 2000 Cal 97 (para 14). 21 Manjula v. Mani, 1998 CrLJ 1474 (para 16) (Mad). See also Kashi Nath Naskar v. Aparupa Naskar, 2003 CrLJ 1201, 1202 (para 5) (Cal) : 2003 (3) All CrLR 647 : 2003 (2) Cal HN 190 : 2003 (2) DMC 313 : 2003 (2) Hindu LR 466 : 2003 (2) Rec CrR 652. 22 Indian Federation of S. & M. Newspapers v. Press Council of India, AIR 1996 Del 90 (para 5). 23 State (Delhi Admn.) v. Dharam Pal, 1980 CrLJ 1394. 24 Ningombam Parijan Singh v. Chief Commer., Govt. of Manipur, AIR 1969 Manipur 79. 25 Toral Mahto v. Chandreshwar Mahaton, AIR 1972 Pat 13. 26 Umar Din v. Jamna Das, 2003 AIHC 2064, 2066 (para 18) (HP). 27 Ganesh Chandra v. State of West Bengal, (1972) 1 Cal 171; Sreemutty v. Bishonath Datt, 7 WR 14. 28 Krishna Rao v. Board of Trustees, (1972) 1 Mys LJ 101. 29 Raghunath Panigrahi v. Udayanath Sahu, ILR 1969 Cut 214. 30 Public Prosecutor v. Sada Gopan, AIR 1953 Mad 785; Ravi Datt v. State, AIR 1956 Pepsu 12; State v. Gurdeo Singh, AIR 1956 Pepsu 13; Sagar Mal v. State, AIR 1951 All 816; State v. Sagarmal, AIR 1951 All 515; State v. Jangir Singh, AIR 1954 Pepsu 84; Gayadin v. State, AIR 1958 All 39; State of Bihar v. Ghulam Saruar, AIR 1965 Pat 393. 31 Public Prosecutor v. Sadagopan, AIR 1953 Mad 785; Octavious Steel Co. v. Endogram Tea Company, AIR 1980 Cal 83. 32 Jai Gopal v. Divisional Forest Officer, AIR 1953 Pat 310. 33 Secretary Mallabar Market Committee v. Bapputty, (1962) 2 CrLJ 546(Ker) . 34 Uli Bewa v. Mana Bewa, ILR 1963 Cut 451; Gopichand Arya v. Bedamo Kuer, AIR 1966 Pat 231; Mariklal Shah v. Haralal, 1950 Cal 377.

225

35 Venajakahamma v. Gopalakrishna, 1970 Mys 305; Manikro Jairamji v. Deorao Baeiram, AIR 1955 Nag 290. 36 Dalim Kumar Sain v. Nandarani Dossi, AIR 1970 Cal 292; (Municipal Birth Register extract) ; Anilkri shna Basak v. Sailendranath Paul, (1965) 69 Cal WN 593; (Municipal Birth Register extract). 37 State v. Abdul Sattar, AIR 1963 Guj 226(FB) ; reversed on facts to Abdul Sattar v. State of Gujarat, AIR 1965 SC 810; State v. Abdul Rashid, AIR 1961 Pat 112(DB) . 38 Subbarao v. Venkata Rama Rao, AIR 1964 AP 53(DB) . 39 Sreeramulu v. V.V. Raju, ILR 1977 AP 267. 40 Raja Gopala Rao v. Election Commissioner, Vijiaawada, AIR 1957 AP 339. 41 Kistaw Sahu v. Thakur, AIR 1972 Ori 158(FB) ; Aina Devi v. Bachan Singh, AIR 1980 All 174; Naladhar Mahatatra Sen v. Debya Seva, AIR 1991 Ori 166. 42 Chand Sultana v. Khurshid Begum, AIR 1963 AP 365. 43 Ramani Baladevi v. Kamallal Malakar, AIR 1965 Tri 17. 44 Balgopal Pande v. State, 1990 CrLJ 1848 (Ori-DB). 45 M.D., N.E.K.R.T.C. Gulbarga v. T. Prabhakar, 2003 AIHC 1585, 1586 (para 7). 46 Dalip Kumar v. State, 1995 CrLJ 1742 (para 15) (Del). 47 Rajasthan State Road Transport Corporation v. Nand Kishore, AIR 2001 Raj 334 (para 7). 48 Madanlal Jajodia v. State, AIR 1958 Ori 1. 49 Kabul Singh v. Ram Singh, AIR 1986 All 75. 50 Brajasunder Deb v. Rajendra Narain, AIR 1941 Pat 260; Ramlal v. Ghansham Das, AIR 1923 Mad 150. 51 Nakka Sriramulu v. State of A.P., 2003 AIHC 460, 463 (para 6). 52 Martand Rao v. Malhar Rao, AIR 1928 PC 10. 53 K. Pedda Jangaiah v. Mandal Revenue Officer, Moinabad, 1996 AIHC 1006(AP) (para 4). See also J. Shiva Shankar v. Deputy Superintendent of Police, 2002 CrLJ 3167, 3168 (para 4) (AP) : 2002 (1) Andh LT CrAP 572 : 2002 (3) Cur CrR 431; M. Chandraiah v. C. Narayana, AIR 2008 (NOC) 2044(AP) . 54 Roshan Lal Khandelwal v. Dr. Jagdish Chand, AIR 2008 (NOC) 2043(AII) : 2008 (4) ALJ 70. 55 Guruvindapalli Anna Rao v. State of A.P., 2003 CrLJ 3253, 3254 (para 7) (AP) : 2003 (2) Andh LD (Cri) 60 : 2003 (3) Crimes 72 : 2003 (3) Cur CrR 84 : 2003 (4) Rec CrR 685. 56 Narayanaswami v. Chinitalapati, 22 MLJ 393. 57 Manu Pujari v. State of Orissa, AIR 1965 Ori 49. 58 Karicherry Chardan Nair v. Edayillan Kunhambu Nair, AIR 1982 Ker 232. 59 Sivasubramanya v. Secretary of State, (1884) ILR 9 Mad 285. 60 In re : Sabir Ahmed, AIR 1960 MP 318. 61 Shyam Pratap v. Collector, AIR 1946 PC 103. 62 Sapam O.L. Devi v. Takhellambam, AIR 2005 Gau 101, 107 (para 20). 63 Dwaraka Prasad v. Firn Bhagat Ambica Ram Lalchand, AIR 1974 Pat 103. 64 Damumal Handaldas v. Shevantibai Bai, AIR 1965 MP 223(FB) . 65 Hulasi v. Mohanlal, ILR 1960 10 Raj; Kishenlal v. Ramachandramal Jagannath, AIR 1953 Raj 216.

226

66 Saudagar Singh v. State, (1974) 76 Pun JLR 57 : 1972 WLN 1116(Raj) . 67 Asstt. Commissioner of L.A.O., Yadgir v. Mohd. Aziz Rahaman, 1996 AIHC 4278 (para 8) (Kant). 68 Union of India v. A. Nagamalleshwar Rao, AIR 1998 SC 111. 69 Subhadara Kumari v. Lallu Ram, AIR 1996 Del 64 (para 1). 70 Oriental Insurance Co. Ltd. v. Surendra Umrao, 2008 AIHC 477 (para 3) (AII). 71 Maliprasad v. Brijkishore Singh, 1942 Oudh 309; Manbodh v. Hirasai, AIR 1926 Nag 339; Akshoy Kumar v. Sukumar, AIR 1951 Cal 320; Gulab Chand v. Sheo Karan Lal, AIR 1964 Pat 45; following Tarkeshwer Prasad v. Devendra Prasad, AIR 1926 Pat 180; Usuf Hussan v. Raunaq Ali, AIR 1943 Oudh 54; Dr. Kamal Krishnan v. Kailash Chand, (1977) 1 Delhi 97. See also Bawa Singh v. Harnam Singh, AIR 2008 (NOC) 2574(P & H) . 72 Narasimha Rama Rao v. Venkataramanayya, 1940 Mad 168(FB) . 73 10th Ed., Section 1534, Page 1108. 74 8th Ed., Section 218. 75 East India Trading Co. v. Badat and Co., AIR 1959 Bom 414. 76 Venkatalingama v. Panaganti Parthsarathi, AIR 1942 Mad 558. 77 Saraswati Bala v. Surabala Dassi, AIR 1957 Cal 57; Govind Kesheo v. State, AIR 1955 Nag 236; Mangat Ram v. State of M.P., 1966 CrLJ 967 (2) (Guj). 78 State v. Gian Singh, 1981 CrLJ 538(Del) ; Warrant issued by police--Kantilal v. State of Gujarat, AIR 1968 Guj 100. 79 Sudhir Bhuiya v. National Insurance Co. Ltd., 2005 AIHC 3135, 3136 (para 9) (Cal). 80 Hardayal v. Aram Singh, AIR 2001 MP 203 (para 11). 81 Government of Bengal v. Santiram Mondal, AIR 1930 Cal 370; Parkash Rai v. J.N. Dhar, AIR 1977 Del 73. 82 P.R. Durg Modi v. Collector, AIR 1975 MP 57. 83 Sunil v. State, AIR 1963 Cal 431; Isab Mandal v. Emperor, ILR 28 Cal 148; See contra Natabar Jana v. State, AIR 1955 Cal 138. 1 Sunil v. State, AIR 1963 Cal 431. 2 Radhey v. Board of Rouenul, AIR 1990 All 175 following State of U.P. v. Ramsri, AIR 1976 All 121. 3 Babulal v. State, 1977 CrLJ 2008(All) . 4 Parsa Singh v. Parkash Kaur (Smt.), AIR 1976 Punj 235; Padaman v. Hanwanta, AIR 1915 PC 111; Pannammal Sundaram, 23 Mad 499. 5 Rekha Rana v. Ratnashree Jain, AIR 2006 MP 107, 109-10 (para 8), overruling Nawab Saheb v. Firoz Ahmad, 2002(5) MPLJ 438 : 2003 AIHC 544. 6 Bidhan Paul v. Paresh Chandra Ghosh, AIR 2002 Gauhati 46, 48, relying on, Narattam Das v. Md. Masaddarali Barbhuinya, (1991) 1 Gauhati LR 197 which was followed in Mahindra Kumar Dey v. Mahendra Shukla Baidya, 1999 AIHC 2147. 7 Shamlata v. Yishweshwara Tukaram Giripunje, AIR 2008 Bom 155, 156-57 (para 5). 8 Parkashrai v. J.N. Dhar, AIR 1977 Del 73. 9 Keshavrao v. Chandrabhan, AIR 1980 Bom 380. 10 Fazl Ahmed v. Crown, 1913 PR No. 1 of 1914 (Cri). 11 Krishna Rao v. Board of Trustees, (1972) 1 Mys LJ 101. 12 Jitendra Nath v. Makhanlal, (1957) 61 Cal WN 175.

227

13 Thakur Krishna v. Kanheryalal, AIR 1961 All 206 relied on Secretary of State v. Chimanlal, AIR 1942 Bom 161; Bihari Lal and dissended v. Rajendra Narayana Singh , AIR 1932 Pat 157; Katikineni Yenkata Gopala Narasimha Rama Rao v. Chitluri Yenkataramayya, AIR 1940 Mad 768(FB) ; Naim Singh v. Tikam Singh, AIR 1955 All 388; Raja Gaundan v. Raja Gaundan, ILR 17 Mad 134; Munshi Ram v. Bai Sakhi Ram, AIR 1947 Lah 355. 14 East India Trading Company v. Badat and Company, AIR 1959 Bom 414, reversed on other point in Badat & Co. v. East India Trading Co., AIR 1964 SC 538. 15 New India Assurance Co. Ltd. v. Krishna Sharma, AIR 1998 Del 386, dissenting from United Insurance Company Ltd. v. Kamla Rani, 1997 ACJ 1081(P&H) . 16 National Insurance Company Ltd. v. Ajay Deshmukh, 1998 AIHC 5011 (para 6) (MP). See also National Insurance Company Ltd., Sultanpur v. Shashi Bala Gupta, 2000 AIHC 2224 (para 2) (All). 17 Basudeo Narain Sinha v. State of Bihar, 2008 CrLJ 767 (para 5). 18 Kapil Charam Patuaik v. Artrbandhar Misra, ILR 1965 Cal 1; Baraik Karan v. Bikram Sahu, AIR 1932 Pat 352. 19 Collector v. Sarat, 55 Cal LJ 558. 20 Abdul Halim Khan v. Raja Saadat Ali, AIR 1928 Oudh 155. 21 Junul Surin v. Silas Munda, AIR 2008 Jhar 82, 83-84 (paras 9 and 10), relying on P.C. Purushothama Reddiar v. S. Perumal, AIR 1972 SC 608.

5. PUBLIC RECORDS KEPT OF PRIVATE DOCUMENTS [CLAUSE 2] A true copy of account of election expenses lodged with the district election officer, under the Representation of People's Act, and the rules thereunder, is a public record of a private document. 22 A certified copy of the registered mortgage deed may be admissible in evidence under Section 65, C1. (e ) of the Evidence Act, as secondary evidence, as it is a public record of a private document, but that does not dispense with the proof of act ual execution. 23 Merely because the public records kept in the state of private documents are defined as public documents under Section 74 of the Evidence Act, that itself would not amount to contend that any document executed between two or more parties by itself would form a public document. The record pertaining to such document kept by the State though in the form of public record may form a public document, any such private document by itself cannot constitute to be a public document and it will continue to be a private document executed by the private parties. As such document would be a document enumerated under Sections 75 of the Indian Evidence Act . 24 A memorandum of association, of a return in the custody of a registrar of Joint Stock Company would be a public record of a private document under Section 74(2). Secondary evidence by way of certified copy thereof is admissible. 25 The original receipt executed by an individual, and registered under the Registration Act , is not a public record of a private document, as the original has to be returned to the party. 26 It cannot be said that a private deed of trust which has been registered is a private document of which public record is required to be kept; as such, a certified copy of the deed cannot be admissible in evidence under section. 27 A deed or a document which is registered, but the entry is made in a wrong book in the registrar's office. The deed is properly registered. 28 The register of firms containing forms or registers under the Partnership Act . 29 The register maintained in the registrar's office wherein copies of documents registered are entered. The sale deeds or other documents which were filed alongwith by the plaintiff in a Court of law. 22 Kandru Majhi v. Budnesher Majhi, (1972) 2 Cal 618.

31

30

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23 Subudhi Pradhan v. Raghu Bhavan, AIR 1962 Ori 40 dissention from Padmamabhachari v. Sectuapathi, (1954) 1 MLJ 75(Andh) ; Saimuddin v. Abejaddin, AIR 1979 Gau 14(saledeed) ; Fazalshek v. Abdur Rehman, AIR 1991 Gau 17(wakfdeed) . 24 Purushottam v. A.N. Jog, 2005 AIHC 861, 863 (para 9) (Bom). 25 Finani Properties Private Limited v. M. Gulamali, AIR 1967 Cal 390. In re : A.B. Patrika, AIR 45 Cal 169. 26 Gopaldas v. Thakurji, AIR 1943 PC 83. 27 Rabindra N. Das v. Santhosh Kumar Mitra, AIR 1975 Cal 381. 28 Satindranath v. Jatindranath, AIR 1935 PC 165 : 62 IA 265. 29 Kapurchand v. Laxaman Trimbak, AIR 1952 Nag 57; Chhotelal v. Md. Hussain, 1955 VP 44. 30 Rama Chandra Majhiji v. Hambai Majhi, 1989 Ori 27. 31 Jagadish Chandra v. State of Gujarat, 1989 CrLJ 1724(Guj) .

6. RECORDS OF AN INCOME-TAX CASE It is stated by the full bench of the Madras High Court. "It would be putting an unwanted restriction on words 'documents forming the acts or records of the act s' in Section 74, Evidence Act to say that they should be confined to those parts of Income-tax records which the income-tax officer has himself prepared and to exclude documents which he has himself called for and which have been admitted to the record for purposes of the assessment. The record of an income-tax case must be regarded as the record of the income-tax officer in making his assessment and any document properly on record is just as much a public document as the final order and assessment. A profit and loss statement and a statement showing the details of not income filed by an assessee in support of his returns are public documents under Section 74 Evidence Act, of which certified copies would be admissible under 76. 32 In the case of Income-tax returns the question arises whether secondary evidence can be produced of the return on the ground that it is a public document under Section 74, Evidence Act. In some cases it was held that Income-tax returns being made confidential under Sections 54 of the Income-tax Act certified copies cannot be admitted in evidence.33 In Devidatt v. Shriram, 34 the reason given for inadmissibility of secondary evidence was that the assessee had no right to inspect the original documents in the custody of the Income-tax officer and the latter was not bound to give certified copies to the assessee on demand. It was considered that the words "right to inspect" in Section 76, Evidence Act excludes all such documents as a Government officer has a right to refuse to show on the grounds of State policy, privilege etc. However in Venktramana v. Varalalu 35 it was held that there was nothing in Sections 54 , Income-tax Act which precludes the admissibility of a statement made by the assessee on oath before the income-tax officer. But they held, agreeing with the Bombay High Court inDevideth's case 36 , that the income-tax return is not a public document. In Mythili v. Janaki 37 the question whether the income-tax return is a public document was discussed at length and it was held that it was not a public document as it was made by an assessee. In their opinion to allow a person who comes into possession of a certified copy of a return to produce it and prove the contents would be defeating the express provisions of Sections 54 , Income-tax Act . After considering all these decisions, the full bench of the Madras High Court inVenkata Gopala Narasimharao v. Venkataramanayya 38 held that while Section 54of the Income-tax Act prohibits the disclosure of matters connected with the assessment and prohibits a court from requiring a public servant to produce the return or other documents mentioned in that section, it does not follow that the court may not admit in evidence those documents. This will depend upon the provisions of the EvidenceAct. The return and other documents are public documents and certified copies will be admissible under Section 65(e) read with Sections 74 to 77 of the Evidence Act . In Promotha Nath v. Nirode Chandra Ghose, 39 it was held that while there can be no objection to the sole assessee using certified copy of an assessment order in evidence, it would be a staring thing if a joint assessee were permitted to use a copy of his co-assessee.

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They further held that as there is no provision giving an assessee a right to inspect the assessment order, it does not fall within Section 76 and the assessee has no right to demand a certified copy and they can not be produced in proof of the contents under Section 77. They relied on Anwar Ali's case 40 and Devidatt case 41 . In Emperor v. Osman Chotani, 1942 Bom 289 it was held that Section 54, I.T. Act does not prevent the assessee from disclosing the contents of the documents specified in Section 54, I.T. Act nor does it prevent a police officer who has lawfully seized the documents from income-tax authorities from producing them. All these cases were considered in Tulsiram v. Smt. Annibai 42 . The Supreme Court, affirming the decision in Tulsiram v. Anni Bai, 43 and held that the son of an assessee was entitled to produce the assessment orders. It is submitted that the view taken by Madras High Court 44 and in other cases which hold the same view, is correct. The prohibition contained in Section 54, I.T. Act is only in regard to the officers of the income-tax department from producing the document, or give certified copies to strangers. It is always open to the assessee or his representatives either to inspect the assessment orders or the returns and to obtain certified copies. Hence, a certified copy obtained by the assessee or his representative would be admissible while a certified copy obtained by a stranger (obviously illegally) would not be admissible. The case of a joint assessee considered in 45 would stand on the same footing as a copy obtained by a stranger if sought to be relied on against the co-assessee. The Supreme Court while referring to that case also did not express any opinion on the question of production by third parties. 46 32 Narasimha Rama Rao v. Venkataramayya, AIR 1940 Mad 768(FB) ; Sreeramlu v. V.V. Raju, ILR 1977 AP 267; Kaka Ram Sohanlal v. Firm Thakurdas, 1962 Punj 27. 33 Anwar Ali v. Tafozal Ahmed, AIR 1925 Rang 84 : ILR 2 Rang 391. 34 AIR 1932 Bom 291 : ILR 56 Bom 324. 35 AIR 1940 Mad 308. 36 ILR 56 Bom 324. 37 AIR 1940 Mad 161. 38 AIR 1940 Mad 768 FB. 39 AIR 1940 Cal 187. 40 AIR 1925 Rang 84. 41 AIR 1932 Bom 291. 42 AIR 1971 SC 671. 43 AIR 1963 Ori 11; Venkata Gopala Narasimha Rama Rao v. Venkataramayya, AIR 1940 Mad 768(FB) ; Emperor v. Osman Chotani, AIR 1942 Bom 289; Suraj Narain v. Seth Jhabhu Lal, AIR 1944 All 114; Buchi Bai v. Nagpur University, AIR 1946 Nag 377. 44 Narasimha Rama Rao v. Venkataramayya, AIR 1940 Mad 768(FB) . 45 Promoth Nath v. Nirodh Chandra Ghosh, AIR 1940 Cal 187. 46 See Rasipuram Union Motorservice v. Asst. Commissioner of I.T., AIR 1957 Mad 151(DB) ; Kader Kutty v. Ag. I.T. Officer, AIR 1961 Ker 32; Naim Singh v. Tikam Singh, AIR 1955 All 388; Somanna v. Subba Rao, AIR 1958 AP 200; Muniayammal v. Third Addl. L.T. Officer, AIR 1960 Mad 366; Vishamber Nath v. Dy. Director Consolidation, 1976 Tax LR 1063(All) ; Hiralal v. Ramanand, AIR 1959 Pat 515; R. Vantiteshiah v. Sundareswaran 1967 Ker LJ 237; Santi Ranjan v. Dasuram, AIR 1957 Assam 49; Allah Bux v. Ratan Lal, AIR All 829 (assessment order of Sales Tax Officer); Buchibai v. Nagpur University, AIR 1946 Nag 377.

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CHAPTER V OF DOCUMENTARY EVIDENCE PUBLIC DOCUMENTS S. 76. Certified copies of public documents. Every public officer having the custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees therefor, together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorised by law to make use of a seal, and such copies so certified shall be called certified copies. Explanation. --Any officer who, by the ordinary course of official duty, is authorised to deliver such copies, shall be deemed to have the custody of such documents within the meaning of this section. 1. PRINCIPLE

This section provides for the means of proof of public documents which any person has a right to inspect. There is a common law right of a person to take inspection of a document in which that person is interested for the protection of such interest. 47 Under this section every public officer having the custody of a public document, of which any person has a right to inspect, shall give that person on demand a copy of it, on payment of legal fees together with his certificate with date, name and his official title and affixing his official seal, and it would be called a certified copy. So the three things that are important are that (1) The person giving a certified copy must be a public officer having the custody of the document. (2) The document is a public document (3) The person who applies for the copy must have a right to inspect the document. Then, on payment of necessary fees the official is bound to give the copy with certificate giving the date, name etc. The explanation to the section states that when an officer is authorised to deliver such copies he shall be deemed to have the custody of such documents. Public documents are little liable to correction or alteration because the whole community is interested in their preservation. If the production of the originals is insisted upon, great inconvenience would be caused, as the same document may be required in several places at one and the same time. Secondly, there is the likelihood of the documents being lost or mutilated by frequent production and handling. To avoid these risks involved in the production of the original documents, this provision is made allowing the public officers to issue certified copies of the original. The section requires that a copy of a public document given by a public officer should bear a certificate written at the foot of such copy that it is a true copy of such document. Where a copy bears no certificate and it is not supported by the evidence of the person who prepared it, it is not admissible in evidence. 48

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B EST O N E VIDENCE 49 observed: "The number of persons interested in public documents renders them much more frequently required for evidentiary purposes; and if the production of the originals were insisted on, not only would great inconvenience result from the same documents being wanted in different places at the same time, but the continual change of the place would expose them to be lost, and the handling from frequent use would soon ensure their destruction. For these and other reasons, the law deems it better to allow their contents to be proved by derivative evidence, and to run the chance, whatever that may be if errors arising from inaccurate transcriptions, either intentional or casual. It must also be remembered that, true to the principle of executing the best evidence that the nature of the matter afforded, the law requires "that this derivative evidence should be of a very trustworthy kind" and "the law has also defined, with much precision, the forms of it which may be resorted to in proof of different sorts of public writings". Under this section the document must not only be a public document but the person concerned must have a right to inspect. It may be that document is a public document but it may not be open to inspection in which case a certified copy cannot be given, as proof of the document. This section applies only to public documents falling under Section 74 of the Act and is not applicable to other documents. 50 V ARADACHARYAR J held that Section 76 is not an exhaustive provision, much less it is a provision declaring the grant of copies illegal in any particular case, and it is only an enabling section regarding issue of certified copies. 51 The officer who is to issue the certified copy must be holding the office at the time when the copy was issued. Where a village patwari after his dismissal from service issued a certified copy of a document (Khatouni ) it was held that it could not be treated as a certified copy, as the patwari had no authority to issue a certified copy after his dismissal. 52 47 Parashuram Detaram Shamduasani v. Sir Hugh Golding Cocke, (1941) 43 Bom LR 961 : (1942) Bom 71. 48 Khadim Ali v. Jagannath, (1940) 16 Luck 230. 49 11th ED Section 485, p. 458. 50 Krishna Subala Bose (Smt.) v. Dhanpati Datta, AIR 1957 Cal 59, 63. 51 Pentapati Venkararamana v. Pentapati Varahalu, AIR 1940 Mad 308; See also Anwar Ali v. Tafozal Ahmad, AIR 1925 Rang 84; Devidutt Rammiranjan Das v. Shriram Narayana Das, AIR 1932 Bom 291. 52 Nazir Ahmad v. Pothi Ram, ILR 1950 All 300.

2. RIGHT TO INSPECT Section 76 does not state under what circumstances a person would have a right to inspect. The right to inspect may be conferred by statute.

3. SOME PROVISIONS GIVING RIGHT OF INSPECTION 2.   Order XX, Rule 20, C.P.C.: Certified copies of judgement and decrees shall be furnished on application, at the expense of the applicant. 2.   Order XI, Rule 15, C.P.C.: Every party to the suit shall be entitled to inspect the documents and to take copies. 2.   Under Section 363(5),Cr.P.C.: Any person affected by the judgment or order passed by a Criminal Court has a right to ask the Court to supply certified copies of the record which would necessarily imply the right to inspect. 53

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2.   Under the Indian Registration Act , the registrar's office has to maintain five different books. Books 1 & 2 are open for inspection by any person, who can obtain copies. In book No. 1 all documents relating to immovable property which are registered will be entered. Book No. 2 contains the reasons, if some documents were refused to be registered. Book No. 3 is in respect of wills and authorities to adopt and copies can be given only to the persons executing the documents of that type, or to their agents and, after the death of the executants, to any persons applying for such copies. Book No. 4 consists of instruments other than the documents relating to immovable property. Copies can be given to the executants or persons claiming under the documents or their representatives or agents of such persons. Book No. 5 consists of documents relating to the deposit of wills in sealed covers. Copies can be given to the testator and, after his death, to other persons who are interested in the properties of the deceased. 2.   Sections 24 of Inventions and Designs Act 5 of 1888 gives a right of inspection. Under the Act a register of inventions has to be maintained. 2.   Section 14of Special Marriage Act 3 of 1872. 1.   Section 19 of Registration of Societies Act 21 of 1860. 1.   Section 44 of the Administrator General's Act of 1913. 1.   A register of copyright about the books published in India and kept in the office of the secretary to the Government of India is open to inspection. 10.   Registrar of Joint Stock Companies keeps the documents deposited with him, and they are open for inspection by any one. 1.   Marriage register under the Christian Marriage Act15 of 1872 mentions the persons entitled to inspect and obtain copies. Similarly register of marriage under the Parsee Marriage and Divorce Act 3 of 1936 as amended in 1940. There is no general enactment conferring a right of inspection of all public documents. L INDLAY L.J. observed: "when the right to inspect and to take a copy is not expressly conferred the extent of such right depends on the interest which the applicant has in what he wants to copy, and on what is reasonably necessary for the protection of such interest". 54 Though Section 76 does not define or specify the expression 'person entitled to inspect the document.' It is well settled that the legislature intended to recognise the right generally for all persons who can show that they have an interest for the protection of which it is necessary that liberty to inspect such document should be given. 55 53 Parasuram v. Cockle, AIR 1942 Bom 26. 54 Muttar v. Eastern and Midlands Railway Company, (1888) 38 Ch D 92. See also Rex v. Justice of Strafforshine, 6 Ad EL 84 at 99, 101 this principle has been applied on India also. 55 Kaderkutti v. Agricultural I.T. Officer, AIR 1961 Ker 32; V.J. Thomas v. State of Kerala, AIR 1970 Ker 273; Emperor v. Armugam, (1891) ILR 20 Mad 189 (FB).

4. TANGIBLE INTEREST The accused who has a tangible interest in the matter, has a right to know the reason for his being committed to custody or prison. 56 Where a person has a right to have his application for allotment considered in accordance with the rules and to see that his interest was not prejudicially affected by violation of the rules he has right to inspect the records to the extent necessary for the protection of his interest. 57 In Emperor v.

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Arumugan 58 S HEPHARD J observed: "A right to inspect public documents, is however assumed in Section 76 I think it might be inferred that the legislature intended to recognise the right generally (the right to inspect) for all persons who can show that they have an interest for the protection of which it is necessary that liberty to inspect such document should be given." 59 That a person's interest in some other matter would be better served by the inspection of the document would not be sufficient to give him a right to inspect. 60 The interest should be direct and tangible interest and if a person makes out sufficient interest showing that inspection is reasonably necessary for the protection of his interest he should be entitled to a certified copy. 61 A party to a suit has a tangible interest to inspect the proceeding of the court e.g. the notes of evidence in a small cause suit. 62 A copy of a power of attorney authenticated by the registrar under Sections 37(1) of the Registration Act cannot be obtained by a person who is not a party to the deed. 63 A partner or a person claiming to be a partner in a firm is not entitled to get disclosure of the contents of a statement filed by another partner. 64 The Bombay H.C. held that the words "right to inspect" in Section 76 exclude all documents which the Government officer refuses to show, on the ground of State policy or privilege, as the Government officer has a right to refuse inspection of the document. 65 However in Katikineni Venkatagopala Narasimharao v. Chitluri Venkataramayya 66 it was held that the ground of public policy is not a sufficient reason for not issuing a certified copy of a public document and for excluding from the evidence any document which is legally admissible under the Evidence Act and is not excluded by statutory prohibition. In Emperor v. Muthia Swamiyar 67 it was held that the accused has no right to inspect or obtain certified copies of statements or confessions recorded under Section 164,Cr.P.C. before the charge sheet was filed. In a Calcutta case the Court had to deal with a statement recorded during investigation by the Excise Officer under the Bengal Excise Act. It was observed thatSection 173(4),Cr.P.C. was not made applicable bySection 74 of the West Bengal Excise Act though Sections 160to 171 of Cr.P.C., were made of application and hence there was no right to inspect or get a copy. 68 The accused is not entitled to inspect or receive the copies of a post mortem report or inquest report during investigation of the case. 69 The records of acts of public tribunals such as Labour Courts are public records which the parties to the adjudication are entitled to inspect and of which they will therefore be entitled to obtain certified copies under Section 76. 70 If a person having no right to inspect the document produces a copy obtained illegally it is inadmissible in evidence. 71 Under Section 123 of this Act the head of the department may refuse on the ground of privilege permission to inspect the unpublished official records relating to any affairs of the State provided the disclosures of such documents would be against public interest. Similarly, under Section 124 of this Act, no officer shall be compelled to disclose communications made to him in official confidence, when he considers that the public interest would suffer by the disclosure or allowing inspection of the documents. An assessee has a right to inspect the order passed on appeal by the Appellate Assistant Commissioner of Income-tax. Whether any other person has a right to inspect the document is irrelevant. It is the person who has a right to inspect that is given the right to obtain a copy. Section 54 of the I.T. Act does not bar that right of inspection and obtaining copy. 72 See also commentary in Section 74 under the head Income Tax returns and records. 56 Circle Inspector Police v. Valu, 1972 Ker LR 922 : (1973) 1 Ker 50. 57 Krishna Rao v. Board of Trustees; (1972) 1 Mys LJ 101.

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58 (1897) ILR 20 Mad 189 FB. 59 Chandicharan v. Boistab, (1903) 31 Cal 284 : 8 Cal WN 125; Para Shuram v. Cocke, AIR 1942 Bom 26. 60 Muniyammal v. IIIrd Addl. Income-Tax Offfcer, AIR 1960 Mad 366. 61 State of Madras v. Krishnan, ILR 1961 Mad 1; Annamalai Trading Company v. Hariharan Transport, 1965 MLJ 702(Crl) . 62 Annamalai Trading Company v. Hariharan Transport, 1965 MLJ 702(Crl) . 63 Bishensarup v. M. Abdul Samed, AIR 1931 All 649. 64 Promatha Nath v. Nirode Chandra, AIR 1940 Cal 187; Somanna v. Subbarao, AIR 1958 AP 200; Katikineni Venkatagopala Narasinha Ramarao v. Chitluri Venkataramayya, AIR 1940 Mad 768(FB) ; Buchibai (Smt.) v. Nagpur University, AIR 1946 Nag 377; Suraj Naraian v. Jhabbulal, AIR 1944 All 114. 65 Devi Datt Ramniranjan Das v. Shriram Narayan Das, AIR 1932 Bom 291, 297. 66 AIR 1940 Mad 768(FB) . 67 30 Mad 466. 68 Sunil Kumar Datta v. State of W.B., AIR 1963 Cal 431. 69 State v. Gian Singh, 1981 CrLJ 538(Del) . 70 Mahaboob Shahi Kulbarga Mills Company Limited v. Vittal Kamath, AIR 1959 Mys 180. 71 Banarsi Devi (Smt.) v. Janaki Devi (Smt.), AIR 1959 Pat 172. See also Anwar v. Fazal, AIR 1925 Rang 84 dissented on another aspect in Katikeni Narasimha Rao v. Chitluri Venkatramayya AIR 1940 Mad 768. 72 Resipuram Union Motor Service Limited v. Commissioner of I.T. Madras, AIR 1957 Mad 151.

5. CERTIFIED COPIES The certified copy of a public document does not require further proof by examining the person who had issued the same. 73 The law has created a legal presumption in favour of the genuineness of a document when it is in substantial, though not in strict, compliance with the provisions for the certification of a copy as contained in Section 76. A carbon copy can be treated as a certified copy of the order though it does not contain the certificate that it is a true copy, and the appeal filed alongwith the carbon copy of the order appealed against can be treated as validly presented. 74 A voter list was held to be a public document and a certified copy of it was required to be issued to any person who had right to inspect the record, on demand and on payment of legal fee. 75 In the case of a certified copy of the electoral roll or an entry therein which is required to be filed before the returning officer under Section 33(5) of the Representation of People's Act, 1951, it was held there is no reason or scope for attaching the attributes of a certified copy under Section 76 as the Act is not made applicable to it. The Representation of People's Act does not state that the certified copy should comply with the conditions laid down in Section 76. 76 By long usage, the term "certified copy" has acquired a special meaning, in view of the provision in Section 76 and that term, when used in connection with an appeal and with reference to the order against which the appeal is filed, has always been understood as the copy which the party preferring the appeal obtains under Section 76, on payment of the necessary fee. 77 It is the copy of the order passed on appeal by the Assistant Commissioner, furnished to the assessee on his application that is the certified copy of the order under Sections 76 and not the copy served on the assessee as required under Sections 33(1) of the Income-tax Act even though both are copies of the same order. 78 The accused is entitled to a certified copy of an F.I.R. on payment of legal fees at any stage. The fee for the certified copy of a judgement is payable only at the stage of applying for such copies. 79

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The person claiming interest in the specified land cannot be refused certified copies of the land records, ' pahanies ' and ' faisal patties ' on the ground that the land in question is classified in the revenue records as government land. 80 In a petition challenging the procedure for consideration of advocates for being designated as Senior Advocates, the petitioner produced the copy of the recommendations made by the Screening Committee which was not a public document within the meaning of this section but refused to disclose the source of obtaining the said copy on which the Court did not insist, it was held that the said document was not confidential and passed through several hands in the process of preparing its copies, making it easy to obtain its copy and the petitioner was not disentitled for any relief. 81 The certified copies of mutation order and statement of the vendor admitting the execution of sale deed before the revenue authority during mutation proceedings being the official record before the Court of Settlement Officer were held to be admissible in evidence as they were certified copies of the public documents. 82 A certified copy of a registered document was held to be admissible in evidence but its execution and contents thereof were liable to proved in the ordinary way. 83 The true copy of Khasra Panchshala signed by the patwari was held to be not a certified copy of a public document within the meaning of Section 76 of the Evidence Act, hence such a document was held to be inadmissible in evidence, as a certified copy of a public document. It required to be proved by examining the patwari like other documents. 84 In the instant election petition, the petitioner had alleged the use of corrupt practices by the returned candidate as he had made communal appeals in his speeches. The petitioner had obtained a copy of the cassette of the video recording of the said speeches which he failed to prove. Mere production of a receipt allegedly issued by the office of Election Commission, which itself was not brought on record through evidence, would not be sufficient to show that the receipt was issued against the payment made by the petitioner for obtaining a certified copy of the VHS Cassette. There was no mention of all that even in the election petition. 85 73 C. Thimmappa v. Mariyappa, AIR 2008 Kant 107, 110 (para 22). 74 Thatha v. Paru, AIR 1986 Ker 196. 75 Gopi Kishan v. Shanker Lal Dakot, AIR 2005 Raj 114, 118 (para 15). 76 Mohan Reddy v. N. Muralidhar Rao, AIR 1958 AP 485. 77 Malayalam Plantations Ltd. v. Commr. of I.T. Mysore, AIR 1959 Ker 34. 78 Rasipuram Union Motor Service Ltd. v. Commissioner of I.T. Madras, AIR 1957 Mad 151. 79 Prasanna Gogai v. State of Assam, AIR 1971 Assam 55(FB) ; Panchanan Mondal v. State, 1971 CrLJ 875(Cal) ; Shyam Lal v. State of U.P., 1998 CrLJ 2879(All) . 80 K. Pedda Jangaiah v. Mandal Revenue Officer, Moinabad, 1996 AIHC 1006 (para 6). 81 Democratic Bar Association v. High Court of Judicature at Allahabad (FB), AIR 2000 All 300 (para 13) : 2000 AIHC 4303. 82 Sapam O.L. Devi v. Takhellambam O.R.M. Devi, AIR 2005 Gau 101, 107 (para 20). See also Roshan Lal Khandelwal v. Dr. Jagdish Chand, AIR 2008 (NOC) 2043(All) : 2008(4) ALJ 70. 83 K.K. Thankappan v. K.S. Jayan, AIR 2003 Ker 114, 132 (para 49). 84 Kaushalya Bai v. Radha, AIR 2005 NOC 207(MP) : 2005 AIHC 299, 301 (para 13 & 14) (MP). 85 Tukaram S. Dighole v. Manikarao Shivaji Kokate, AIR 2008 (NOC) 1787(Bom) .

6. BIRTH CERTIFICATE

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The birth certificate issued by the statutory authority in proper format from the register maintained by the authority is admissible. 86 86 Parvathi v. K. Sivalingam, AIR 2009 (NOC) 222(Mad) .

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CHAPTER V OF DOCUMENTARY EVIDENCE PUBLIC DOCUMENTS S. 77. Proof of documents by production of certified copies. Such certified copies may be produced in proof of the contents of the public documents or parts of the public documents of which they purport to be copies. 1. PRINCIPLE AND SCOPE

The Privy Council in Collector of Gorakhpur v. Ramsunder 87 held that according to Section 76 the custodian of a public document, which any person has a right to inspect, shall give a certified copy on demand. Such certified copies are by the statutes deemed to be originals; and such certified copies (under Section 77) may be produced in proof of the contents of the public documents or parts, thereof. It is on the grounds of convenience that public documents which come within the purview of Section 74 of the Evidence Act, are allowed to be proved under this section by producing the certified copies which fulfil the conditions prescribed by Section 76. If any document is a public document, the contents of the document or part of the document can be proved by production of a certified copy of the same. 88 The principle underlying this section is to obviate the production of original public documents for evidentiary purpose. 89 87 AIR 1934 PC 157. See also M. Chandraiah v. C. Narayana, AIR 2008 (NOC) 2044(AP) . 88 Sudhir Bhuiya v. National Insurance Co. Ltd., 2005 (4) AIHC 3135, 3137 (para 11) (Cal). 89 Parkash Rai v. J.N. Dhar, AIR 1977 Del 73.

2. PROOF OF PUBLIC DOCUMENTS The Supreme Court in Ramappa v. Bojjappa 90 reversing 91 held that certified copies of public documents are admissible in evidence without being proved by calling witnesses. The Supreme Court has held that the check memo which is required to be maintained by the officer in charge of the counting table (during elections) is a document forming record of the act s of a public officer and therefore, a certified copy thereof given by the collector in whose custody the document is kept, can be admitted in evidence in proof of the contents of the original documents. 92 It was held that it can not be said that an admission contained in a maintenance application filed before, the Salar Jung Estates Committee, is not admissible, when a certified copy of the maintenance application was filed to prove the admission. The certified copy was granted by the Board of Revenue to which the original records of Salar Jung Trust Committee, an authority appointed under a statute

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enacted by the Hyderabad State Legislature, were transferred after the abolition of the Trust Committee and the records of the committee are public documents. 93 A printed copy of an order signed by the President of the Indian Union, not purported to have been published by an order of the Government, is no proof of the order. Such an order, if not proved under Section 78, can be proved by production of the original or its certified copy under Section 77. 94 There is a distinction between the record of the Court and the record of the act of the Court. It is only the record of the act of the Court, which is a public document. Therefore a compromise petition filed by the parties before a Court is not a public document. So also the pleadings of the parties before the Court are not public documents. But orders or decrees passed by the Courts are public documents as they are the record of the acts of the Court. 95 In the instant election petition the petitioner had taken the plea alleging corrupt practice that the returned candidate had made communal appeals in his speeches. He had produced VHS cassette of speeches made by the returned candidate but he had not proved the receipt issued by the Election Commission Office and had thus failed to prove that the said cassette was a public document. Hence, it was held that the contents of said cassette could not be relied on. Though a public document need not be proved, in the instant case the said cassette had not been admitted in evidence. The affidavit filed in lieu of the examination-in-chief made no mention of the said cassette. Thus, merely its production would not lead to inference that it had been produced in evidence and it being a public document, the same need not be proved. In the instant case, the said cassette had not even been tendered in evidence. It had merely been produced along with the petition which would not be sufficient to prove the contents of the said cassette, even assuming the same was a public document. 96

A Register of Births and Deaths maintained by the Municipal Authorities, or by any public officer under the authority of a statute, is a public document and a certified copy of the extract issued by such authority is admissible to prove its contents. 1 The Birth Certificate is the certified copy of the extract of a public document which can be produced in proof the contents of the public document of which it purports to be a copy. 2 A notification issued under Section 18 of Travancore Forest Act is a public document and the certified copy issued by the Chief Conservator of Forests, competent authority to certify, may be produced in proof of it. 3 Khasra girdawars are public documents and can be proved by producing certified copies.

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Valuation forms and line plans prepared by the custodian Department, being public documents, can be proved by production of certified copies. 5 Where a certified copy of a registered document more than 30 years old, was issued by the registrar, it was held that mere production of a certified copy would not be enough to raise presumption of contents of the document under Section 90 as there is no presumption of execution of the document and the admission contained therein has to be proved. 6 A document not required to be proved by calling evidence is to be marked at first hearing or the settlement of issues, Documents required to be proved by calling witnesses are to be admitted and marked when proved. This principle is also applicable to the documents led with permission of Courts after settlement of issues. 7 Where a certified copy of a public document was proved without calling a witness and no objection was taken in the Trial Court it was held it was admissible. 8 The certified copies of FIR, Site Inspection Map, Site Inspection Memo, Panchanama, Injury Report or Post-Mortem Report and other relevant documents prepared by the police or doctor while discharging official duty are admissible in evidence without any formal proof 9 ; and so is the certified copy of the registered agreement for sale 10 and pahanies . 11 A certified copy of a private sale-deed is admissible in evidence but admissibility of a document is one thing and its probative value quite another. A document may be admissible but may not carry weight. A proof of document is something which is independent from the evidentiary value of the document.

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Hence, where the vendor denied the execution of the sale-deed, its execution must be proved as required under Section 67. 12 The certified copy of a sale deed, produced by way of additional evidence, is admissible in evidence without further proof by calling for original and formality of proving its execution. More so when no counter-affidavit is filed in opposition nor execution of the sale deed has been denied. 13 Under Sections 51-A of the Land Acquisition Act , 1894, the certified copy of a sale deed is admissible in evidence even without accounting for its original and without examining the vendor or the vendee.14 Where disciplinary proceeding was initiated against the respondent for obtaining employment by showing higher percentage of marks in SCC examination but original documents like his application and the certificate were not available so the charge was proved on the basis of the extracts produced from "Z" Register and the oral evidence of another employee who was conversant with the practice of making entries in the Register which was held to be a public document. 15

A certified copy of the voters list being a public document, produced in proof of contents of it, was held to be admissible in evidence as a substantive piece of evidence. 16 A duly certified copy of Rapat Rojnamcha being a public document as maintained by Patwari , an official of Revenue Department, was held to be admissible in evidence in view of Section 77 of the Evidence Act . 17 A copy of the document which was not signed/issued by a competent authority but stated to be a 'true copy' by a person whose status has not been mentioned therein, having no legal entity was held to be inadmissible in evidence under Section 77. 18 Merely because a document referred to in cross-examination is marked as an exhibit, the same does not dispense with the proof of document in accordance with law of evidence. 19 90 AIR 1963 SC 1633. See also Oriental Insurance Company Ltd. v. Surendra Umrao, 2008 AIHC 477 (para 3) (All); Rajasthan State Transport Corporation v. Devilal, 1990(1) TAC 672; M.M. Rajappa v. Mal Maha Uru Bajappa, IR 1983 SC1633; Pt. Parmanand Katara v. U.O.I., 1989 (3) SVLR 137. 91 Bajjappa v. Venkanna, AIR 1960 AP 397. 92 Banamali Das v. Rajendra Chandra, AIR 1975 SC 1863. 93 Chand Sultana v. Khurshid Begum, AIR 1963 AP 365. 94 Brahmeshwar Prasad v. State of Bihar, AIR 1950 Pat 265. 95 Mangat Ram v. State, 1966 CrLJ 967 (2) (Guj) (a case of compromise petition); Kantilal Ambalal v. State, 1968 CrLJ 758 : AIR 1968 Guj 100; (a warrant issued by Police); Gulabchand v. Sheo Karamlall, AIR 1964 Pat 45; Kewal Krishan v. Kailash Chand, (1977) 1 Del 97. (Pleadings and grounds of appeal); Md. Ayub Khan v. Abdul Samad Khan, 1969 BLJR 932; (decree of a Court). 96 Tukaram S. Dighole v. Manikrao Shivaji Kokate, AIR 2008 (NOC) 1787(Bom) . 1 Yenajakshamma v. P. Gopala Krishana, Birth Register extract AIR 1970 Mys 305. 2 Yasudha Gorakhnath Mandvilkar v. City and Industrial Development Corporation of Maharashtra Ltd., AIR 2008 (NOC) 2572(Bom) : 2008(4) AIR Bom R 695 (DB). 3 State of Kerala v. Adichan Sasi, 1976 Ker LJ 839. 4 Surajmal v. State, 1959 Raj LW 381. 5 Mannumal v. Prit Bai, 1970 Raj LW 302. 6 Rajeswari v. Yaralaxshmamma, AIR 1964 AP 284 followed Basanth Sing v. Brijrajsaran, AIR 1935 PC 132; Harihar Prasad v. Deonarin Prasad, AIR 1956 SC 305; Padmanabha Chari v. Sithapathi Rao, (1954) 2 MLJ 75; Gopal Das v. Thakurji, AIR 1943 PC 83. 7 Thatithoi Chiru v. Ningampao Kabui, AIR 190 Gau 7. 8 M. Ramappa v. Bojjappa, AIR 1963 SC 1633. See also commentary under Section 74.

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9 Rajasthan State Road Transport Corporation v. Nand Kishore, AIR 2001 Raj 334 (para 8). See also J. Shiva Shankar v. Deputy Superintendent of Police, 2002 CrLJ 3167, 3168 (para 4) (AP) : 2002 (1) Andh LT (Cri) AP 572 : 2002 (3) Cur CrR 431. 10 State of Haryana v. Ram Singh, AIR 2001 SC 2532 (paras 5 and 6). 11 J. Shiva Shankar v. Deputy Superintendent of Police, 2002 CrLJ 3167, 3168 (para 4) (AP) : 2002 (1) Andh LT (Cri) AP 572 : 2002 (3) Cur CrR 431. 12 Manindra Kumar Dey v. Mahendra Suklabaidya, 1999 AIHC 2147 (para 15) (Gau). See also K.M. Shaffi v. Dayamathi Bai, 1999 AIHC 4071 (para 22) (Kant); Md. Saimuddin Sheikh v. Abejuddin Sheikh, AIR 1979 Gau 14; Hussaini Mahto v. Hulash Mahto, AIR 2006 Jhar 87, 88 (para 5). 13 Hussaini Mahto v. Hulash Mahto, AIR 2006 (NOC) 1351(Jhar) : 2006 AIHC 2509, approving AIR 1979 Gau 14. 14 Cement Corporation of India Ltd. v. Purya, (2004) 8 SCC 270, 280, 281 (paras 24, 25 and 31). 15 Union of India v. A. Nagamalleshwar Rao, AIR 1998 SC 111. 16 Gopi Kishan v. Shanker Lal Dakot, AIR 2005 Raj 114, 118 (para 15). 17 Umar Din v. Jamna Dass, 2003 AIHC 2064, 2066 (para 21) (HP). 18 Sopam O.L. Devi v. Takhellambam O.R.M. Devi, AIR 2005 Gau 101, 107 (para 21). 19 Geeta Marine Services Pvt. Ltd. v. State, AIR 2009 (NOC) 951(Bom) .

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Ratanlal & Dhirajlal: Law of Evidence, Updated 23rd Edition/THE INDIAN EVIDENCE ACT (ACT 1 OF 1872)/PART II ON PROOF/CHAPTER V OF DOCUMENTARY EVIDENCE/PUBLIC DOCUMENTS/S. 78.

CHAPTER V OF DOCUMENTARY EVIDENCE PUBLIC DOCUMENTS S. 78. Proof of other official documents. The following public documents may be proved as follows:-5)   Acts, orders or notifications of the Central Government in any of its departments, or of the Crown Representative or of any State Government or any department of any State Government,-by the records of the departments, certified by the heads of those departments respectively, or by any document purporting to be printed by order of any such Government or, as the case may be, of the Crown Representative; 5)   the proceedings of the Legislatures,-by the journals of those bodies respectively, or by published Acts or abstracts, or by copies purporting to be printed by order of the Government concerned; 4)   proclamations, orders or regulations issued by Her Majesty or by the Privy Council, or by any department of Her Majesty's Government,-by copies or extracts contained in the London Gazette, or purporting to be printed by the Queen's Printer; 4)   the Acts of the Executive or the proceedings of the Legislature of a foreign country,-by journals published by their authority, or commonly received in that country as such, or by a copy certified under the seal of the country or sovereign, or by a recognition thereof in some Central Act; 4)   the proceedings of a municipal body in a State,-by a copy of such proceedings, certified by the legal keeper thereof, or by a printed book purporting to be published by the authority of such body; 2)   public documents of any other class in a foreign country,-by the original, or by a copy certified by the legal keeper thereof, with a certificate under the seal of a Notary Public, or of an Indian Consul or diplomatic agent, that the copy is duly certified by the officer having the legal custody of the original, and upon proof of the character of the document according to the law of the foreign country. STATE AMENDMENT West Bengal.-- New S. 78A, inserted by W.B. Act No. 20 of 1960, S. 3 (w.e.f. 5-1-1961). "78-A. Copies of public documents, to be as good as original documents in certain cases.-Notwithstanding anything contained in this Act or any other law for the time being in force, where any

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public documents concerning any areas within West Bengal have been kept in Pakistan, then copies of such public documents shall, on being authenticated in such manner as may be prescribed from time to time by the State Government by notification in the Official Gazette, be deemed to have taken the place of, and to be, the original documents from which such copies were made and all references to the original documents shall be construed as including references to such copies". 1. PRINCIPLE AND SCOPE

This section specifies the various ways in which the contents of a public document can be proved. This section deals with six classes of documents and the mode of proof concerning those documents. The documents referred in this section may be proved as mentioned in the section. The use of the word "may be proved" indicates that it is permissive and other modes of proof are not prohibited. 1 The word 'may' is used only as denoting a mode of proof other than the ordinary one, namely, the production of the original. For, when the original is a public document within the meaning of S. 74, a certified copy of the documents, but no other kind of secondary evidence, is admissible. Section 78 indicates only a mode of proof. Mere production of printed copy printed by the official printer is not conclusive as to its correctness. 2 This section does not appear to have the effect of absolving the parties from any rules governing the proof of the facts on which they desire to rely. 1 Seodlul v. Joharmull, AIR 1924 Cal 74; Kalijiban Bhattacharjee VR, AIR 1936 Cal 316; Shivnarain v. Nag & Co., AIR 1982 All 44. 2 Mottayan v. Thambuswami Padayachi, (1970) 1 Mad LJ 137.

2. ACT S, ORDERS OR NOTIFICATIONS OF GOVERNMENTS [CLAUSE (1)] According to Cl. (1) all Acts, Orders, Notifications of the Central Government and State Governments in any of its departments, may be proved by the production of (1) the records of the departments certified by the heads of those departments, or (2) by the printed copies purporting to be printed by the order of any such Government. If such Act s, Orders, Notifications amount to laws in force, under Section 57, judicial notice can be taken. 3 Art. 77 and Art. 166 of the Indian Constitution deal with orders and other instruments made and executed in the name of the President of the Indian Union and the Governor of a State respectively. Such orders and other instruments shall be authenticated in such manner as may be prescribed by the rules formed or made by the President or the Government and if they are so authenticated they shall not be called in question. A cyclostyled copy of typed notification attested by the Divisional Forest Officer is not an "authenticated copy" of the notification as a proof of a particular forest being reserved one. In making an act of authentication, the officer who makes it is to declare his authority to do so, his having been appointed properly by the authority for the purpose and has to say that the authenticated document is in due form of law. 4 Court cannot take notice of an Amending Act , in the absence of an authentic copy as required under Section 78. 5 A Gazette notification fixing the date for elections of a municipality was held to be sufficient proof of the date of elections. 6 A notification issued by a proper authority of the Government was held to be sufficiently proved under Section 78 if a copy of the Gazette notification is filed. 7 A notification published in a Government Gazette, cannot be said to be included in the definition of "Laws", and so the Court is not entitled to take judicial notice of it under Section 57. Proof can only be given under Section 78 by production of the Gazette printed under the authority of the Government. 8 But, in State of M.P. v. Romchondsan 9 overruling 1954 Nag 296, it was held that all statutory orders and

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notifications which are legislative in nature, amount to "Law" and the Court can take judicial notice. It was a case of notification under Section 7(1) of Telegraph Wires (Unlawful) Possession) Acts. Extracts from official gazette, certified to be true copies by the District Medical Officer, are not admissible in evidence and the true copies should be certified by the head of the department concerned. 10 A government notification can be proved by production of a copy certified by the head of the department which issued the same, as secondary evidence under Section 78 read with Section 65. 11 A notification under Section 18 of Travancore Forest Act declaring certain area as reserved forest may be proved by filing a certified copy thereof, issued by the Chief Conservator of Forests. 12 A copy not certified by the head of the department is not a "certified copy" within the meaning of Section 78. 13 A cyclostyled copy of government rules with a cyclostyled covering letter, sent to various departments is not admissible as even secondary evidence of those alleged rules. 14 Any book published referring to any notification of the government was held not admissible to prove the existence of such notification. 15 The Court cannot act on a report regarding increase in dog-bites based on the subjective and personal opinion of the author and not on any impartial enquiry, investigation and collection of relevant materials and hold that the new scheme to control dog-bites was a failure. 16 A printed copy of an order signed by the President of the India but not purporting to be published by the order of the Government, was held to be no proof of the order. If it is not proved u/ Section 78 or by a certified copy according to Section 77, or by filing an affidavit of any responsible officer, it must be held that there is no proof of it. 17 In a case there was a difference in the wording of Art. 177 of the Limitation Act , between what was contained in a book and what was in the gazette, the version in the book was preferred to that in the gazette.18 The Lahore High Court has, on the other hand, held that the text published in the Gazette must be taken to be the authorized text of the Limitation Act under cl. (2) of this section. 19 3 State v. Ramchandson, AIR 1977 MP 68(FB) . 4 Chandra Naik v. State, 1993 CrLJ 2128 (paras 5 and 6) (Ori). 5 Public Prosecutor v. A.K. Gopalan, AIR 1953 Mad 66. 6 Venkata Rao v. Padmanabha Raju, AIR 1927 Mad 981. 7 Pannalal v. State of M.B., AIR 1953 MB 84; Baijnath v. State of M.B., AIR 1953 MB 196; State of M.B. v. Gangaram, AIR 1953 MB 244; (Notification of Textile Commer. fixing the controlled price under Essential Supplied (Temporary Powers Act 1946 u/s. 7); Alipilla v. State of Kerala, 1983 CrLJ 185(NOC) (Ker) ; Municipal Committee, Akola v. Madhawa Wasudeo, AIR 1951 Nag 464. 8 Mathuradas v. State, AIR 1954 Nag 296; Ramji Raja v. Puncham, AIR 1959 MP 269; see also Collector of Cawnpore Kishore v. Jugal, AIR 1928 All 355; Pyle v. State of Kerala, 1966 Ker LJ 76 : 1966 Ker LT 102. 9 AIR 1977 MP 68(FB) . 10 Sarjng v. State of Bihar, 1973 BLJR 790. 11 Janu Khan v. State, AIR 1960 Pat 213; Public Prosecutor v. Kamakshi Ammal, 1983 Mad LJ 617(Cri) ; (Notification issued by Textile Commer). 12 State of Kerala v. Adichan Sasi, 1975 Ker LT 839; Sadhu Patra & Sixars v. State of Orissa, (1970) 36 Cut LT 395. 13 Santokhi Rana v. State, 1977 CrLJ 113(NOC) : 1977 BLJR 79. 14 Union of India v. Nirmal Singh, AIR 1987 All 83. 15 Md. Usman Gulam Mohiuddin v. Dhanshanker Jagannath Bhatt, (1969) 10 Guj LR 374. 16 J. Gopalan v. Municipal Corporation of Hyderabad, AIR 1996 AP 371 (para 34). 17 Brahmeshwar Prasad v. State of Bihar, AIR 1950 Pat 265.

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18 Sheodoyal v. Joharmull, AIR 1924 Cal 74 : ILR 50 Cal 549, 566. 19 Gobind Das v. Rup Kishore, (1923) 4 Lah 367.

3. PROCEEDINGS OF LEGISLATURES [CLAUSE (2)] This clause deals with the proceedings of Legislatures. They can be proved by the journals published by the Parliament, State Legislature or State Council or by published Act s or abstracts, or by printed copies purporting to be printed by the order of the Government. The proceedings of Parliament may be proved under cl. (2) by the Journals of the House of Commons or by copies purporting to be printed by order of the Government. Regarding Journals, the Federal Court held that "The proceedings of Parliament fall under either the second or fourth of the categories set out in this section; it may be said that the reference in the second category to proceedings of "the Legislatures" following immediately upon the first category which is confined to acts, orders or notifications of the Central Government in India, is to be taken as a reference to the legislatures of India only: "the Legislatures" to which the second category refers are intended to include all the legislatures which have the power to make laws for India or for any part thereof. The official parliamentary debates are not the journals of two houses of parliament in the narrower sense of that expression; each house publishes its own journals which contain a formal record of the business done and may be described as the minutes of their proceedings; and these journals may, in an English Court, be proved by copies thereof purporting to be printed by the printers to the Crown or by printers to either house of Parliament... the expression 'journals', however, in Section 78 is plainly to be given a broad and general meaning, since it is not confined to the journals of the Houses of Parliament, but includes journals of other legislatures also; and there is no reason, therefore why, in its application to Parliament, it should necessarily be confined to the journals of the two Houses of Parliament above, if it can be shown that the Houses have authorised the publication of other official records of their proceedings and that these records are printed "by order of Government". 20

The official report of the proceedings of the House of Lords was held to be proof of the fact that the proclamation of emergency declared by the Governor-General-in-Council under Sections 102(1) of Government of India Act was approved by the House of Lords. 21 Under Section 57 the court shall take judicial notice of the proceedings in Parliament and of the Legislatures in the State. Proceedings are normally published under the authority of the concerned Government in a book form, which can be referred to. In respect of the Act s which have been passed, they would be published in a book form besides their publication in the Government gazette. Both can be referred to by the court. 22 Reports of proceedings of the State Legislative Assembly during the passage of impugned statutes are admissible as public documents under Section 78(2). 23 Reports of the debates in the Legislative Assembly can only be evidence of what was stated by the speakers in the Legislative Assembly, and are not evidence of any facts contained in the speeches.

24

P HIPSON 25 states "Neither Hansard's Debates, nor the Authorised Parliamentary Debates printed by the Government, are, however, admissible to prove the questions, answers, and speeches of members, these publications not having the authority of Parliamentary Journals". 26 It was held by the Supreme Court that facts stated in the newspaper are in the nature of hearsay and no notice can be taken of such facts as the newspaper is not one of the documents referred to in Section 78(2) to prove the allegation of facts, unless the maker, publisher, or reporter who sent the report was examined in respect of that news item. 27 20 Niharendu v. R., AIR 1942 FC 22 : 1942 FCJ 47. 21 Bimal Protiva v. R, AIR 1942 Cal 464.

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22 Subramania v. Shanmugan, AIR 1926 Mad 65; Brindaban v. Mahabir, AIR 1927 Pat 142. 23 Gajapati Narayan Deo v. State of Orissa, AIR 1953 Ori 185. 24 Rt. Hon. Gerald Lord Strick Land, AIR 1935 PC 34; Carmelo Mifsud Bonnici. See May's Parliamentary Practice 11th Ed. P.202. 25 15th Ed. (2000), p. 881, (para 36.04). 26 See also observations od D ARLING , J., in Mc Carthy v. Kenneddy, Times Mar 4, 1905. 27 Laxmi Raj Shetty v. Tamil Nadu State, 1988 SC 1274. See also Hazarilal v. State of H.P., AIR 1953 HP 41.

4. PROCEEDINGS OF A MUNICIPAL BODY [CLAUSE (5)] The proceedings of a Municipal Board can be proved under clause (5) by a copy of such proceedings, certified by the legal keeper, or by a printed book purported to have been published under the authority of such municipal body. 28 Mere production of the printed proceedings would not be sufficient unless it purports to be published under the authority of such municipal body. 29 Where there was a resolution of the Municipal Council authorising the Municipal Commissioner who in turn gave authority in favour of Sanitary Inspectors who would be prosecution witnesses, it was held that the order of the Commissioner was not admissible as evidence of the Municipal Resolution under Section 78(5). 30 Where there was a resolution of the Municipality authorising the Assistant Municipal prosecutor to institute and conduct prosecutions under the prevention of Food Adulteration Act, it was held that when the Commissioner of the Municipality authorised the head clerk of the central office to attest the copies, it was valid attestation, though it was not attested by the legal keeper of the records. 31 28 Akshay Kumar Chand v. Commer., of Bogra Municipality, AIR 1923 Cal 675; Sd. Syed Mokram Ali v. the Cuttack Municipality, 17 Cal WN 531. 29 Corp., of Calcutta v. Promotho Nath Mullick, AIR 1915 Cal 428. 30 Gopinathannar v. Thomas, ILR 1960 Ker 1449. 31 Tillo Ram Karam Chand v. State, AIR 1967 Del 71; See also Akshay Kumar Chand v. Commer of Bogra Municipality, AIR 1923 Cal 675 : 37 CLJ 589.

5. PUBLIC DOCUMENTS OF ANY OTHER CLASS IN A FOREIGN COUNTRY [CLAUSE (6)] As to Foreign Law Sections 38, 45 and 84 of this Act may be referred to, regarding foreign judgments Section 12,C.P.C., and the effect of themSection 13,C.P.C., and as to the certified copies of foreign judgmentsSection 14,C.P.C., may be referred to. Section 86 of this Act deals with presumption regarding certified copies of foreign records. S UBBARAO J., (Majority expressing no opinion) observed: " Section 78(6) of the Evidence Act makes it clear that, apart from the two certificates--one by the legal keeper of the original document and the other by the Consul General--there shall also be proof of the character of the foreign judgment according to the law of the foreign country before it can be admitted. It is a condition precedent. Proof of this condition can be by direct or circumstantial evidence. Proof can also be given by placing before the court facts giving rise to presumption rebuttable or irrebuttable. Section 86 of the Evidence Act lays down that a court may presume the genuineness and accuracy of any document purporting to be a certified copy of any judicial record of any foreign country, if such a copy is duly certified in a manner and according to the rules in use in the country for certification of copies of judicial records. To give rise to this presumption it is not necessary that the judicial record of the foreign country should have

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already been admitted in evidence. While Section 78(6) lays down three conditions for admitting a foreign judgment in evidence, the admission of the judgment is not a condition precedent for drawing the requisite presumption under Section 86. The presumption may be drawn before the said judgment is admitted and by virtue of presumption of genuineness of the copy of the judgment, arising under Section 86 the third condition under Section 78(6)viz., the character of the document according to the law of the foreign country may be said to have been proved and the judgment may be admitted". 32 The copy of a birth entry in a record of the Town Committee of a town situated in Pakistan was held not admissible in evidence, in the absence of attestation by the High Commissioner for India in Pakistan, to prove the date of birth before a court in India. 33 It was held that, even if strict rules of evidence may be deemed to apply to the proceedings before the Rehabilitation Authorities, under the displaced persons. (Compensation and Rehabilitation) Act of 1954, the Authorities have no jurisdiction to ask for any other mode of proof for proving a public document of a foreign country than the one prescribed by Section 78(6). Records of a court in Berlin authenticated as required by law were held admissible.

34

The words 'diplomatic Agent' in Cl. (6), are very wide and prima facie cover the Resident of Hyderabad who was a political agent of the Government of India. A certified copy of a transfer certificate granted by the Head Master of a School certified by the Resident was held to be admissible. 35 Where the political agent had not certified the copy of the evidence in a civil court (Kutch court) in the manner required under Section 76, it was held not to be admissible and Section 86 of the Evidence Act did not exclude its proof. 36 It is to be observed that the section does not say how any fact, historical or otherwise, is to be proved by the parties, but gives the court liberty to resort for its aid to appropriate books or documents of reference on matters of public history. 37 A carbon copy of a Court order issued by official process, but not marked as "true copy" has been regarded as good evidence. 38 The landlord refused to receive the money sent by the tenant by money order. The post office issued a letter showing refusal. The letter was based on a public record and, therefore, held relevant. 39 Once a document is held to be a "public document" within the meaning of Section 74, if it is properly proved under Section 78, the presumption in respect of the contents of public documents would apply irrespective of whether the public document is of British India or of a Foreign State. 40 Where a public document belonging to a foreign country was authenticated by the stamp of the legal keeper of the record and the same was duly signed and which was also certified by the Indian Consulate in that country, it was held that such document fulfilled the requirement of Section 78(6) of this Act . 41 32 Badat and Co., Bombay v. East India Trading Co., Newyork, AIR 1964 SC 358. 33 Union of India v. Bakshshi Amrik Singh, AIR 1963 Punj 104. 34 In the matters Rudolf Stallmann , (1911) 39 Cal 164. 35 Maharaj Bhanudas v. Krishhabai Chintaman Deshpandey, AIR 1927 Bom 11. 36 Vallabh Das Mulji v. Pran Shanker, AIR 1929 Bom 24, 30; following Haranuand v. Ramgopal, ILR 27 Cal 639; see also Shamsher Narain Singh v. Md. Sale, AIR 1926 Pat 29(2); (attendance register in the office of Nizam of Hyderabad). 37 "The Englishman" Ltd. v. Lajpat Rai, (1910) 37 Cal 760. 38 Tha v. Peru, AIR 1986 Ker 196. 39 Shiv Narain v. M/s Nang & Co., AIR 1982 All 44. 40 Lal Haribansha v. Nikunja Behari, ILR 1960 Cut 230.

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41 Mehnga Singh v. Gurdial Singh, AIR 2004 P&H 93, 103 (para 22) : 2004 (1) Civil Court C 525 : 2004 (3) Land LR 344 : 2004 (1) Rec Civ R 338.

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Ratanlal & Dhirajlal: Law of Evidence, Updated 23rd Edition/THE INDIAN EVIDENCE ACT (ACT 1 OF 1872)/PART II ON PROOF/CHAPTER V OF DOCUMENTARY EVIDENCE/PRESUMPTIONS AS TO DOCUMENTS/S. 79.

CHAPTER V OF DOCUMENTARY EVIDENCE PRESUMPTIONS AS TO DOCUMENTS S. 79. Presumption as to genuineness of certified copies. The Court shall presume to be genuine every document purporting to be a certificate, certified copy or other document, which is by law declared to be admissible as evidence of any particular fact and which purports to be duly certified by any officer of the Central Government or of a State Government, or by any officer in the State of Jammu and Kashmir who is duly authorised thereto by the Central Government: Provided that such document is substantially in the form and purports to be executed in the manner directed by law in that behalf. The Court shall also presume that any officer by whom any such document purports to be signed or certified, held, when he signed it, the official character which he claims in such paper. 1. PRINCIPLE AND SCOPE

Sections 79 to 90 deal with certain presumptions as to documents. This section proceeds upon the maxim omina proesumuntur rite esse acta a (all act s are presumed to be rightly done). In fact all the following sections down to S. 90 inclusive, are illustrations of, and founded upon, this principle. But though the courts are directed to draw a presumption in favour of official certificates, it is not a conclusive presumption; it is rebuttable. It is but a prima facie presumption, and if the certificate, etc., be not correct, its incorrectness may be shown. On the same maxim stands the last clause of this section. It is very old law that where a person acts in an official capacity it shall be presumed that he was duly appointed. 42 The Evidence Act does not extend the facility of mere filing of the documents and drawing an inference as to proof thereof except where they fall into the category of the documents referred to in Sections 79 to 90 of the Evidence Act. 43 This section applies to certificates, certified copies or other documents which are duly certified, by an officer of the Central Government or of a State Government or by an officer in the State of Jammu and Kashmir who is authorised by the Central Government in that behalf, to be genuine. This section imperatively directs the court to raise a presumption by using the words 'shall presume'. Under this section a court is bound to draw the presumption that a certified copy of a document is genuine and also that the officer signed it in the official character which he claimed in the said document. 44 The words 'shall presume' indicate that if no other evidence is given, the court is bound to find that the facts mentioned in the section exist. They occur in Ss. 79-85 and S. 89. These sections are, therefore, mandatory. On the other hand Sections 80 to 88 and 90 deal with matters which the court may presume. Apart from these Sections there is another Section 114 whereunder the court may presume

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certain facts and things. The sections which use the expression "may presume" are all permissive and there is wide discretion for the court to presume or not to presume, though such discretion must be judicially exercised. S TEPHEN in his introduction (p. 144) states "Where a document, purporting to be a certified copy of a record of evidence, is produced, it must, by Section 79, be presumed to be an accurate copy of the record of evidence; and, by Section 80, the facts stated in the record itself, as to the circumstances under which it was taken, e.g. that it was read over to the witness in a language which he understood, must be presumed to be true.. Many classes of documents that are defined in the Act are presumed to be what they purport to be, but this presumption is liable to be rebutted." At page 170, he observes "Many classes of documents which are defined in the Act, are presumed to be what they purport to be, but this presumption is liable to be rebutted. Two sets of presumptions will sometimes apply to the same document. For instance, if what purports to be certified copy of a record of evidence is produced, it must by Section 79 be presumed to be an accurate copy of the record itself as to the circumstances under which it was taken, e.g. that it was read over to the witness in a language which he understood must be presumed to be true". The expression "shall presume to be genuine" implies raising of a presumption of genuineness from the certified copy as to the correctness of the record, and also as to the genuineness of such copy. 45 Unless contrary is proved, the Government records produced in evidence shall be presumed under Section 79 of the Evidence to be correct and genuine. 46 Where a document bearing a seal and signature of the officer mentioned that the officer named in it had authority to certify the copy, it was held that the document must be presumed to be duly certified. 47 A presumption of genuineness is attached to the entries in Birth and Death Registers maintained under a statute, as the registers are public documents, and a heavy onus lies on the party who wants to displace the presumption. Correctness of certified copy shall be presumed under Section 79. 48 Certificate of Registration under Sections 60 of the Registration Act must be presumed to be genuine.49 A certified copy of a document can be admitted without any formal proof in view of Section 63 and 79. 50

In a divorce case, when a certified copy of the FIR, was tendered in evidence, it was held that it was admissible. 51 A certificate signed by the visitors of a Lunatic Asylum or a Mental Hospital and the Superintendent of the hospital comes within Section 79 and no formal proof of the document is required. 52 Certified copy of a revenue record raises a presumption of its genuineness.

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Entry in a register which is not required by law to be maintained, should be proved in the same manner as any other fact is to be proved, as no legal presumption is available to such an entry or the register. 54 Where a plaintiff sent a letter to the Nazir department and it was filed in the records of the department it was held that the letter becomes a public document and if a photostat and not a certified copy was filed it was not admissible to prove the document. 55 A certified copy of a registered deed of power of attorney, not being a public document, could not be presumed to be genuine within the meaning of this Section. 56 A true copy of Khasra panchshala issued by the Patwari under his signature was not a certified copy of a public document within the meaning of Section 76 of the Evidence Act, hence the presumption of its genuineness could not be drawn under Section 79 of this Act. 57 Where a carbon copy of an order of court contained necessary particulars indicating its authenticity as issued by a Court though not bearing a certificate of its being a true copy, it was held that the carbon copy can be treated as a certified copy and an appeal filed along with it was valid. 58 The statements of the vendor and the vendee recorded before revenue authority in a mutation proceeding were held to be public documents as being official records and the certified copies of the same issued by the competent authority were held to be admissible in evidence and genuineness of

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the same could be presumed on the strength of Section 79 of the Act . 59 Where the original sale deed was said to have been eaten away by white ants and a certified copy was marked as exhibit and the other side raised no objection, and a witness deposed as to the fact of sale, it was held that its genuiness cannot be agitated in appeal by raising objection as to the mode of proof. 60 The entries in extract from assessment register of municipality were held to be genuine and correct as no objection regarding genuineness of the document was raised by the opposite party. 61 A certified copy of the Will issued by the sub-Registrar, under the law, would be admissible in evidence for the purpose of proving the contents of the original document within the meaning of Section 79 of the Evidence Act. 62 It was held by the Bombay High Court that Section 79 only raises a rebuttable presumption with regard to the genuineness of certified copies, if they are executed substantially in the form and in the manner provided by law; it was further held that in all cases of secondary evidence under Section 65 read with Section 63 when a copy or an oral account is admitted as secondary evidence, the execution of the original is not required to be proved, but if the original itself is sought to be tendered, it must be duly proved and there is no reason for applying a different rule to public documents. Neither Section 67 nor Section 68, which lay down that the signature and the handwriting on a document must be duly proved, make any exception in the case of public documents. 63 The Court shall presume to be genuine every document purporting to be a certificate which is by law declared to be admissible as evidence of any particular fact and which purports to be duly certified by any officer of the Central Govt. who is duly authorised by the Central Govt.. Not only this, Section 79 also provides that the court shall presume that any officer by whom any such document purports to be signed or certified held, when he signed it, the official character which he claims in such paper. 64 However, it can be shown that the officer who certified it, does not hold the official character which he claims. 65 The Birth Certificate which is the certified copy of the extract of a public document and is issued by the relevant Municipal Authority, is admissible in evidence and carries a presumption as to its genuineness. The court is also required to presume that the officer by whom such a document is purported to be signed as certified held the official character which is claimed in the document. This presumption under the law would hold good until it is rebutted. 66 Different handwritings in the date of birth and the name of the child born can be explained and that by itself cannot make the record i.e. the Register of Births and Deaths maintained by the Municipal Authorities suspicious or fabricated. 67 Whenever there is a dichotomy or difference between the dates of birth of an individual, the date of birth reflected in the public records, which is the municipal records, would be the strongest possible evidence of such date. School records which are not verified and which are maintained upon what is stated by the student and/or the guardian cannot override what is stated in the public records. 68 Where a letter purporting to be issued from the Chief Secretary to the Government of Bengal was signed by a Deputy Secretary, not in his official capacity, but "for the Chief Secretary," it was held that there was no legal proof that the Local Government had ordered or authorized a prosecution under Section 196 of the Criminal Procedure Code . The presumption under this section would have arisen if the letter had been signed by the Chief Secretary himself. 69 42 N ORTON 260-261. 43 Kota Sreevalli v. Chinni Seetharamaiah, AIR 2005 AP 521, 523 (para 10). 44 Bhinka v. Charan Singh, AIR 1959 SC 960. 45 Budhu Ahir v. Ishwar Chand Pandey, 1972 CrLJ 1377(All) . 46 Bahadar Ram v. Sant Ram, 2002 AIHC 2307, 2308 (para 13) (Raj). 47 Gurdit Singh v. Surjan Singh, AIR 1950 Pepsu 56. 48 Gopichand Arya v. Smt. Bedmo Kuer, AIR 1966 Pat 231; Banshi Ram v. Jit Ram, AIR 1964 Punj 231; Mst Komal v. Gur Charan Prasad, AIR 1938 All 242; Anwari Jan v. Baldua, AIR 1936 All 218; George v. State, (1974) 1 CrLJ 550(Ker) .

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49 Govind Ram v. Abdul Wahab, AIR 1963 Raj 234; Md. Hassan v. Sohara, AIR 1924 Lah 389. 50 State of Kerala v. Adichan Sasi, 1975 Ker LT 839; Ganapti Chintamani v. Damodar Bhiku Bhutt, 1960 MPLJ 424; Narsingh Prasad Sah v. Mahendra Sah, 2000 AIHC 723 (para 9) (Pat). See also Cement Corporation of India Ltd. v. Purya, (2004) 8 SCC 270, 283 (para 39). 51 Krishan Rani v. Chmi Lal, AIR 1981 Punj 119. 52 Kalidas Sarkar v. Emperor, ILR 63 Cal 425. 53 Budhu Ahir v. I.C. Pandey, 1972 CrLJ 1377(All) . 54 Ram Prakash Kamlesh Kumar v. Commissioner of Sales Tax, 1976 Tax LR 1955. 55 Manorama Srivastava v. Saroj Srivastava, AIR 1989 All 17. 56 Bidhan Paul v. Paresh Chandra Ghosh, AIR 2002 Gau 46, 48, relied on Narattam Das v. Md. Masaddarali Barbhumyan, (1991) 1 Gauhati LR 197 which was followed in Manindra Kumar Dey v. Mahendra Shukla Baidya, (1999) AIHC 2147 : (1999) 2 Gauhati LR 219. 57 Kaushalya Bai v. Radha, AIR 2005 NOC 207(B) (MP) : 2005 AIHC 299, 302 (para 14) (MP). 58 Thatha v. Paru, AIR 1986 Ker 196. 59 Sapam O.L. Devi v. Takhellambam, AIR 2005 Gau 101, 107 (para 20). 60 Bhadar Munda v. Dhuchua Oraon, AIR 1970 Pat 209. 61 Raj Kali v. Special Land Acquisition Officer, Allahabad, 2002 AIHC 4690, 4691 (para 3) (All). The Court relied on Bhinka v. Charan Singh, AIR 1959 SC 960 : 1959 CrLJ 1223. 62 Hameed v. Kanhaiya, AIR 2004 All 405, 415 (para 40) : 2004 All LJ 51 : 2005 (1) civil Court C 146 : 2004 Rev Dec 559. 63 C.H. Shah v. Malpathak, (1972) 74 Bom LR 505 : ILR 1973 Bom 14; Dissenting from Sagar Mal v. State, 1951 All 816; S.R. of Legal Remembrancer v. Moazzem Mossain, AIR 1947 Cal 318; relied on see also Bishanath Prasad v. R, AIR 1948 Oudh 1. 64 Brigadier Harjit Singh v. Rangmahal Theatre, AIR 2008 (NOC) 1334(Bom) . 65 Govind Ram v. Abdul Wahab, AIR 1963 Raj 234. 66 Vasudha Gorakhnath Mandvilkar v. City and Industrial Development Corporation of Maharashtra Ltd., AIR 2008 (NOC) 2572(Bom) : 2008 (4) AIR Bom R 695 (DB). 67 Vasudha Gorakhnath Mandvilkar v. City and Industrial Development Corporation of Maharashtra Ltd., AIR 2008 (NOC) 2572(Bom) : 2008 (4) AIR Bom R 695 (DB). 68 Vasudha Gorakhnath Mandvilkar v. City and Industrial Development Corporation of Maharashtra Ltd., AIR 2008 (NOC) 2572(Bom) : 2008 (4) AIR Bom R 695 (DB). 69 Md. Oziullah v. Beni Madhab Chawdhuri, ILR 1922 Cal 298 : 1922 50 Cal 135. But see Kalijiban Bhattacharjee v. Emperor, ILR 63 Cal 1053 : AIR 1936 Cal 316.

2. INCOMPLETE DOCUMENT Where the certified copy of a judgment bore no date and signature of the Judge and its final portion was missing, the said document, being incomplete, its certified copy was inadmissible in evidence. 70 70 Mohmedbhai Rasulbhai Malek v. Amirbhai Rahimbhai Malek, AIR 2001 Guj 37 (para 10).

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Ratanlal & Dhirajlal: Law of Evidence, Updated 23rd Edition/THE INDIAN EVIDENCE ACT (ACT 1 OF 1872)/PART II ON PROOF/CHAPTER V OF DOCUMENTARY EVIDENCE/PRESUMPTIONS AS TO DOCUMENTS/S. 80.

CHAPTER V OF DOCUMENTARY EVIDENCE PRESUMPTIONS AS TO DOCUMENTS S. 80. Presumption as to documents produced as record of evidence. Whenever any document is produced before any Court, purporting to be a record or memorandum of the evidence, or of any part of the evidence, given by a witness in a judicial proceeding or before any officer authorized by law to take such evidence, or to be a statement or confession by any prisoner or accused person, taken in accordance with law, and purporting to be signed by any Judge or Magistrate, or by any such officer as aforesaid, the Court shall presume-that the document is genuine; that any statement as to the circumstances under which it was taken, purporting to be made by the person signing it, are true, and that such evidence, statement or confession was duly taken. 1. PRINCIPLE

This section dispenses with the necessity of formal proof of certain documents. This section makes it obligatory on the part of a Court to draw a presumption of genuineness in respect of judicial documents i.e., deposition of witnesses in a judicial proceeding, or before any officer authorised by law to take such evidence, or statements or confessions by a prisoner or accused person which are recorded in accordance with the provisions of law. The first part deals with depositions recorded in a judicial proceeding. The second part deals with depositions recorded by officers authorised by law to record the deposition. There is no general presumption that every officer is authorised by law to record evidence. The third part deals with statements or confessions of prisoners or accused persons recorded in accordance with law, purporting to be signed by a Judge or Magistrate or any other officer who is authorised by law to so record. Magistrates of first class, have generally the power to record statements or confessions. Magistrates of second class have to be specially empowered to record under Cr.P.C. As the Magistrates record statements or confessions or evidence in open court, they observe prescribed rules and formalities which afford sufficient guarantee for raising the presumption that it was correctly done. When such a document is placed before the court, this section says that it shall be presumed that the document is genuine, that any statements as to the circumstances under which it was taken, purporting to be made by the person signing it, are true; and such evidence, statement or confession was duly taken 71 . This section makes it unnecessary for any formal proof of such document noted in the section; this section has nothing to do with admissibility which is dealt with by other sections in the Evidence Act . 72 An order passed by the Assistant Settlement Officer which was never questioned by the defendants though it was within their knowledge, would be presumed that it was made by the competent authority after following the due procedure and that it was a valid, genuine, and binding document between the parties under Section 80 of the Evidence Act. 73

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The presumptions to be raised under this section are considerably wider than those under S. 79. They embrace not only the genuineness of the document, but that it was duly taken and given under the circumstances recorded in the document. The presumptions under this section are not conclusive; they may be rebutted. In Section 4 defining the expression "shall presume" it is stated that wherever it is directed by this Act that the court shall presume a fact, it shall regard that fact as proved, unless and until it is disproved. It follows that what is presumed under this section (or other sections wherein the expression 'shall presume' is used) is only a rebuttable presumption and what is presumed is not conclusive. The word "Evidence" is defined in Section 3 of this Act. Order XVIII, Rules 5 to 13, C.P.C., andSections 272to 283, Cr.P.C., 1973, prescribe the mode of recording evidence. The Judges or Magistrates or other officers empowered to record evidence, statements or confessions are expected to observe the rules which prescribe the mode of recording. An affidavit is not evidence as defined in the Act and so it cannot be presumed to be genuine udner this section. 74 No presumption of truth arises in favour of the entries made in the revenue records not in accordance with law. 75 The word 'Judicial Proceeding' is not defined in the Act. There is a reference to judicial proceeding in Section 1 and 33. Section 4 of the Criminal Procedure Code defines a judicial proceeding as including a proceeding in the court of which evidence is or may be legally taken on oath. This section will not apply to any statement failing to satisfy the provisions of S. 33. Where on a deposition it is endorsed that the deposition was read out to the witness and admitted by him as correct, the Court is bound to accept it as correct under Section 80, until proved to be untrue. Even if it be that the deposition was not read over that would only amount to a curable irregularity. 76 It was held earlier that where the deposition of witness was not read over in the presence of the accused or his pleader according to Section 360,Cr.P.C. (Old), (Section 278,new Cr.P.C.) it is not admissible and no other evidence is admissible in proof of the statements in the deposition. 77 But in Elahi Baksh v. R, 78 the Calcutta High Court observed: "I can see no reason why, even in a prosecution for perjury, failure to comply with the provisions of Rules 5 and 6 of Order XVIII, CPC should render a deposition entirely inadmissible in evidence or why, if Section 80 cannot be called in aid, the deposition should not be proved, for instance by a judge who takes it down, or by the admission of the deponent. If it can be proved in such way, Section 91 will have no application. 79 The presumption under Section 80arises only when a confession is recorded strictly in accordance with law; since no procedure has been prescribed in law for recording of the statements by customs authorities under Sections 171-A of the Customs Act (1878), no presumption can be raised under Section 80 of the Evidence Act, when the recording of statement underSection 171-A is in English and there is failure to interpret it to the illiterate accused, conviction would be improper; that apart, it has to be decided on the facts and circumstances of the case whether the confession was free and voluntary. 80

This section is not applicable to a statement taken by an officer who has no jurisdiction or whose appointment is ultra vires . 81 Where Order XVIII, R. 5, C.P.C., has been complied with in recording evidence of witnesses, the court is bound to accept the evidence recorded, as correct underSection 80, until it is proved to be untrue. The court including a court of appeal cannot suo motu conduct an enquiry to examine its correctness. 82

It was held that a declaration made under the proviso to Cl. 2 of Goa, Daman and Diu (Citizenship) Order (1962) is not covered by Section 80 and presumption of genuineness cannot be drawn. 83 An accused after murdering his wife, went to the house of a Tahsildar exercising 2nd class Magisterial powers and confessed his guilt. The Tahasildar sent for the police. After the arrival of the head constable, the accused was arrested. Then the Tahsildar after recording the confession, handed him over to the head constable. The Supreme Court after finding that the Tahsildar exercising 2nd

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class Magisterial powers was not specially empowered to record any statement during investigation, held that no presumption can be drawn under Section 80, as it cannot be said that the confession was recorded in accordance with law. 84 If the confession is recorded in gross disregard of the precaution prescribed by Section 164,Cr.P.C., it will be entirely inadmissible.85 The expression 'Judicial Proceeding' does not apply to a statement recorded under Section 164,Cr.P.C. by a Magistrate during the course of investigation from a person who is not an accused. 86 The presumption under Section 80 cannot attach to the record of a court which is not competent to try the case. Such statements may however be proved during a fresh trial. 87 71 Hari Ram v. Emperor, AIR 1926 Lah 122. 72 See Padam Prasad v. R, AIR 1929 Cal 617(SB) . 73 Pappu Venkata Laxmi v. Kalli Pydithalli, 2003 AIHC 3110, 3118 (para 17) (AP). 74 (1972) 1 Cut WR 318. 75 Hari Singh v. Milap Chand, 2000 AIHC 346 (para 6) (HP). 76 Bhagwan Singh v. State of Punjab, AIR 1952 SC 214. See also In re : Muthukumara, 9 MLT 325; Queen v. Gonowsi, 22 WR 2. 77 Nalluri v. R, ILR 42 Mad 561; Kamatchinathan v. R, ILR 28 Mad 308; Kadir v. R, 42 IC 326; Mohendra Nath v. R, 8 CrLJ 116; R. v. Mungul, (1875) 23 WR 28. 78 ILR 45 Cal 825. 79 See also Md. Farooq v. Rex throhph Tufai Ahrmad, AIR 1950 All 501; Sheo Shankar v. R, AIR 1940 Nag 410; Feroz v. Mirza Amir, AIR 1923 Oudh 119; Mirabux v. R, AIR 1923 Nag 39. 80 State of Rajasthan v. Budhram, AIR 1969 Raj 49. 81 Emperor v. Ajit Kumar Ghoshe, AIR 1945 Cal 159; Anwar Ali Sarkar v. State, AIR 1955 Cal 535. 82 See also R. v. Viran, (1886) 9 Mad 224. 83 G.Y. Bhandare v. Erasme Sequeira, AIR 1972 Goa 25. 84 Nika Ram v. State of H.P., AIR 1972 SC 2077; State of U.P. v. Singhara, AIR 1964 SC 358. 85 Nazir Ahmad v. R, AIR 1936 PC 253(2) : 63 IA 372. 86 R. v. Purshotham, ILR 45 Bom 835(FB) : AIR 1921 Bom 3; Sheoraj v. State, AIR 1964 All 290(FB) ; Mohammed v. R, AIR 1932 Lah 254. 87 Anwar Ali Sarkar v. State, AIR 1955 Cal 535.

2. STATEMENT The use of the expression "statement" or "confession" in Section 80 in juxta position to a prisoner or an accused person and the context in which those words occur point out that it was intended that a statement as well as a confession of a prisoner or an accused duly taken by a Magistrate is to be presumed to be genuine. It is not correct to say that the word "statement" has reference to a statement of a witness as distinguished from a "confession" made by a prisoner or an accused person. 88 As Section 80 authorises the court to presume that the document is genuine, that any statements as to the circumstances under which it was taken be true and if it is a confession it was truly taken in accordance with law, the examination of the Magistrate is generally unnecessary, though it may be necessary in some cases. 89

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The depositions and statements may be proved by the production of the document without any witness being called to prove it. 90 A dying declaration, which has been recorded by a Magistrate, can be tendered in evidence without the Magistrate who recorded it being called. 1 When a dying declaration is taken and a certificate is appended that it was read over to the deponent and is signed by the Magistrate, there is a presumption under Section 80 that what is stated is true. 2 Confessional statement of an accused recorded in compliance with Section 164,Cr.P.C., can be admitted into evidence and made an exhibit even without examining the Magistrate who recorded it. 3 The record of a statement made by a witness to a Police Officer during investigation is not a record of evidence; the police investigation is not a judicial proceeding within this section. 4 Where there is substantial compliance of Section 164, reliance can be placed on Section 29 and 80 of the Evidence Act and any non-compliance may be regularised under Section 533 (new Section 463) Cr.P.C.5 So far as confessions are concerned, Section 24 of this Act places restrictions on the admissibility by stating that if it appears to the court, that making of the confession was by inducement, threat or promise it would not take it into consideration. Subject to such restrictions under Section 24, the presumption of genuineness under this section can be drawn and there is no inconsistency between Section 24 and 80. 6 Where the confession of an accused was found as one induced by police by torture, though having been recorded by the Magistrate properly, it would be improper to draw presumption under Section 80. 7

The Court will presume that a confession was duly recorded and that the circumstances under which the confession was recorded were such as had been set down in the record made by the Magistrate. It says nothing about there being any presumption regarding the voluntariness of the confession. 8 Where a confession, made before a Magistrate, did not bear his certificate, stating his belief that it was freely and voluntarily made, as required by S. 164(3)of the Criminal Procedure Code, it was held that it could not be admitted under this section without proof of its having been so made. 9 Where a person was charged for the offence of perjury under the Penal Code, as his deposition as a witness, contained a false statement, it was held that his deposition is to be produced in evidence not for purpose of proving its truth but for purpose of proving that he made it; that the Penal Code does not pay any regard to the question whether the deposition was read over or not to the witness as required underSection 360,Cr.P.C.10 Where the deposition of a witness was not signed by a judge no presumption can be drawn under Section 80 that he had signed on it. When the recordings of those depositions was not denied they are not invalid due to omission of judge's signature. 11 The statement of a witness in the committal proceedings comes within the scope of Section 74 as public documents. So, certified copies can be granted under Section 76 and they can be produced as proof of the contents of the same under Section 77. Presumption of genuineness is also available in respect of the certified copies of their depositions under Section 80. 12 Section 288,Cr.P.C. of 1973 (corresponding toSection 287old Cr.P.C.) says "the examination of the accused duly recorded by or before the committing Magistrate shall be tendered by the prosecutor and read as evidence". If such evidence was placed before the court and if the witness is examined, the evidence recorded before the committing Magistrate may be treated as evidence for all purposesi.e., for contradiction or impeaching the credit under Section 145 or for corroboration under Section 157 of this Act or as substantive evidence, as the basis of finding a verdict. 13 The statement of a witness who was also subjected to cross-examination in an earlier suit between the same parties, in absence of any challenge to the contents of it, reliance placed on such deposition in a subsequent suit between the same parties, was held to be proper. 14 The statements recorded in revenue records regarding nature of land though have presumptive value, may be rebutted by placing materials and evidence on record. 15

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88 Ram Sanehi v. State, AIR 1963 All 308. 89 Madi Ganga v. State of Orissa, AIR 1981 SC 1165; Md. Ali v. Emperor, AIR 1934 All 81. See also R. v. Lalji, AIR 1936 Pat 11; Kheman v. Crown, (1924) 6 Lah 58; Nga San Baiw v. Crown, (1902) 1 LBR 340(FB) . 90 Emperor v. Surajbali, (1933) 56 All 750. 1 Emperor v. Surajbali, (1933) 56 All 750. 2 In re : Karuppan Samban, 31 IC 359. 3 Bandhu Kichgi v. State, 1976 CrLJ 325(Ori) ; Bisipati Padhan v. State, AIR 1969 Ori 289 : 1969 CrLJ 1517(Ori) ; Kashmira Singh v. State of M.P., AIR 1952 SC 159 : 1952 CrLJ 839; Phatik Chandra Gogoi v. State of Assam, AIR 1988 CrLJ 24(Gauh) (though accused retracted the confession up Section 313 CrPC if it was corroborated on material particulars, though Magistrate was not examined, conviction can be based). 4 Raghuvir Singh v. Emperor, ILR 9C 455 at 458. 5 Shanti v. State, AIR 1978 Ori 19 (1713). 6 R. v. Panchkari, ILR 52 Cal 67; Nayeb v. R, ILR 61 Cal 399; Raggha v. R, AIR 1925 All 627 (1713); R. v. Jamuna Singh, AIR 1947 Pat 305; Bhukhin v. R, AIR 1948 Nag 344. 7 Based Sheikh v. King, AIR 1950 Cal 331. 8 Emperor v. Thakur Das Malo, (1943) 1 Cal 487 : AIR 1943 Cal 626 9 Emperor v. Radha Halwai, (1902) 7 CWN 220. See Nadir v. Empress, (1887) PR No. 36 of 1887 (Cr). 10 Md. Farooq v. R. Through Tufail Ahmed, AIR 1950 All 501. 11 Khaja Begum v. Abdul Hameed (1967) 2 An WR 66; Ramesh Chandra Das v. Emperor, (1919) 46 C 895; but see Md. Yasin v. Emperor, 52 Cal 431 : AIR 1925 Cal 782. 12 Savda Gar Singh alias Sago v. State of Punjab, (1974) 76 Punj LR 57. 13 Fakira v. R, AIR 1937 PC 119. 14 Mallana v. Muninanjamma, 2002 AIHC 751, 752 (para 10) (Kant). 15 Asstt. Commr. Dharwad and L.A.O. v. Secretary, Agri. P.M.C., Hubli, 2003 AIHC 1682, 1689 (para 10) (Kant).

3. IDENTITY OF THE DEPONANT Though there is presumption under Section 80 regarding the statements in a deposition in an earlier case as genuine, there is no presumption as to the identity of the deponent; when the certified copy is produced in a later proceeding and the identity of the deponent has to be proved. 16 Though under Section 80 the presumption of genuineness is only in respect of a statement recorded and not to the identity of the deponent, the court can look into the deposition itself to find out whether there is inherent evidence as to the identity of the deponent. If the deponent comes and admits that his deposition was recorded on a particular date and in a particular matter, no further proof of identity is necessary. 17 The Lahore High Court went to the extent of holding that not only a statement recorded in accordance with law by an officer authorised to record it and signed by him must be presumed to be genuine but also a statement made by the person concerned as expressly mentioned in the record of the statement. It may however be noted that in that case the identity was sufficiently proved by other evidence. 18 In the case of a very old document this may create difficulty as it will be practically impossible to get evidence of the identity of the deponent. However one can turn to the deposition to find inherent evidence as to the identity. 19

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Where a Registrar's endorsement showed that a person presented a document for registration and was identified by two persons, it was held that there is presumption of the execution of the document according to the Registrar's endorsement but it has to be shown that the person who admitted the execution was not an impostor 20 16 Mohammad Ali v. Emperor, AIR 1934 All 81; Brajabhallab v. Akhoy Bagdi, AIR 1926 Cal 705; Sulaiman v. King, AIR 1941 Rang 301; Abbasali Shah v. Md. Shah, AIR 1951 MB 92; R. v. Durga Sonar, (1885) 11 Cal 550; Bhagwat Prasad v. Sher Khan, AIR 1926 Oudh 489 (where Magistrate who recorded signed on it, it can be presumed as to the identity of the deponent). 17 Abbas Ali Shah v. Md. Shah, AIR 1951 MB 92. 18 Hari Ram v. Emperor, AIR 1926 Lah 122. 19 A. Bhagawat Prasad v. Sherkhan, AIR 1926 Oudh 489. 20 Gopal Das v. Thakurji, AIR 1943 PC 83.

4. MEMORANDUM OF IDENTIFICATION A presumption under Section 80 could only arise, if the memorandum of identification amounted to "evidence" within the meaning of Section 3 of the Act . Statements of the identifying witness recorded by a Magistrate in the identification memo under Section 164,Cr.P.C. are neither made by the witnesses in a judicial proceeding nor are they made on oath or affirmation, in order to amount to "evidence" within Section 3 of Act.21 A confession made by an accused before a Magistrate in a former Indian State cannot be admitted in evidence under this section. The Magistrate recording the confession must be examined to prove all the confession before it can be used as evidence. 22 The section does not deal with admissibility. It merely dispenses with the necessity of formal proof in certain cases. 23 The presumption under Section 80 applies as much to a certified copy of the deposition as to the original. 24 Under Order XVIII, Rule 15, CPC , the evidence of a witness should be read over to the witness. But there is no provision requiring the judge to certify that it has been so read over. Hence when in fact it is read over, the absence of such certificate does not render Section 80 inapplicable. 25 Where a deposition was not read over to the witness who read it himself it was held that there was substantial compliance with the relevant rule and the benefit of Section 80 of the Act is available. 21 Ram Sanehi v. State, AIR 1963 All 308; relying on Nazir Ahmad v. R., AIR 1936 PC 253(2); and Purshottam Ishvar Amin v. Emperor, 1921 Bom 3(FB) ; and dissenting from Asharfi v. State AIR 1961 All 153; Sheo Raj v. State, AIR 1964 All 290(FB) ; approving Ram Sanehi v. State, AIR 1963 All 308 and overruling Asharfi v. State, AIR 1961 All 153; Pritam Singh v. State, AIR 1971 Raj 184; Kanai Sheet v. State, 1981 CrLJ 527(Cal) ; Ramadhar v. State of Bihar, 1986 CrLJ 684(Pat) ; Gopi v. State of Rajasthan, 1974 WLN 78; (A memo of test identification). 22 Emperor v. Dhenka Amra, (1914) 16 Bom LR 261 : AIR 1914 Bom 41. 23 Queen v. Viran, (1886) 9 M 224; Padam Prasad Upadhyaya v. Emperor, AIR 1929 Cal 617. 24 Sarabj v. Mata Din, AIR 1920 Oudh 122 : 60 IC 437. 25 Arjun Kurmi v. Emperor, AIR 1927 Pat 100; Bhagvat Singh v. Emperor, AIR 1925 Pat 378; Ramesh Chandra Das v. Emperor, (1919) 46 Cal 895; Emperor v. Jagat Ram, (1918) 19 CrLJ 972.

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Ratanlal & Dhirajlal: Law of Evidence, Updated 23rd Edition/THE INDIAN EVIDENCE ACT (ACT 1 OF 1872)/PART II ON PROOF/CHAPTER V OF DOCUMENTARY EVIDENCE/PRESUMPTIONS AS TO DOCUMENTS/S. 81.

CHAPTER V OF DOCUMENTARY EVIDENCE PRESUMPTIONS AS TO DOCUMENTS S. 81. Presumption as to Gazettes, newspapers, private Acts of Parliament and other documents. The Court shall presume the genuineness of every document purporting to be the London Gazette or any Official Gazette, or the Government Gazette of any colony, dependency or possession of the British Crown, or to be a newspaper or journal, or to be a copy of a private Act of Parliament of the United Kingdom printed by the Queen's Printer and of every document purporting to be a document directed by any law to be kept by any person, if such document is kept substantially in the form required by law and is produced from proper custody. 1. PRINCIPLE

This section deals with four sets of documents which shall be presumed to be genuine. They are: 10)   Gazettes 9)   Gazetteers 7)   Newspapers or journals 5)   Every document directed by any law to be kept by any person, if that document is kept substantially in the form required by law and is produced from proper custody. Section 57, Cl. (7) of this Act states that if the fact of appointment to any public office is notified in any official gazette, the accession to the office, names, titles, functions and signatures of the person, filling that public office, may be taken judicial notice of. Section 37 of this Act provides that when the court has to form an opinion as to the existence of any fact of public nature, any statement of it made in an official gazette is relevant. Section 78(3) refers to proclamations, orders or regulations issued by the King or Queen or the Privy Council in the United Kingdom and they may be proved by production of the extracts of the London gazette. The latter part of Section 81 deals with most of the documents containing matters referred to in Section 35 and which are declared to be public documents under Section 74.

2. GAZETTES Though a gazette is not a conclusive evidence of the facts contained therein, the Court may in conjunction with other evidence and circumstances take it into consideration in adjudging the dispute in question. 26 When orders and notifications of a Government are published in the Government gazette, the court is entitled to take judicial notice under Section 57 and presume their genuineness

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under Section 81. 27 Where the state of affairs as to governmental business is published in a Government publication, it shall be presumed to be correct and genuine, unless rebutted. 28 It was held by the Nagpur High Court that though prima facie , the genuineness of a particular order published in the gazette of India has to be presumed under Section 81, it is a rebuttable presumption. In that case when a document purporting to be the same order printed in the Government Press of India was produced with a covering letter from the Secretary of the Government of India, from proper custody, and was in different terms, it was held that the order published in the gazette was wrongly printed. 29 26 Bala Shankar Maha Shankar Bhattjee v. Charity Commissioner, Gujarat, AIR 1995 SC 167 (para 22). 27 State v. Nilam Das, AIR 1952 HP 74; William Jacks and Co. Ltd., Calcutta v. State of Orissa, AIR 1965 Ori 190; Totavarri Sithar Om Chimakurty Kotlingam Firm v. State of A.P., (1961) 1 AP 296; Hasmukhlal Jagjivandas v. State; ILR 1970 Guj 942; Public Prosecutor v. Kamakshi Ammal, 1983 Mad LJ 617(Cri) . 28 R.S. Nayak v. A.R. Antulay, AIR 1986 SC 2045 relying on; Harpal Singh v. State of H.P., AIR 1981 SC 361 : 1981 SCC 560. See also Rohit Singh v. State of Bihar, (2006) 12 SCC 734, 745 (para 24). 29 Trimbk Shivrudra v. State, AIR 1950 Nag 203.

3. GAZETTEERS Gazetteer is admissible in evidence. The statement contained therein can be taken into account to discover historical material contained therein. The facts stated therein are evidence under Section 45 of the Evidence Act . 30 The Supreme Court held that where the question is whether the Math is "public" or "private" within the meaning of Section 6(7) of the Orissa H.R.E. Act 4 of 1939, the statements in the gazetteer can be relied on as providing historical material regarding the practice followed by the Math and its head. 31 The statements in the final report on settlement operations stating on what basis entries were made in the Record of Rights, are more authentic and reliable than the statements made in the District gazetteers. 32 Though this section refers to production from lawful custody, the Lahore High Court held that, if the Court has the concerned gazette, it is enough for the court under Section 81 to draw the presumption though it is not tendered. 33 There is no presumption of correctness attached to a copy of mutation record as to the date of death of the last holder. 34 Though the entries in the Patwari's annual report continued for 10 or 11 years, there cannot be any presumption under Section 81. 35 Regarding a report of a court of Enquiry appointed under Rule 75 of the Indian Aircraft Rules it was held that no presumption can be drawn under Section 81 and it has to be proved. 36 In spite of the oral evidence to the contrary, a court can take judicial notice of existence of a fact from the original judicial record on its file and presumption under Section 81 shall be drawn as to its correctness. 37 30 Pattakal Cheriyakoya v. Aliyathammuda B. Muthukoya, AIR 2008 (NOC) 1421(Ker) . 31 Mahant Shri Srinivas Ramanuj Das v. Surianarayan Das, AIR 1967 SC 256. 32 Kandon Soren v. Jitan Hembram, AIR 1973 Pat 206. 33 Bawa Sarup v. R, AIR 1925 Lah 299. The High Court in appeal can admit in evidence an official gazette; Nanakchand v. Emperor, AIR 1931 Lah 273. 34 Dalpat Singh v. Rajwant Singh, AIR 1954 Punj 33. 35 1950 All WR (Rev) 44 (All). 36 Indian Airlines Corp. v. Madhuri Chowdhari (Smt.), AIR 1965 Cal 252.

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37 Arun Kumar Boral v. Nirmal Chandra Mukherjee, (1971) 1 Cal 47.

4. NEWSPAPERS OR JOURNALS In Laxmi Raj Shetty v. State of Tamil Nadu 38 the Supreme Court held that facts stated in newspapers are hearsay in nature and are inadmissible unless the maker of the statement is examined; and that judicial notice cannot be taken of such facts 39 or unless the same is supported by other supporting materials. 40 The paper itself is not proof of its contents. Even if it is admitted in evidence without formal proof, it only amounts to an anonymous statement. 41 Since a newspaper report has no evidentiary value and it is not admissible in evidence, in the absence of any other material, the conclusion drawn by the Government only on its basis that the petitioners were indulging in political act ivities, was held to be erroneous. 42 Newspaper reports are not to be considered as evidence without their authenticity having been established. 43 There is no presumption as to the correctness of the contents of a newspaper. 44 H ALSBURY 45 states that a witness may refresh his memory by referring to a newspaper report, if he read it at the time when he had recollection of the statement therein contained and knew them to be true; but a newspaper report is not generally admissible as evidence of facts recorded in it. 46 A person who heard a speech and who read it in a newspaper at or near the time of the transaction, may refresh his memory by referring to that newspaper; he can say that he knew it to be correct when he read it. It is immaterial that the document was not printed by him or in his presence. Under Sections 7 of the Press and Registration of Books Act 25 of 1867 on the production of an authenticated copy a declaration made under the Act is admissible to prove that the person mentioned in the declaration is the publisher of a journal or newspaper. S UNDARA I YER J. observed: that it is very doubtful whether the language of the section supports the contention that Section 81 applies to public documents and not to newspapers; that the existence of a comma after the word "Journal" is against such contention; that even otherwise, the natural import of the words in the section do not appear to favour the view that the paper "printed by the Queen's printer" not only qualifies the expression "private Act of Parliament" but also "newspaper or journal;" that if once a person is proved to be a publisher of a newspaper, then a presumption under Section 81 can be drawn that what purports to be a newspaper of a particular name is that paper and that every copy of it was issued by the publisher of that paper; but the presumption under Section 81 does not include a presumption that it was printed and published by a person by whom it purports to be. 47 Where a person was prosecuted for publication of defamatory matter in a newspaper and the question was whether the matter amounted to defamation, it was held that production of a copy of the newspaper raises a presumption of the publication by him and the burden shifts to the accused to disprove it. 48 An extract of Government notification, in a newspaper is inadmissible 49 and so is the translated copy of a news item in absence of the whole newspaper having been filed. 50 The Nagpur High Court in Hasanali v. Dara Shah 51 following Cliquot's Champague's case 3 Wall (U.S.) 114, held that a catalogue of a firm is good evidence of the price etc., of the goods, and it is not hearsay. The Commercial Community would normally rely on market reports in newspapers which are based on general survey of the whole market. C OOLEY J. observed: "Evidence of the state of the markets as derived from the market reports in the newspapers should not have been excluded... As a matter of fact such reports which are based upon a general survey of the whole market and are constantly received and acted upon by dealers, are far more satisfactory and reliable than individual entries or individual sales or inquiries". 52 38 AIR 1988 SC 1274; Krishnamma v. Government of Tamil Nadu, 1999 CrLJ 1915, at p. 1919 (Mad); newspaper reports per se , not admissible, B. Singh v. U.O.I., AIR 2004 SC 1923 (para 4) : (2004) 3 SCC 363; Ramswaroop

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Bagari v. State of Rajasthan, AIR 2002 Raj 27; All India Anna Dravida Munnetra Kazhagam v. L.K. Tripathi, (2009) 5 SCC 417, 444 (para 75) : AIR 2009 SC 1314. 39 See also Harbhajan Singh v. State, AIR 1961 Punj 215; Narayan Choudhury v. Radha Gobinda Dutta, AIR 1971 Cal 53; Nachhatar Singh v. State of Punjab, (1985) 87 Punj LR 1 : 1985 CrLJ 115(NOC) ; Khilumal v. Arjundas Tulsidas, ILR 1959 Raj 524 : AIR 1959 Raj 280; Sangappa v. Shivamurthi Swamy, 1961 Mys 106; Baba Sarup Singh v. Emperor, AIR 1925 Lah 299; Ramayhandra v. Emperor, AIR 1930 Lah 371; Ravinder Kumar Sharma v. State of Assam, AIR 1999 SC 3571 (para 25); or in absence of any other reliable document, Amal Kumar Chatterjee v. State of U.P., 1999 AIHC 3901 (para 3) (All). 40 A. V. Amarnathan v. H.D. Kumaraswamy, AIR 2007 (NOC) 1380(Kant) : 2007 (3) AIR Kar R 59 (DB). 41 Bawa Sarup v. R, AIR 1925 Lah 299. 42 G.K. Bajpayee v. State of U.P., AIR 2005 All 65, 71 (para 24) : 2005 CrLJ 1985, 1991 (para 24 ) (All). Court declined to act on basis of newspaper report, D.S. Jain v. State of Chhattisgarh, AIR 2007 (NOC) 1960(Chh) . 43 Union of India v. Ranbir Singh Rathour, (2006) 11 SCC 696, 706-07 (para 42). 44 Bharat Sanchar Nigam Limited v. BPL Mobile Cellular Limited, (2008) 13 SCC 597, 623 (para 55). 45 4th Ed., Vol.17 (para 223). 46 Lord Rossmore v. Mowatt, (1850) 15 Jur 238; see also Ram Chandra v. R, AIR 1930 Lah 371. 47 Jeremiah v. Vas , ILR 36 Mad 457. 48 Dilip Chakraborty v. Public Prosecutor, 1976 CrLJ 1300(Cal) . 49 In re : Kottapalli Raghauiah, AIR 1953 Mad 780; Motilal Nehru v. R, AIR 1931 All 12. 50 Binod Kumar Jain v. Gauhati Municipal Corporation, AIR 1994 Gau 96 (para 11). 51 AIR 1949 Nag 282. 52 Sisson v. Cleveland & Co., 14 Mich 496.

5. BILL OF LADING The Bill of Lading is an evidence to establish the fact that the goods were act ually put on board and were received by the master of the ship. Therefore, unless proved otherwise the contents and details mentioned in the Bill of Lading are presumed to be true and correct. 53 53 S.K. Networks Company Ltd. v. Amulya Exports Ltd., 2006 AIHC 3683, 3689-90 (para 34) (Bom) : AIR 2007 Bom 15.

6. INTERNAL CIRCULARS ISSUED BY THE GOVT. There is no presumption as to correctness of such circulars.

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54 Bharat Sanchar Nigam Limited v. BPL Mobile Cellular Limited, (2008) 13 SCC 597, 623 (para 55).

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[S. 81-A.

Presumption as to Gazettes in electronic forms. The Court shall presume the genuineness of every electronic record purporting to be the Official Gazette, or purporting to be electronic record directed by any law to be kept by any person, if such electronic record is kept substantially in the form required by law and is produced from proper custody.] 1. THE INFORMATION TECHNOLOGY ACT , 2000 PRESUMPTION AS TO GAZETTES IN ELECTRONIC FORMS

The genuineness of the electronic records purporting to be the Official Gazette or purporting to be the electronic record directed by any law to be kept by a person shall be presumed, provided that it is substantially kept in accordance with the form required by the law and is produced from proper custody. 55 Inserted by the Information Technology Act, 2000, S. 92 Sch. II (w.e.f. 17-10-2000)

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CHAPTER V OF DOCUMENTARY EVIDENCE PRESUMPTIONS AS TO DOCUMENTS S. 82. Presumption as to document admissible in England without proof of seal or signature. When any document is produced before any Court, purporting to be a document which, by the law in force for the time being in England or Ireland, would be admissible in proof of any particular in any Court of Justice in England or Ireland, without proof of the seal or stamp or signature authenticating it, or of the judicial or official character claimed by the person by whom it purports to be signed, the Court shall presume that such seal, stamp or signature is genuine, and that the person signing it held, at the time when he signed it, the judicial or official character which he claims, and the document shall be admissible for the same purpose for which it would be admissible in England or Ireland. 1. PRINCIPLE

This section enables the courts to recognise presumptions with regard to certain classes of documents which are recognized in English Courts. The Court must presume (a ) that the seal or stamp or signature is genuine; and (b) that the person signing the document held, at the time when he signed, the judicial or official character he claims. Documents which, without proof of the seal or signature, or of the official character of the person by whom they purport to have been signed, are admissible in England, will be admissible in Courts in India. L ORD B ROUGHAM ' S Act of 1851 (14 and 15 Vic c. 99) Section 11 was in the following terms: "Every document which, by any law now in force or hereafter to be in force, is or shall be admissible in evidence of any particular fact in any court of Justice in England or Wales or Ireland without proof of the seal or stamp or signature authenticating the same, or of the judicial or official character of the person appearing to have signed the same, shall be admitted in evidence to the same extent and for the same purpose in any Court of Justice of any of the British colonies, or before any person having in any of such colonies, by law or consent of parties, authority to hear, receive and examine evidence, without proof of the seal or stamp, or signature, authenticating the same, or of the judicial or official character of the person appearing to have signed the same." Section 11and Section 19 of the aforesaid Act which included India in the definition of "British colonies" were repealed by the Indian Evidence Act (seeSection 2 of the Evidence Act, and the Schedule to the Act ) and instead the present section has been enacted, which substantially reproduces the repealed sections of L ORD B ROUGHAM ' S Act. Certified copies of the Probates granted by the Probate Division of the High Court of England, are admissible without proof under Section 82. 56 A certificate issued by the Manchester Chamber of Commerce testifying about the existence of a strike of coal mines is not a document coming within Section 82. 57

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56 Black Wood and Sons Ltd. v. Parasuran, AIR 1959 Mad 410. 57 Girdhardas v. Kerawala, AIR 1926 Bom 253. 58 Rahimatullah Khan v. Secretary of State for India, (1913) PR No. 63 of 1913 (Civil); Secretary of State v. Chimanlal Jamnadas, (1941) 44 Bom LR 295 : (1942) Bom 357.

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CHAPTER V OF DOCUMENTARY EVIDENCE PRESUMPTIONS AS TO DOCUMENTS S. 83. Presumption as to maps or plans made by authority of Government. The Court shall presume that maps or plans purporting to be made by the authority of the Central Government or any State Government were so made, and are accurate; but maps or plans made for the purposes of any cause must be proved to be accurate. 1. PRINCIPLE

According to this section maps and plans purporting to have been made by the authority of the Central or the State Government, shall be presumed to have been so made and be accurate. Other maps and plans which are made for the purpose of any cause or by any other agency must be proved to be accurate like any other fact. Where maps are prepared by private persons no presumption in favour of accuracy can be drawn under this section. This section must be read with Section 36, which deals with statements in maps, charts and plans. These are provable under Sections 77 and 79 by the production of certified copies. The presumption as to accuracy is limited only to maps or plans made under the authority of Government. 58 Such maps or plans contain the results of inquiries made under competent public authority. In all other cases proof of accuracy is needed. There is a distinction between relevancy and accuracy of maps and plans. According to Section 36 of this Act the statements of facts made in maps or charts published and generally offered for sale, and in maps or plans made under the authority of Government (Central or State) are by themselves relevant facts. Unless the statement of facts made in maps or plans are held to be relevant for a decision of a fact in issue before the Court, no question of drawing a presumption under Section 83 would arise. Under Section 36 there is no mention of presumption as to the accuracy of the statement of facts made in maps or plans. 59 The presumption under this section is not conclusive and is rebuttable. In the absence of evidence to the contrary, the court shall presume the accuracy of the maps and plans prepared by the authority of Central or State Government as they would be made on the results of certain enquiries by competent officers concerned with due publicity of matters in which the public are interested. 60 Regarding maps printed and expressly bearing an endorsement of the Government, presumption of accuracy arises under Section 83. 61 R ENELL ' S M AP in regard to road surveys and river surveys were held to be scientific and accurate and a presumption of accuracy should be drawn under Section 83. But the village sites shown in that map which was published before 1917 were held to be approximate. 62 Subsequently R ENELL ' S M AP was withdrawn from circulation by the Government and hence was held not admissible. 63

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Entries in the Cadastral survey map have presumptive value against the landlord of a neighbouring estate. 64 Relying on a map published by the Government it was held that the revocation of a licence for the supply of electric energy given to a company was valid as the company supplied the electricity to an area outside the area of supply. 65 In a case where a property in dispute was purchased from the Custodian Department, it was held that in the absence of evidence to the contrary, there was presumption of the accuracy in respect of the valuation forms and line plans prepared as per the rules made under the Displaced Persons (Compensation and Rehabilitation) Act of 1954, as they are prepared under the authority of the Government 66 The development plan prepared in compliance with the statutory provisions whose validity was never challenged and presumption of its correctness never rebutted, will be taken to be accurate. 67 Where the surveyor in drawing the map did not carry out joint measurements of the two disputed plots of the parties by taking into consideration the entries recorded in the property register maintained at the office of city surveyor together with the title deeds of the parties on which reliance was placed by them, such map of surveyor could not be admissible in evidence under Section 83 of the Evidence Act to show that the defendants have made encroachment on the land of the plaintiff. 68 There was nothing to show that the maps in question were prepared under the authority of any government, besides there being no other evidence to show the accuracy of the maps. It was held that no authenticity could be attached to them. 69 Onus of proving such a map as accurate lies on the party who wants to rely on the said map or plan. It has to be proved that the said map or plan or survey report is accurate by examining the person who actually prepared it. It is to overcome the instances where apart from playing fraud, there is a tendency to exaggerate, while preparing the maps or survey reports. 70 58 Rahimatullah Khan v. Secretary of State for India, (1913) PR No. 63 of 1913 (Civil); Secretary of State v. Chimanlal Jamnadas, (1941) 44 Bom LR 295 : (1942) Bom 357. 59 See Ram Kishore Sen v. Union of India, AIR 1965 Cal 282. 60 Jagadindra v. Secretary of State, 30 IA 44 : ILR 30 Cal 291 PC; Tarakdas v. Secretary of State, AIR 1935 PC 125. 61 Balai Chandra Ghose v. Tarapada Ghose, (1966) 2 Cal 147. 62 Haradas v. Secretary of State, AIR 1917 PC 86, but Gujarat High Court has held to the contrary by holding that no presumption as to accuracy of survey maps and charts can be attached unless surveyors were examined, Prabhatbhai Shankerbhai Parmar v. Mahijbhai Nanabhai Parmar, 1998 AIHC 4395 (paras 14 and 15) (Guj). (It seems that the learned counsel failed to bring the view of the Apex Court to the notice of his Lordship); Narash Narayan Roy v. Secretary of State, AIR 1923 PC 1 : 50 IA 121; Secretary of State v. Ananda Mohan Roy, AIR 1921 Cal 661; Nanda Lal v. Pramatha Nath, AIR 1933 Cal 222 (concerning with village sites). 63 Gadadhar Choudhury v. Sarat Chandra Chakrauarty, AIR 1941 Cal 193. 64 Radha Kishun v. Shyam Das, AIR 1933 Pat 671. 65 Electric Supply Co. of Burdwan v. State of West Bengal, AIR 1958 Cal 85. 66 Mannumal v. Prit Bai, 1970 Raj LW 302. 67 Morvi Municipality v. Arunodaya Mills Ltd., AIR 1995 Guj 109 (Paras 11-13). 68 Niranjana Bai Chandrakant Vira v. Pramilabai Balkrishna Zade, 2004 AIHC 2534, 2538 (para 14) (Bom) : 2004 (6) Bom CR 829 : 2004 (3) All MR 619. 69 Harendra Rai v. Chandrawati Devi, AIR 2007 Pat 120, 126 (paras 37, 38 and 40). 70 Ranganath Ramchandra Suryavanshi v. Mohan, AIR 2008 (NOC) 2814(Ker) : 2008 (5) AIR Kar R 369.

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2. MAPS OR PLANS MADE BY PRIVATE PERSONS The Supreme Court in Ram Kishore v. Union of India, 71 held that in the case of maps prepared by private persons and not under the authority of the Government, no presumption in favour of the accuracy can be drawn under Section 83. Where a village was shown as being in a particular district in the maps prepared under the authority of the Government, a presumption shall be drawn as to its accuracy under Section 83 and no importance can be attached to the recitals in private documents to the contrary. 72 Even if a map or plan is made under the authority of Government if it is not made for a public purpose but for private purposes it does not come within the meaning of this section. Where the Government was in possession of a Mahal merely as a private proprietor, a map prepared by an officer in charge of the Mahal, it was held the accuracy could not be presumed under this section. 73 Where a map was prepared at the instance of collector as a holder of a Trust Estate, it was held Section 83 has no application as it was a private document. 74 Where a collector ordered survey and drawing of a map of the disputed area of a river bed, it was held that as the map was prepared for a specific purpose, it would neither come under Section 36 nor under Section 83. 75 71 1966 SC 644. 72 See also Shibcharan v. Nil Kantha, 17 CLJ 642. 73 Junmejoy v. Dwarkanath, 5 Cal 287; Dinomani v. Brojomohini, ILR 29 Cal 187 : 29 IA 24(PC) ; Upendranath v. Chairman, Calcutta Corporation, 16 CWN 116; Ramachander v. Banshidhar, ILR 9 Cal 741; Harihar Prasad v. Janak Dulari, AIR 1941 Pat 118. 74 Preonath v. Durgatarini, 14 CLJ 578. 75 Kanto Prashad v. Jaggut, ILR 23 Cal 335; Rahimuddin v. Bhabangana, 19 IC 572.

3. MAPS PREPARED FOR ANY CAUSE The Privy Council held that no presumption as to accuracy can be drawn in regard to a map prepared in a suit showing the limits of a particular Mahal as it was not prepared under any authority of the Government nor was it published generally for public sale nor was it related to any matter of public or general interest. Such private map is not admissible in evidence against the persons who are not parties to the prior suit unless proved to be accurate. 76 The accuracy of private maps or maps prepared for any cause has to be proved by the person who prepared it. 77 The sketch map prepared on the basis of the cadastral map is not admissible in evidence.

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76 Kesho Prasad Singh Bhadur v. Bahuria Bhagogna Kuer, AIR 1937 PC 69 : ILR 16 Pat 258; Damodaran v. Karimba Plantation Co., Ltd., AIR 1959 Ker 358; See also Ram Kishore v. Union of India, AIR 1965 Cal 282; Ram Kishore v. Union of India, AIR 1966 SC 644. 77 Damodaran v. Karimba Plantations Co. Ltd., AIR 1959 Ker 358; Ram Kishore Sen v. Union of India, AIR 1965 Cal 282. 78 Coal India Ltd. v. Ananga Mohan Dutta, 1998 AIHC 2877 (para 8) (Gau).

4. CONSENT OR WAIVER BY PARTIES Where both parties relied on a map or plan and neither party raised any objection about the proof of its accuracy, it was held that proof of it was waived and it would be admissible without proof. 79 79 Md. Sulaiman v. Badruddin, AIR 1940 Lah 309; see also Madhabi v. Gaganendra, 9 Cal WN 111.

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CHAPTER V OF DOCUMENTARY EVIDENCE PRESUMPTIONS AS TO DOCUMENTS S. 84. Presumption as to collection of laws and reports of decisions. The Court shall presume the genuineness of every book purporting to be printed or published under the authority of the Government of any country, and to contain any of the laws of that country, and of every book purporting to contain reports of decisions of the Courts of such country. 1. PRINCIPLE

This section should be read along with Section 38, which makes relevant statements as to any law and rulings contained in officially printed books of any country. It dispenses with the proof of the genuineness of authorized books of any country containing laws and reports of decisions of courts. Section 57 authorizes the Courts to take judicial notice of the existence of all laws and statutes in India and in the United Kingdom. Section 74 recognizes statutory records to be public records. Section 78 lays down the method of proving the statute passed by the Legislature. W IGMORE (Section 2151) says:-The intolerable inconvenience of having to prove the genuineness of printed matter purporting to be published by the Government has led to general concession, by judicial decisions or by statute, that such purporting publications, at least when in the form of standard official documents constantly issued and referred to are assumed to be genuine. The only effect of Section 38 and 84 read together is that the court may take judicial notice of a publication containing foreign law, if it is issued under the authority of the foreign government concerned, and may accept the law as set out in the publication as the law in force in the particular foreign country at the relevant time. But, such a publication can not be evidence, that what is contained in it, is the whole law, which can only be proved by calling an expert as provided by Section 45. 80 The court has to give its reasons, after satisfying itself that it is necessary to consider the whole law of a foreign country for the decision of a case on hand and then call an expert to place the whole law of that country. 81 So far as India is concerned the judicial decisions are being printed and published by the Government, as Indian Law reports under the India Law Reports Act 18 of 1875. The report of a case in a newspaper is not within this section as the newspaper cannot be considered to be a book purporting to contain reports of decisions. 82 Regarding the law of limitation which was made in Kota State prior to 1942, when the original record was not available, it was held that Hidayat Ghair Mansukhshuda, Singha Dawan, bearing Kota Coat of

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Arms, purporting to have been published under the authority of His Highness of Kota, should be presumed to be genuine, though it did not contain reference to the order of His Highness, as the presumption would be in favour of its validity. 83 80 Kumar Jagadish Chandra Sinha v. Commissioner of I.T., West Bengal, AIR 1956 Cal 48. 81 Hindustan Heavy Chemicals Ltd. v. Krebs & Cie S.A. Paris, (1972) 1 Cal 506. 82 Superintendent and Remembrancer of Legal Affairs v. Sardar Bahadur Singh, AIR 1969 Cal 451. 83 Bhanwar Lal v. Lila Dhar, 1959 Raj LW 323.

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CHAPTER V OF DOCUMENTARY EVIDENCE PRESUMPTIONS AS TO DOCUMENTS S. 85. Presumption as to powers-of-attorney. The Court shall presume that every document purporting to be a power-of-attorney, and to have been executed before, and authenticated by, a Notary Public, or any Court, Judge, Magistrate, Indian Consul or Vice-Consul, or representative of the Central Government, was so executed and authenticated. 1. PRINCIPLE AND SCOPE

This section deals with the presumption in respect of a power of attorney regarding its execution and authentication by a notary public, or any court, Judge, Magistrate, Indian Consul or vice consul or representative of the Central Government. The above named persons are the authorities before whom the power of attorney is to be executed, and who, would authenticate them. When a power of attorney is so executed and authenticated and tendered in evidence the court shall presume the due execution and authentication. This section is an extension of a provision contained in the Registration Act , with reference to a power of attorney executed for the purpose of procuring the registration of conveyances or other instruments. W HARTON defines the word 'power of attorney' as:--"A writing given and made by one person authorising another, who in such a case, is called the attorney of the person (or donee of the power), approving him to do any lawful act instead of that person, as to receive rents, debts, to make appearances and application in court, before an officer for registration and the like. It may be either general or special i.e., to do all acts or to do some particular act ". This expression is not defined in the Evidence Act. Power-of-attorney includes any instruments empowering a specified person to act for and in the name of the person executing it. 84 The word 'notary public' is defined by W HARTON in his L AW L EXICON as follows:--"A 'notary public' is an officer who takes notes of anything which may concern the public; he attests deeds or writings to make them authentic in another country, but is principally employed in mercantile affairs, to make protests of bills of exchange, etc". Under Sections 138 of the Negotiable Instruments Act , 26 of 1881, the Central Government is authorised to appoint notaries public within any local area. Under Sections 2(d) of the Notaries Act of 1952 any person can be appointed as a notary and the duties of the notary are given in Section 8 of the said Act. This expression 'notary public' occurs in Section 78, Cl. (6) of this Act and in Sections 33 of the Registration Act , 1908.

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Under Sections 69 of the Registration Act 1908, a Register of the power of attorneys is to be maintained by the registering officer. UnderSection 74(1)(iii) of the Evidence Act, an entry in that register is a public document forming the act or record of the act of a public officer in the discharge of a statutory duty imposed upon him, a certified copy of the entry in that register would be admissible under Section 76 read with Section 63(1) and it would be proof of the original entry by virtue of Section 65(e) of the Evidence Act . Such entry would also be relevant under Section 35 of the Evidence Act. But what weight is to be attached to such an entry would depend upon the accuracy of the abstract of the power of attorney. 85 Section 85 is mandatory though it is not exhaustive. Under Section 57(6) of this Act the court shall take judicial notice of the seals of the Notary public. 86 Where the notary put the seal on the document a presumption under Section 57(6) can be raised regarding the genuineness of the seal of the said notary. 87 The Supreme Court in Jugraj Singh v. Jaswant Singh 88 observed: "Where the power of attorney was presented for registration and the endorsement of notary public shows that it had been subscribed and sworn before him, there is a presumption that he must have satisfied himself in discharge of his official duties, that the person executing it is the proper person; that the fact that the registrar does not say so in his endorsement, that he has satisfied himself, is not material". In the above Supreme Court case 89 the vendor of the property was in U.S.A., and he executed the power of attorney which was found to be not duly authenticated. On the basis of that power a sale deed was executed in India by the power of attorney agent. The vendor executed a second power of attorney duly authenticated ratifying the earlier power of attorney; it was held by the Supreme Court that the second power of attorney validates the transaction of sale and registration even though both were earlier to the second power of attorney; that such ratification relates back to the date of the act done and the agent is put in the same position as if he had authority to do it at that date; that the illegality of the registration was thus cured by the second power of attorney. Where the power of attorney was executed in a foreign country and was duly attested by a Notary Public of that country and it was authenticated by Financial Commissioner of Punjab whose signature and stamp were duly affixed on the document, it was held that it must be presumed that the power of attorney was properly executed and the same was held to be a valid document. 90 However, as to presumption of foreign power of attorney, the Calcutta High Court has held that it has to be authenticated by the Indian Consul or the relevant Indian authority, which in the instant case was not got done despite several adjournments and hence it was held that the document would not be received nor would the court lean in favour of its validity. 91 The Calcutta High Court observed: "Registration is a solemn act, to be performed in the presence of a competent official appointed to act as Registrar, whose duty is to attend the parties during the registration and see that the proper persons are present, are competent to act and are identified to his satisfaction and all things done before him in his official capacity and verified by his signature will be presumed to be done duly and to be in order. Of course it may be shown that a deliberate fraud upon him has been successfully committed; but this can only be on very much stronger evidence than is forthcoming here". 92 As there is no prescribed or established form of the nature and manner of authentication by a notary public, the same has to be gathered from the tenor, facts and circumstances of the power of attorney and its authentication by a notary public. 93 Two conditions have to be satisfied for applying the presumption under Section 85 in respect of the execution of a power of attorney: 11)   It must be executed before a notary public or any other person referred to in Section 85. 10)   It must be authenticated by the notary public or any person mentioned in Section 85. If one of the conditions is not satisfied Section 85 does not apply to raise any presumption in favour of that power of attorney. 1

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The presumption under Section 85 is available in favour of the original power of attorney holder provided mandate Section 85 is duly followed. In the instant case, neither the original power of attorney was produced nor notorised photocopy was produced on record. 2 When a document purporting to be a power of attorney and to have been executed before, and authenticated by, a notary public is produced before a Court, it was held that an affidavit of identification that the person, purporting to make the power of attorney, was the person named therein, is unnecessary. 3 Though there may not be any presumption under Section 85, in favour of a power of attorney, it does not follow that there is an opposite presumption that it has not been duly executed. 4 B as a power of attorney agent of A executed a registered sale deed in respect of A's property in favour of C, C filed a suit to evict a tenant from the property and his suit was dismissed and it was confirmed by the appellate court as the power of attorney was found defective. During the pendency of the second appeal preferred by C a fresh power of attorney duly executed by A and registered before the sub-Registrar validating all past transactions done by N, was filed in the second appeal. It was held that the second power of attorney is admissible in second appeal under Order XLI, Rule 27, C.P.C. without further proof and it must be taken to have cured the defect in the earlier power of attorney and validated the sale.5 The purpose of Sections 57(6) and 85 is to cut down recording of evidence. For such matters, like the due execution of a power of attorney in the present day of international commerce, there is no reason to limit the word 'notary public' in Section 85 or Section 57(6) to notaries appointed in India only. If the interpretation of the notary public is limited to notaries appointed in this country only it will become impossible to carry on commerce with foreign countries. 6 The very purpose of drawing a presumption under Sections 57 and 85 of the Evidence Act, would be nullified if proof is to be had from the foreign country, whether a particular person who had attested the document as a notary of that country is in fact a duly appointed notary or not. 7 A power of attorney in favour of a company's permanent delegate in Delhi was authenticated by a Judge of the foreign country. Its due execution and authentication was presumed. 8 It was held by the Calcutta High Court that by reason of the absence of reciprocal arrangements between India and Pakistan regarding powers of attorney, it cannot be presumed in regard to a power of attorney executed and authenticated in Pakistan executed before and authenticated by a notary public within the meaning of this section. 9 However, the Allahabad High Court held that in view of Sections 2(d) and Sections 3 of the Notaries Act 53 of 1952,Section 85applies not only to notaries public as defined in the Notaries Act , but also to notaries public functioning in other countries; that documents authenticated before notaries public functioning in other countries (Pakistan) must be presumed to have been duly authenticated withinSection 85. 10 Where a power of attorney was proved to be executed by the director of a nationalised bank in favour of another person, the presumption under Section 85 of the Act would arise and it would make no difference that the resolution authorising him to execute the power of attorney was not proved. 11 When all the parties were the residents of the city of Calcutta and the power of attorney was executed at Bombay without showing any reason, it was held that such a document could not be a valid piece of evidence under Section 85 of the Evidence Act. 12 Where the alleged power of attorney holder represented the respondent and a compromise was recorded though the respondent was not a party to the compromise petition and serious discrepancies were noticed as to the execution of the power of attorney, it was held that the power of attorney was false. 13 84 Indian Stamp Act , S. 2(21). 85 Pattu Kumari Bibi v. Nirmal Kumar Singh, AIR 1939 Cal 569, 577. 86 Performing Right Society Ltd. v. Indian Morning Post Restaurant, AIR 1939 Bom 347.

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87 Rajesh Wadhwa v. Sushma Govil, AIR 1989 Del 144. 88 AIR 1971 SC 761. 89 AIR 1971 SC 761. 90 Chanan Kaur v. Pakhar Singh, AIR 2004 P&H 121, 125 (para 10) : 2004 (1) Cur CC 259 : 2004 (1) civil Court C 225 : 2004 (2) ICC 26 : 2004 (1) Rec Civ R 113. 91 In the Goods of : Pradeep Kumar Jeloka , AIR 2008 (NOC) 2318(Cal) . 92 Gangamoyi Debi v. Troilucyanath Chowdhry , ILR 33 Cal 537. 93 Punjab National Bank v. Parmesh Knitting Works, AIR 1986 P&H 214. 1 Electric Construction Equipments Co., Ltd. v. Jagjit Electric Works, Sirsa, AIR 1984 Del 363. 2 Bank of India v. Allibhoy Mohammed, AIR 2008 Bom 81, 84 (para 18). 3 In the Goods of Mylne , ILR 33 Cal 625. 4 Ram Kailash Kunwar v. Ishwari Saran, AIR 1936 All 475. 5 Raja Ram v. Jagdish Prasad, 1979 WLN 756 : 1980 Raj LW 223. 6 National and Grindlays Band Ltd. v. Wovld Scienee News, AIR 1976, Del 263. 7 Rajesh Wadhwa v. Sushma Govil, AIR 1989 Del 144. 8 Rudnap Export-Import v. Eastern Associates Co., AIR 1984 Del 20. 9 Haji Abdul Gaffar v. Madan L. Khandelwal, (1966) 2 Cal 235; D. Sardar Singh v. Pissumal, AIR 1958 AP 107; Nar Bhadur v. Anil Krishna, AIR 1970 Manipur 57. 10 Abdul Jabbar v. Second Additional District Judgearai, AIR 1980 All 369 dissenting from Sardar Singh v. Pissumal H. Bankers, AIR 1958 AP 107 and Nar Bhadur v. Anil Krishna, AIR 1970 Manipur 57. See also National and Grindlays Bank v. World Science News, AIR 1976 Del 263. 11 Punjab National Bank v. Khazan Singh, AIR 2004 P&H 282, 288 (para 15) : 2005 (2) Bank Cas 38 : 2004 (4) Civ LJ 922 : 2004 (3) Punj LR 458 : 2004 (3) Rec Civ R 96. 12 Renuprova Paul v. Sanyasi Charan Ghosh, AIR 2005 Cal 118 (para 2). 13 Shivalingappa Appayya Halagi v. Indumati Bhimappa Teli, AIR 2006 Kant 127, 128 (para 5).

2. AUTHENTICATION It was held that the authentication under this section is not merely attestation, but it means that the person authenticating has assured himself of the identity of the person who has signed the instrument as well as the fact of execution, it is for this reason that the presumption under this section, unless rebutted, stands and the document can be admitted in evidence as a document executed by the person alleged to have executed it without any further proof. 14 No particular form of authentication by a notary public is given under Section 85. Notary public need not use the word 'authentication' in the attestation made by him on the document. Attestation by a notary public stating 'subscribed and sworn to before me' is valid authentication. 15 As there is no prescribed or established form of the nature and manner of authentication by a notary public, the same has to be gathered from the tenor, facts and circumstances of the power of attorney and its authentication by a notary public. 16 The execution and authentication of a document cannot be doubted merely because the document had not been drafted or typed out by the executant before the Notary Public. 17

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A witness does not need a power of attorney or any authority in writing from the party calling him as its witness to depose about certain facts before a Court which are within his special knowledge. 18 14 Wali Mohammad v. Jamaluddin, AIR 1950 All 524; Kulsumun-nisa v. Ahmadi, AIR 1972 All 219. 15 Jugraj v. Jaswantsingh, AIR 1967 Punj 345; confirmed in Jugraj v. Keswantsingh, AIR 1971 SC 761. See also Northland Traders v. Bank of Baroda, AIR 1994 All 381 (para 11). 16 Punjab National Bank v. Parmesh Knitting Works, AIR 1986 P&H 214. 17 Raj Kumar Gupta v. Des Raj, AIR 1995 HP 107 (para 13). 18 Chander Kanta Singhal v. M/s. Kapadia Exports, 1998 AIHC 153 (paras 20-21) (Del).

3. PRESUMPTION AS TO AUTHENTICATION Where there was thumb impression of the executant of the power of attorney and the Magistrate used a rubber stamp and put his signature on the basis of the identification made by an advocate, it was held that the presumption under Section 85 may operate in favour of the party relying on a document and to the prejudice of the party alleging that the document is not a genuine one; that for the purpose of such presumption to operate, the authentication must be clear, specific, decisive and benefit of any doubt; if there is the slightest doubt the Court must not rely on the presumption under Section 85. 19 Though a presumption of execution and the authentication is drawn under Section 85, the document itself is not sufficient to prove the statements contained in it. The statements are to be proved like any other facts. 20 In re : Sladen 21 dissenting from the decision, in the goods of A.J. Primrose (deceased) (16 Cal 776), it was held that this section is not exhaustive regarding the proof of power of attorney and there are other modes of proving the execution of it, for example, by an affidavit. In the Madras case the power of attorney did not purport to have been executed in the presence of a notary public or any other of the persons designated in Section 84, but one of the attestors gave a declaration before the notary public that he witnessed the execution of the power of attorney by one of the executants and the signature of the other attesting witness was genuine. That declaration was certified by the notary public. On these facts it was held the power of attorney was sufficiently proved. 22 Genuineness of a power of attorney can be presumed if it is executed before a Notary Public, or any Court, or Judge, or Magistrate. 23 Once the document is authenticated by notary public, it would be presumed that the document was duly executed and the production of the notary public or the executant as witness to prove the same is not necessary. In the instant case the Executive Director of the Company had executed the power of attorney which was duly notarised and whereunder an employee of the company was authorised to file eviction petition. It was held that the authority of the said employee, who instituted the petition and signed and verified the pleadings could not be challenged on the grounds of non-production of the Executive Director of the company as witness as the authority of the said employee stood proved by means of production of the authenticated and notarised power of attorney bearing the seal of the notary public. 24 The presumption under Section 85 is regarding both execution and authentication in respect of all documents which purport to be power of attorney executed before and authenticated by the notary. Non-attestation by witnesses will not be fatal, the same being not obligatory. 25 19 Mohanshet v. Jayashri, AIR 1979 Bom 202. 20 Siva Pratap Bhattadu v. Commissioner of I.T., Madras AIR 1924 Mad 880; relying on Salimatul Fatima v. Koylashpoti Narain Singh, (1890) 17 Cal 903 (which dissented Krito Nath Koondoo v. T.F. Brown, (1886) 14 Cal 176; Nar Bahadur v. Anil Krishna, AIR 1970 Manipur 57, at 62; Thama v. Govind, (1907) Part II 9 Bom LR 401. 21 ILR 2 Mad 492. 22 See also Performing Right Society Ltd. v. Indian Morning Post Restaurant, AIR 1939 Bom 347; Yogesh Singh v. Niranjanlal, AIR 1981 Del 222; Punjab National Bank v. Parmesh Knitting Works, AIR 1986 P&H 214.

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23 Sukhdeo v. Bhanwarlal, 2000 AIHC 2461 (para 45) (Raj). 24 Kamla Rani v. Texmaco Ltd., AIR 2007 Del 147, 149-150 (paras 31-33). 25 K.A. Pradeep v. Branch Manager, Nedungadi Bank Ltd., Manjeri, AIR 2007 Ker 269, 270-71 (para 7).

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[S. 85-A.

Presumption as to electronic agreements. The Court shall presume that every electronic record purporting to be an agreement containing the digital signatures of the parties was so concluded by affixing the digital signature of the parties]. 1. THE INFORMATION TECHNOLOGY ACT , 2000 PRESUMPTION AS TO ELECTRONIC AGREEMENTS

S. 85-A inserted by the above mentioned Act says that every electronic record purporting to be an agreement containing digital signatures of the parties, so concluded by affixing the digital signature of the parties, shall be so presumed by the Court. 26 Inserted by the Information Technology Act, 2000, S. 92 Sch. II (w.e.f. 17-10-2000).

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[S. 85-B.

Presumption as to electronic records and digital signatures. 12)   In any proceedings involving a secure electronic record, the Court shall presume unless contrary is proved, that the secure electronic record has not been altered since the specific point of time to which the secure status relates. 11)   In any proceedings, involving secure digital signature, the Court shall presume unless the contrary is proved that-1. the secure digital signature is affixed by subscriber with the intention of signing or approving the electronic record; 1. except in the case of a secure electronic record or a secure digital signature, nothing in this section shall create any presumption relating to authenticity and integrity of the electronic record or any digital signature.] 1. THE INFORMATION TECHNOLOGY ACT , 2000 PRESUMPTION AS TO ELECTRONIC RECORDS AND DIGITAL SIGNATURES

In any proceedings involving a secure electronic record, unless contrary is proved, the Court shall presume that such record has not been altered since the specified point of time to which the secure status relates and the secure digital signature was affixed by the subscriber with the intention of signing or approving the electronic record. There shall be no presumption relating to the authenticity and integrity of the electronic record or any digital signature. For secure system, see S. 2(ze) of the I.T. Act . 27 Inserted by the Information Technology Act, 2000, S. 92 Sch. II (w.e.f. 17-10-2000).

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[S. 85-C.

Presumption as to Digital Signature Certificates. The Court shall presume, unless contrary is proved, that the information listed in a Digital Signature Certificate is correct, except for information specified as subscriber information which has not been verified, if the certificate was accepted by the subscriber.] 1. THE INFORMATION TECHNOLOGY ACT , 2000 PRESUMPTION AS TO DIGITAL SIGNATURE CERTIFICATES

The Court has to presume, unless contrary is proved that the information listed in a Digital Signature Certificate is correct but it does not apply to the information specified as subscriber information which has not been verified, if the certificate was accepted by the subscriber. 28 Inserted by the Information Technology Act, 2000, S. 92 Sch. II (w.e.f. 17-10-2000).

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CHAPTER V OF DOCUMENTARY EVIDENCE PRESUMPTIONS AS TO DOCUMENTS S. 86. Presumption as to certified copies of foreign judicial records. The Court may presume that any document purporting to be a certified copy of any judicial record of any country not forming part of India or of Her Majesty's Dominions is genuine and accurate, if the document purports to be certified in any manner which is certified by any representative of the Central Government in or for such country to be the manner commonly in use in that country for the certification of copies of judicial records. An officer who, with respect to any territory or place not forming part of India or Her Majesty's Dominions, is a Political Agent therefor, as defined in Sections 3 , clause (43), of the General Clauses Act , 1897, shall, for the purposes of this section, be deemed to be a representative of the Central Government in and for the country comprising that territory or place. 1. PRINCIPLE AND SCOPE

This section deals with the presumption in respect of certified copy of any judicial record of a country, not forming part of India, or of the Dominions as genuine and accurate. The presumption contemplated under this section is permissive and a discretion is given to the Court whether to draw the presumption under the section or not, as the expression 'may presume' is used in this section. The definition of the expression "May Presume" is given in Section 4 of this Act . The explanation in the last paragraph of this section was added by Section 4 of the Amending Act 5 of 1899, stating that an officer who is a Political Agent as defined in Section 3of Cl. (43) of the General Clauses Act of 1897 of any territory or place not forming part of India or Her Majesty's Dominions; shall be deemed to be a representative of the Central Government in and for the country comprising the territory or place. The expression 'Political Agent' in Sections 3(43) of the General Clauses Act is defined as:--"Political agent shall mean (a) in relation to any territory outside India, the principal officer by whatever name called, representing the Central Government in such territory; and (b) in relation to any territory within India to which theAct or Regulation containing the expression does not extend, any officer appointed by the Central Government to exercise all or any of the powers of a political agent under that Act or Regulation. In a case under the Extradition Act the expression 'Political Agent' was held to include as Assistant Political Agent.29 This section has to be read with Section 14 , which states "The court shall presume, upon the production of any document purporting to be a certified copy of a foreign judgement, that such judgment was pronounced by a Court of a competent jurisdiction, unless the contrary appears on the record; but such presumption may be displaced by proving want of jurisdiction". In the absence of a certificate referred to in this section a foreign judgment is not admissible in evidence as the provision in Section 86 is imperative and must be complied with. 30

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The admission of a judgment is not a condition precedent for raising a presumption under Section 86. The presumption may be drawn before the judgment is admitted. 31 This section is not exhaustive of the modes of proof of foreign judicial records.

32

Uncertified copies of a foreign judicial record may be proved by a competent witness deposing to the correctness of the copies. 33 A certified copy of a foreign judicial record may be proved by a witness deposing that it was sealed and certified by the Registrar of a foreign court. 34 Where a certified copy of a deposition given in a Court in Kutch State was tendered in evidence and when it was found that the certification was not done in the manner required by Section 76, it was held that it is not inadmissible. As Section 86 does not exclude other proof. Section 114 may be applied for drawing the presumption that a copy is a correct copy of the record of the deposition. 35 It was held that if the presumption is not available under one section, it can still be drawn under another section of the Evidence Act if available. It all depends upon the circumstances available in a case as applicable to a particular document. 36 If a copy of a foreign judicial record purports to be certified in a given way, the Court may presume it to be genuine and accurate. It, however, does not exclude proof, for, under Sections 65 and 66, secondary evidence may be given of public documents, without notice to the adverse party, when the person in possession of documents is out of the reach of, or not subject to, the process of the court. 37 29 Hadibandhu Padhan v. Emperor, AIR 1946 Pat 196. 30 State v. Abdul Hamid, AIR 1957 Punj 86; Murali Das v. Achutt Das, ILR 5 Lah 105 : AIR 1924 Lah 493; (A certificate required under this Section cannot be dispensed with on the ground that it can be obtained any time. 31 Badat and Co. v. East India Trading Co., AIR 1964 SC 538. 32 State v. Abdul Hamid, AIR 1957 Punj 86. 33 Haranand v. Ramgopal, ILR 27 Cal 639 : 27 IA 1 PC. 34 Mrnomohiney v. Grees Chander (1873) 8 Mad Journal 14. 35 Vallabdas Mulji v. Pranshankar, AIR 1929 Bom 24. 36 Ramjas v. Surendra Nath, AIR 1980 All 385(FB) . 37 Haranund v. Ram Gopal, (1899) 2 Bom LR 562 : 27 IA 1 : ILR 27 Cal 639; Vallabhdas v. Pranshankar, (1926) 30 Bom LR 1519 : AIR 1929 Bom 24. This section contains an instance which Section 65(f) seems to refer to.

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CHAPTER V OF DOCUMENTARY EVIDENCE PRESUMPTIONS AS TO DOCUMENTS S. 87. Presumption as to books, maps and charts. The Court may presume that any book to which it may refer for information on matters of public or general interest, and that any published map or chart, the statements of which are relevant facts and which is produced for its inspection, was written and published by the person and at the time and place, by whom or at which it purports to have been written or published. 1. PRINCIPLE

This section deals with the presumption in regard to books containing information on matters of public and general interest and also in respect of statements in any published map or chart. The presumption is only in respect of the authorship, time and place, but not with regard to the accuracy of the facts contained in such book, map, or chart. 38 A map is nothing but statement of the maker thereof regarding the state of configuration of a particular site and objects standing thereon, by lines and pictorial representations, instead of by words of mouth, and admitting such a map in evidence without calling the maker thereof is admitting statements by a third party who is not called as witness and amounts to admitting hearsay evidence. So mere proof of the map by itself is only proof of the fact of the preparation of the map and apart from independent proof about the correctness of its contents it can not be said to have any bearing on the matters in issue and cannot be admitted into evidence unless shown to be admissible under any section of this Act. But a map and a chitta prepared under the orders of the defendants and filed along with collection papers showing collection on basis of the map and the chitta were held to be rightly admitted in evidence under Section 13. 39 For the proper understanding of the scope of this section reference may be made to Sections 36, 57, 83, 90 and 114 of the Evidence Act . Section 36 states, when the statements of facts are made in a published map or chart generally offered for public sale, or when they are made under the authority of the Government, they would be relevant if such statements are of facts in issue or of relevant facts. Section 57(13) says that in regard to matters of public history, literature, science or art the court may resort for its aid to appropriate books and documents for reference. Section 83 says that the court shall presume the accuracy of the maps and plans purporting to be made by the authority of the Central or State Government, but not private plans or plans made for any particular purpose. Section 90 says that if it is an ancient document of over 30 years and produced from a proper custody the court may presume that the signature and every other part of the document purporting to be in the handwriting of a person is in his handwriting and that it was duly attested and executed. That section is applicable to a map or a plan which is also a document. Under Section 114 there a general presumption about the existence of any fact which is likely to have happened.

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Where a charitable society in England published a pamphlet on schizophrenia for collecting funds to give treatment to diseased it was held as the authorship of the pamphlet was not established, it can not be treated as an authoritative pamphlet. 40 The Privy Council in Martand Rao v. Malharao 41 held that the opinions expressed in the official reports should not be treated as conclusive in respect of matters requiring judicial determination but there cannot be any objection in referring to the reports for purpose of gathering historical facts which are not in issue. 42 38 Brajraj Singh v. Yogendra Pal Singh, AIR 1952 MB 146. 39 Dwijesh Chandra Roy Chaudhuri v. Naresh Chandra Gupta, (1946) 1 Cal 149 : AIR 1945 Cal 492. 40 Dastane v. Dastane, ILR 1969 Bom 1024 : AIR 1970 Bom 312. 41 AIR 1928 PC 10 : 55 IA 45. 42 Rajendra Malojirao v. State of MB; AIR 1953 MB 97(FB) .

2. MAPS AND CHARTS Though great weight may be attached to the accuracy of the survey maps, they are not conclusive, but in the absence of evidence to the contrary, they would be presumed to be accurate. 43 Regarding revenue survey maps, the Privy Council held that as the revenue has to be conducted by a public officer in the discharge of his statutory duty and as he has to give opportunity to all persons interested so as to enable them to make their claims and produce evidence in support of their claims, the maps prepared after due enquiry are to be presumed to be correct unless they are shown to be wrong. 44 Though the land in dispute was recorded in revenue records as agricultural land but the materials on record showed that the land had not been used for agricultural purposes at any point of time as it was located in municipal limits. It was held that the presumption in respect of entries in revenue records was got rebutted by placing material on record. 45 The accuracy as to the information contained in a map must depend upon the source from which the information is obtained. 46 43 Secretary of State for India v. Maharaja Birendra Kishore Manikya, AIR 1916 PC 141. 44 Tarakdas Acharjee v. Secretary of State, AIR 1935 PC 125. 45 Asstt. Commr. Dharwad L.A.O. v. Secretary, Agri. P.M.C., Hubli, 2003 AIHC 1682, 1689 (para 10) (Kant). 46 Nana Akpandja v. Fiaja Egblomesse, AIR 1939 PC 143.

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CHAPTER V OF DOCUMENTARY EVIDENCE PRESUMPTIONS AS TO DOCUMENTS S. 88. Presumption as to telegraphic messages. The Court may presume that a message, forwarded from a telegraph office to the person to whom such message purports to be addressed, corresponds with a message delivered for transmission at the office from which the message purports to be sent; but the Court shall not make any presumption as to the person by whom such message was delivered for transmission. 1. PRINCIPLE AND SCOPE

This section allows the Court to presume that a message forwarded from a telegraph office to a person corresponds with the message delivered for transmission and the same was delivered to the addressee, but there is no presumption as to the person by whom the message was sent or delivered for transmission. The presumption is based on the principle that official acts are regularly performed. This section enables the court to accept the hearsay statement as evidence of the identity of the message delivered with that handed in. The presumption under this section is available only if it is proved that the message has been delivered to the person to whom the message is addressed. 47 In the absence of such evidence the telegram cannot be held to have been proved. A telegram is primary evidence of the fact that the same was delivered to the assessee on the date indicated therein. 48 The presumption under this section is only with reference to the message that is transmitted to the addressee from the telegraph office. The last portion of the section is mandatory and the court shall not make any presumption as to the person by whom such message was delivered for transmission.

49

The Supreme Court held: "It is true that under Section 88 there is a presumption only that the message received by the addressee corresponds with the message delivered for transmission at the office of origin. There is no presumption as to the person who delivered such a message for transmission. But proof of authorship of the message need not be direct and may be circumstantial. The contents of the message received in the context of the chain of correspondence, may well furnish proof of the authorship of the message at the dispatching end". 50 Under Section 88 the presumption is limited to what is expressively provided in the section. The form handed over into the post office by the sender and not the form delivered by the post office to the addressee, is the original of the telegram. Either the original must be produced by an official from the post office concerned or proof of its destruction given before a copy can be admitted as secondary evidence. 51

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Where a sanction order for prosecution was communicated by a telegram from a Government Office, it was held that the telegram must be proved to have emanated from the Government Office as there is no presumption under Section 88 as to the person by whom such message was delivered for transmission. 52 Where a party sent a telegram to a Court stating that he is ill and prayed for postponement of the case, it was held that the telegram is no evidence as there is no presumption under Section 88 as to the person who sent it and when the case was pending for a number of years due to dilatory conduct of that party the court is justified in not act ing upon on the telegram. 53 Where the original message is not proved to be in the handwriting of an alleged person, Section 88 is a bar for presuming that he is the sender of the message. 54 Where there is no evidence regarding the signature appearing on the telegram showing the identity, the telegram cannot be presumed to have been sent by the accused. 55 A telegram was sent by the police in South Africa to the Police in Bombay stating that certain bills of exchange were stolen on which basis Bombay police started their investigation. The Bombay High Court held that the telegraph office makes no enquiries and is in no way responsible regarding the identity of the person who delivers for transmission and much less responsible for its contents. A reasonable presumption under Section 114 of the Evidence Act can be drawn that the telegram emanated from South Africa, and so it cannot be rendered inadmissible under Section 88, if in reply to the telegram a reply is sent to the sender and is acknowledged by another telegram from the sender. 56 The contents of the telegram are not evidence of the facts stated therein. 57 The presumption under this section applicable to telegraph messages would also apply to radio messages. 58 Where an advocate conveyed a notice to quit through a phonogram, it was held that it was not a valid notice; as the appearance of the name of the advocate on the phonogram was of no importance, unless it is proved. 59 The presumption arises when the original telegram which was destroyed, was delivered to the addressee mentioned therein, especially when the opposite party fails to produce any evidence by way of rebuttal. 60 However, the contents of the message in a telegram in the context of a chain of correspondence may furnish proof of authorship. 61 47 Thakur Singh v. Emperor, 10 CrLJ 520. 48 Abba v. Suresh, 1984 Delhi NOC 131. 49 Kishore Chandra v. Ganesh Prasad, AIR 1954 SC 316 : 1954 SCR 919; Raghunath v. R, AIR 1933 Pat 96; Saila Behari v. State of Orissa, AIR 1966 Ori 150. 50 Mobarik Ali Ahmed v. State of Bombay, AIR 1957 SC 857 : 1958 SCR 328. 51 Punnakotaiah v. Kolikamba, AIR 1967 AP 83; Henkel v. Pape, (1871) LR 6 EX 7; see also R. v. Regan, (1887) 16 Cox CC. 52 Varadarajulu v. R., AIR 1920 Mad 928 : ILR 42 Mad 885. 53 Mohanlal v. Indermal, AIR 1954 Raj 238. 54 Raghunath Pandey v. Emperor, AIR 1933 Pat 96. 55 Sudhir Chandra v. State, AIR 1971 Tripura 8 : 1971 CrLJ 86. 56 Emperor v. Abdul Gani, ILR 49 Bom 878 : AIR 1926 Bom 71. 57 Judah v. Isolyne Saroj Bhashini Bose, AIR 1945 PC 174. 58 Saila Behari v. State of Orissa, AIR 1966 Ori 150; as per D AS J. 59 Shyam Narayan v. Raghunath, AIR 1977 Pat 155.

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60 Manchlal v. Shah Manikchand, AIR 1988 Kant 221. 61 Saila Behari v. State of Orissa, 1966 Ori 150.

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[S. 88-A.

Presumption as to electronic messages. The Court may presume that an electronic message forwarded by the originator through an electronic mail server to the addressee to whom the message purports to be addressed corresponds with the message as fed into his computer for transmission; but the Court shall not make any presumption as to the person by whom such message was sent. Explanation. --For the purposes of this section, the expressions "addressee" and "originator" shall have the same meanings respectively assigned to them in clauses (b ) and (za ) of subsection (1) of Sections 2 of the Information Technology Act , 2000.] 3.   THE INFORMATION TECHNOLOGY ACT , 2000 PRESUMPTION AS TO ELECTRONIC MESSAGES The Section 88A, inserted by the said Act, provides that the Court may presume that an electronic message forwarded by the originator through an electronic mail server to the addressee corresponds with the message as fed into his computer for transmission but there shall be no presumption as to the person by whom such matter was sent. The explanation says that the terms "addressee" and "originator" will have the same meeting as is assigned to them in clauses (b) and (za) of sub-section 1 of S. 2 of I.T. Act. 62 Inserted by the Information Technology Act, 2000, S. 92 Sch. II (w.e.f. 2000).

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CHAPTER V OF DOCUMENTARY EVIDENCE PRESUMPTIONS AS TO DOCUMENTS S. 89. Presumption as to due execution, etc., of documents not produced. The Court shall presume that every document, called for and not produced after notice to produce, was attested, stamped and executed in the manner required by law. 1. PRINCIPLE AND SCOPE

This section states that when a document is called for from any person and he does not produce it after proper notice to produce it the Court shall presume that the document was duly attested, stamped, and executed. This section is based on the principle that no one shall be allowed to take advantage of his own wrong. This section is based on the principle of necessity also.

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If it is shown that a document is in the person's possession or power and despite notice given to him to produce the document he does not produce it, the conduct of the party justifies an inference to be drawn against him and in that case the principle of necessity is invoked and the court is authorised to presume that the document which has not been produced must have been properly attested, stamped and executed in the manner required by law. 64 In Section 65, it is stated that secondary evidence may be given of the existence, condition or contents of a document in possession of any person legally bound to produce it and when, after the notice mentioned in Section 66 such person does not produce it. Under Section 65 such notice to produce the document as is prescribed by law is to be given. Order XVI, Rule 6 of CPC of 1908 provides for issuing or serving notice on the opposite party. If such procedure is followed for production of a document from a person and if he does not produce it then Section 89 would come into play and the court shall presume that the document so required was duly attested, stamped and executed in the manner prescribed by law. 65 Though the section does not refer to the person who is called to produce the document, it is obvious that it is restricted to cases where the notice is given to a party and will not apply to a document which is in the possession of a stranger who refuses to produce it though summoned to do so. The presumption as to due execution, attestation, and stamping cannot arise in favour of a party, where notice to produce the document has not been given to the opposite party. 66 The condition precedent for the application of Section 89 is that the original document must have been called and has not been produced after a notice was given to produce it. These conditions suggest that the statutory presumption arises under Section 89 in all cases which fall under Section 65(a) and Section 66 of the Evidence Act . Once a presumption is drawn under Section 89 it can not be easily rebutted by the production of the original document at a later stage. 67

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When the plaintiff's allegation that a document was in defendant's possession is found to be correct, the defendant without producing the document cannot be allowed to contend that it was not stamped according to law. 68 Once the plaintiff excuses himself from the production of the original documents on the plea that they are not traced or are lost, the question of giving notice for production does not arise. 69 The presumption under this section would not arise in respect of proper stamping of the document when it is admitted that the original document was unstamped. 70 Where a document is shown to have remained unstamped for some time after its execution the party who relies on it must prove that it is duly stamped. Before drawing any presumption under this section, it must be proved that the documents exist and have been in possession of the opposite party. 71 When a thirty years old registered gift deed was called for by issue of notice and was not produced, it was held the secondary evidence of the original deed can be given by production of a certified copy and it is admissible under Section 65-A, and a presumption also can be drawn that it was duly executed, attested and stamped under Section 89. In view of Sections 60(2) of the Registration Act , it can also be held that the executant admitted the execution of the deed before the Registrar. 72 When the plaintiff filed a suit for redemption of a usufructuary mortgage and it was not disputed that the record of proceedings wherein a compromise petition bearing a stamp of Re. 1 was filed, was destroyed in the Mutiny, and when the plaintiff wanted to rely on a certified copy of the compromise petition mentioning the mortgage deed the defendants raised an objection that the contract was not enforceable as the document was not properly stamped, it was held that it may be presumed that the officer before whom the original mortgage deed was presented satisfied himself that it was properly stamped, and so a presumption can be drawn under this section. 73 63 Kashibai v. Vinayak, AIR 1956 Bom 65. 64 Dilip Singh v. Dhaniram, AIR 1976 Bom 38. 65 Jang Bhadur v. Chandraj Singh, AIR 1971 Oudh 406. 66 Mirabai v. Jaisingh, AIR 1971 Raj 303. 67 Kashibai v. Yinayak, AIR 1956 Bom 65. 68 Budheram v. Hira, AIR 1953 HP 52. 69 Manilal Chhagenslal v. Surat Municipality, AIR 1978 Guj 193. 70 Md. Ayub v. Rahim Buksh, AIR 1922 Lah 401 (2); Ladha Ram v. Harichand, AIR 1938 Lah 90. 71 Ladharam v. Harichand, AIR 1938 Lah 90. 72 Rajendra Jha v. Tarkeshwar Prasad Agarwal, (1978) 57 Pat 426. 73 Ahmad Ali v. Syed Abid Husain, AIR 1916 PC 41.

2. BURDEN OF PROOF It is true that the onus of proving the fact that the document in question is in the possession or in the power of the opponent is initially on the party seeking to ask for permission to lead secondary evidence, but in the case of a registered mortgage, in the ordinary course, the deed of mortgage would be with the mortgagee and as soon as it is shown that the execution of the mortgage was admitted by the executant before the Sub-Registrar, the mortgagee or his heirs would be required to lead some evidence to show that the document was not with them nor was it in their power. 74

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There is no presumption under this section as to the contents of the document though under Section 114, it can be presumed that the contents are not favourable to the party who withholds the document. 74 Kashibai v. Yinayak, AIR 1956 Bom 65.

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CHAPTER V OF DOCUMENTARY EVIDENCE PRESUMPTIONS AS TO DOCUMENTS S. 90. Presumption as to documents thirty years old. Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person's handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested. Explanation.-- Documents are said to be in proper custody if they are in the place in which, and under the care of the person with whom they would naturally be; but no custody is improper if it is proved to have had a legitimate origin, or if the circumstances of the particular case are such as to render such an origin probable. This explanation applies also to Section 81. ILLUSTRATIONS 3a)   A has been in possession of landed property for a long time. He produces from his custody deeds relating to the land, showing his title to it. The custody is proper. 3b)   A produces deeds relating to landed property of which he is the mortgagee. The mortgagor is in possession. The custody is proper. 2c)   A , a connection of B , produces deeds relating to lands in B 's possession which were deposited with him by B for safe custody. The custody is proper. STATE AMENDMENT Uttar Pradesh.-- Amendments made by U.P. Act No. 24 of 1954, S. 2 and Sch. (w.e.f. 30-11-1954). In its application to the State of Uttar Pradesh, in Section 90-1i )   Renumber the existing section as sub-section (1) thereof, and 1ii )   For the words "thirty-years', substitute the words 'twenty years', and 1iii )   Insert the following as new sub-section (2):-"(2) Where any such document as is referred to in sub-section (1) was registered in accordance with the law relating to registration of documents and a duly certified copy thereof is produced, the Court may presume that the signature and every other part of such document which purports to be in the handwriting of any particular person, is in that person's handwriting, and in the case of a document executed or attested, that it was duly executed and attested by the person by whom it purports to have been executed or attested." Section 90A. New Section 90-A, inserted by U.P. Act No. 24 of 1954.

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"90-A. -13)   Where any registered document or duly certified copy thereof or any certified copy of a document which is a part of the record of a Court of Justice, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the original was executed by the person by whom it purports to have been executed. 12)   The presumption shall not be made in respect of any document which is the basis of a suit or of a defence or is relied upon in the plaint or written-statement. (The explanation to sub-section (1) of Section 90 will also apply to this section.) 1. PRINCIPLE

This section is based on the principle of necessity and convenience. The object of this section is not to make it too difficult for persons relying upon ancient documents to utilize those documents in proving their case. It is intended to do away with the insuperable difficulty of proving the handwriting, execution, and attestation of documents in the ordinary way after the lapse of many years. When a document is or purports to be more than thirty years old, if it be produced from what the court considers to be proper custody, it may be presumed (a) that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person's handwriting, and (b) that it was duly executed and attested by the person by whom it purports to be executed and attested. 75 It is not necessary that the signatures of the attesting witnesses or of the scribe be proved, for if everything was proved there would be no need to presume anything. 76 Documents of 30 years old produced from proper custody could be read as evidence without formal proof as a presumption can be drawn about its execution by the person by whom it purports to have been executed. 77 The principle underlying this section is that if a private document 30 years old or more, is produced from proper custody and is on its face free from suspicion the court may presume that it has been signed or written by the person whose signature it bears or in whose handwriting it purports to be and it has been duly attested and executed, if it purports so to be. In other words documents of 30 years old prove themselves. It is extremely difficult sometimes and impossible to prove the handwriting or signature or execution of ancient documents. It is therefore presumed that all persons acquainted with the execution of documents, if any, are dead and so the proof of those facts is dispensed with. Thus the presumption relates to the execution of the documents, i.e., signature, attestation etc., but not to the truth of its contents. 78 Presumption under Section 90 can be claimed and drawn at any stage including the appellate stage; belated claim of presumption will not by itself confer any right on the other party to claim opportunity to lead evidence in rebuttal. 79 Where the 30 years old sale deed revealed the names of the seller and the purchaser, the consideration for the same, names of witnesses and also the name of the scribe, it was held that the possession and ownership of the seller could be said to have been proved on the basis of the said document. 80 However, where the recitals in the adoption deed showed that the person, who was adopted, was not capable of being taken in adoption and the deed was not executed by the person giving the boy in adoption, no presumption under Section 90 could be raised to the effect that the adoption recorded in the deed was proved. 81 75 Excowree Singh Roy v. Kylash Chunder Mookerji, (1873) 21 WR 45; Hari Dhangar v. Biru Dasru, (1868) 5 BHC 135(ACJ) . Fifty-year old registered deed of gift; burden was on those who alleged that the deed was fraudulent. Fatima Bibi v. Irfana Begum, AIR 1980 All 394; Mohmedbhai Rasulbhai Malek v. Amirbhai Rahimbhai Malek, AIR 2001 Guj 37 (para 9).

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76 Raghubir Singh v. Thakurain Sukhraj Kaur, (1938) 14 Luck 393. 77 Liladhar v. Siaram, AIR 1976 All 213; Boddu Veeraiah v. Aripirala Venkata, AIR 1968 AP 276. 78 See Ramakrishna v. Gangadhar, AIR 1958 Ori 26. 79 Hazarilal v. Sh. Shyamlal, AIR 2007 (NOC) 323(Raj), approving 1968 Raj LW 308, (1971) 21 Raj 30 and 1972 Raj LW 133. 80 Hari Singh v. Durga Singh, AIR 2007 (NOC) 498(Raj) . Document 32 year old, presumption, Rohit Singh v. State of Bihar, (2006) 12 SCC 734, 745 (para 24); See also Desh Raj v. Bodh Raj, (2008) 2 SCC 186, 197-98 (para 28). 81 Gangavva v. Ningavva, AIR 2008 (NOC) 2214(Kar) : 2008 (4) AIR Kar R 176.

2. PURPORTING OR PROVED TO BE THIRTY YEARS OLD At least prima facie proof is necessary to show that the document is thirty years old, for raising the presumption under Section 90, though it is a rebuttable presumption. 82 Where the party opposing the document disproves it by convincing evidence, the Court is bound to call the party relying on it to prove it but when the opposite party fails to disprove it, its validity would be presumed. 83 It is not necessary in every case to prove that the document is 30 years old if intrinsically it purports to be that old. 84 Where the fact of execution is not in dispute in respect of deed more than 30 years, no evidence is necessary to prove its genuineness. 85 No presumption can be raised where the document is undated. 86 Where original will was in possession of the party but instead of filing the original one, he filed a certified copy of the same, it was held that in absence of original will on record no presumption could be drawn in respect of the document of will which was thirty years old. 87 A giftdeed more than 30 years old cannot be said to be manufactured anticipating birth of a male child and his name. 88 Keeping in view the nature of proof required for providing a Will, the provisions of Section 90 of the Evidence Act, 1872 have no application. 89 Where a mere look at the document shows that it is not free from suspicion though it purports to be more than 30 years old, the court must consider the evidence giving an opportunity to both parties before raising any presumption under Section 90; 90 but where the mortgage deed, more than thirty years old document was produced from proper custody of the mortgagee at the first available opportunity before the competent authority in support of his claim, the presumption under Section 90 of the Act was held to be drawn in favour of the mortgagee and mere denial or allegation of misrepresentation was held to be inadequate to rebut such presumption. 91 The rule embodied in Section 90 is based on the impossibility of obtaining living testimony to the signing or the handwriting of a document. It logically follows that the time should run from the date which the document bears whether it is a will or any other document. Therefore the period of presumption begins from the date of execution (in the case of Wills it runs not from the date of death of the testator on which date the will become operative). 92 The period of thirty years is to be reckoned not from the date upon which the document is filed in court, but from the date on which, it having been tendered in evidence, its genuineness or otherwise becomes the subject of proof. 1 The period of 30 years is to be commuted from the date of its execution to the date on which it was sought to be put into evidence. 2 A document dated August 3, 1888, was produced in Court of December 19, 1917, and its genuineness was not called in question up to August 12, 1918, when the first Court gave its judgment. It was only when the case came up to the appellate court that the defendants took objection that the document had not been proved. It was held that the period of thirty years should be reckoned from August 12, 1918, when the trial court gave its decision, and the due execution of the document could therefore be presumed. 3 In a case, the great-grandson of Mahatma Gandhi addressed a letter to the Chief Justice of India for securing the urn containing the ashes of his great-grand father lying in a safe deposit locker in the SBI, Cuttack so as to enable him to complete the last rites as per Hindu religious

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practice. The SBI confirmed its existence in the locker. The entry in safe deposit register showed that it was deposited by the then Secretary to the Chief Minister of Orissa on 29-11-1950. It was held that the entry in the safe deposit register cannot be doubted since it was an old entry of 1950 made in regular course of the business of the Bank. 4 In absence of any suspicious circumstances, the presumption that the document, executed 30 years before, proves itself, arises. 5 A 30 year old unregistered sale-deed, by invoking this section, cannot be read for collateral purpose of the possession of the plaintiff which was not otherwise proved. 6 Where the document purported to be more than 30 years old was unregistered and its attestors were not examined, Section 90 could not be invoked for the validity of its execution on the ground of the evidence of the person who had seen the document being executed. 7 Where the finding of fact was based on a document which was not more than 30 years old, the finding was held to be based on no evidence i.e. on no admissible evidence and was vitiated by error of law and could be interfered with. 8 82 P. Lakshmaiah v. Venkateswarlu, AIR 1977 AP 301. 83 Suryadevara Pullayya v. Suryadevara Satyanarayana, 2001 AIHC 2807 (para 17) (AP). See also Kacha Kanti Seva Samity v. Sri Kacha Kanti Devi, (2003) 4 SCC 665 (para 11) : AIR 2004 SC 608. 84 Ayub v. Bhanwarchand, ILR 1971 Raj 30. 85 Gulab v. Md. Ismail, AIR 1916 All 205. See also Ramjiban Mahato v. Ganesh Prasad Malavya, 2000 AIHC 3016 (para 20) (Pat). 86 Veerbhadrayya v. Ramchandra, AIR 1923 Mad 674. 87 Sheshrao M. Kuratkar v. Keshavrao M. Kuratkar, AIR 2006 Bom 33, 36 (para 11). 88 Sakti Ranjan Maity v. State of W.B., AIR 2009 (NOC) 2137(Cal) . 89 Bharpur Singh v. Shamsher Singh, (2009) 3 SCC 687, 698 (para 19) : AIR 2009 SC 1766. 90 Kapurchand v. Lalchand, AIR 1975 Raj 178 following, Mansukh v. Trikamsbhai, AIR 1930 Bom 39; Shafiq-un-Nisa v. Shaban Ali Khan, ILR 26 All 581(PC) . 91 Sandha Singh v. Amrik Singh, AIR 2006 P & H 9, 13, 14 (para 13 & 15). See also Basanti v. Lajwanti, AIR 2007 (NOC) 2323(P & H) ; Uchchap Singh v. Govind Singh, AIR 2007 (NOC) 1861(Ut.) ; Kandadai Tirumalacharya v. Kandadai Venkatachari, AIR 2008 (NOC) 2896(AP) . 92 Sarachandra Mondal v. Panchanann Mondal, AIR 1953 Cal 471; Babu Nandan v. Board of Revenue, AIR 1972 All 406. 1 Minu Sirkar v. Shedoy Nath Roy, (1897) 5 CLR 135; Surendra Krishna Roy v. Mirza, AIR 1936 PC 15 : Mahammad, (1935) 53 IA 85 : (1936) 38 Bom LR 330; Bhanwaria v. Ramratan, (1953) 4 Raj 145; Konda Reddi v. Pichireddy, AIR 1925 Mad 184; Anika Bi, Bhopal v. Anis Ahmed Siddiqui, Bhopal, AIR 2005 MP 64, 65 (para 10). 2 Kesarapu Manikyalu v. Venna Perumallayya, 2000 AIHC 590 (para 8) (AP) : AIR 2000 NOC 20(AP) . 3 Ladha Singh v. Hukam Devi, (1923) 4 Lah 233 : AIR 1924 Lah 145. See also Lakhi Baruah v. Padma Kanta Kalita, AIR 1996 SC 1253 (para 15); Kartar Singh v. Collector, Patiala, 1996 AIHC 1538 (para 5) (P&H); Kesarapu Manikyalu v. Venna Perumallayya, 2000 AIHC 590 (paras 4 and 8) (AP) : AIR 2000 NOC 20(AP) . 4 Tushar Arun Gandhi v. State of Orissa, (1997) 1 SCC 1. 5 Ramesh v. Laxmamma, 1999 AIHC 2090 (paras 21 and 22) (AP). 6 Mohinuddin v. President, Municipal Committee, Khargone, AIR 1993 MP 5 (paras 13-15 and 18). 7 Dhandapani Chettiar v. Govindam, 1999 AIHC 2935 (para 19) (Mad). See also Roshanbi Shaikaji Attar v. Usmansab Shaikaji Attar, AIR 2006 (NOC) 1156(Kant) : 2006 (4) AIR Kar R 143. 8 State v. Veeranagouda Mallikarjunagouda, AIR Kant 361 (para 12).

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3. PROPER CUSTODY--EXPLANATION "The proper custody of a document means its deposit with a person and in a place, where, if authentic, it might naturally and reasonably be expected to be found". 9 Where more than 30 year old document, bearing signatures of the executants and not looking ex facie suspicious was produced by the son of one of the executants at the first instance, the custody being proper, presumption could be drawn in favour of the document. 10 'Proper custody' means the custody of any person so connected with the deed that his possession of it does not excite any suspicion or fraud. 11 It is not necessary that the document should be found in the best and the most proper place of deposit. The section insists only on a satisfactory account of the origin of the custody, and not on the history of the continuance. Possibly the origin of the custody was alone regarded as material because it is intelligible that ancient documents may be overlooked and left undisturbed notwithstanding a transfer of old, or creation of new, interests. 12 In illustrations (a) and (b) the documents are produced from their natural place of custody, in (c) A's custody is proper under the circumstances. The provisions of the section read with the Explanation insist on a satisfactory account of the origin of the possession being given by the party relying upon the documents. The custody, might not be in the strictest sense legal custody, but, whether it originated in right or wrong, the origin must be explained. The court must, therefore, examine the surrounding circumstances tending to establish the connection of the party producing the document with the person with whom the documents should naturally have been. 13 It was held by the Bombay High Court that proper custody is custody proved to have had a legitimate origin or an origin the legitimacy of which the circumstances of the case render probable. 14 The presumption being based on the rule of expediency, unless the surrounding circumstances satisfied the court that the document was produced from proper custody it would be unsound to admit it. 15 Where a party cannot properly explain how a document produced by him came into his possession, the custody of the document cannot be said to be clearly proved. 16 When a person stated on oath that the document had been entrusted to him by the vendee of the property for the purpose of a certain case in court, it was held that the custody of such document cannot be said to be improper, and the court can raise a presumption as to its genuineness under Section 90. 17 Where documents are thirty years old and which are produced from proper custody, the presumption goes in favour of the contents of the documents unless it is rebutted by adducing satisfactory evidence; 18 but mere tender of the document in evidence cannot be regarded as proof of proper custody. 19 Where a Will was executed more than 30 years before bequeathing certain property to the adopted daughter whose name was accordingly entered in the revenue records and the opposite party, alleging that the Will was concocted, failed to prove any suspicious circumstance, it was held that presumption under this section could be invoked to prove the Will. 20 The factum of proper custody is not a matter for presumption but ought to be satisfactorily proved by adducing evidence aliunde to show that the document was produced from proper custody or by showing that the person who produced it was the depository of the document in question. 21 The origin of the custody has to be explained by the person producing the document if he happens to be a person who is not normally supposed to have custody of the document. It is enough if the person is so connected with it that he may reasonably be supposed to be in possession of it. 22 Where an order under the Rent Control Act fixing fair rent was produced by A and the document is thirty years old and purports to have been sent to A's father it was held that A's custody has to be considered proper and a presumption can be raised under Section 90. 23 Where a private document (Anumathipatra ) was deposited a few days after the death of the executant in the collector's office and 54 years later it was produced from that office it was held that it was from proper custody. 24 Where thirty-year old document which is a compromise petition containing the thumb mark and signatures of the parties to the petition, the scribe and attestors is produced from the record room, where it has been kept as a part of the decree, the compromise petition can be taken as genuine and duly executed under Section 90 as it is produced from proper custody. 25 A sixty year old properly

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executed will produced by the only son of the testator was presumed to be genuine as it came from lawful custody. No separate proof was required to prove its execution. 26 Where a private partition chitta more than 30 years old was produced from the record keeper through an officer of the collectorate, it was held that the officer was not the proper custodian of partition papers of private individuals and no presumption can be drawn. 27 The document of marriage agreement of more than 30 years old between two persons who had died before filing of the suit, was produced at appellate stage by the plaintiff. The plaintiff failed to prove that the said document was produced from proper custody. It was held that no reliance could be placed on such document. 28 It must be shown that such a document was filed for adjudication of some matters in such a court.

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The rule is to compel the party who relies upon a document to show that it comes from proper custody in which it would naturally be expected to be kept when the concerned party did not adduce evidence that he was the depository of the document (will) in question, Section 90 would not be attracted. 30 It is for the Court to decide in each case whether the custody from which the document is produced is or is not proper. 31 When the old documents are produced as instance of particular customs and not as a foundation of title, such documents may be admitted in evidence irrespective of the fact whether they come from proper custody or not. 32 9 S TEPHEN ' S Digest, 7th Edn. Art. 88. 10 Parkash Chand v. Hans Raj, AIR 1994 HP 144 (paras 12, 14 and 15). 11 Doedem Neale v. Samples, (1838) 8 Ad & El 151. 12 Sharfuddin v. Govind, (1902) 5 Bom LR 144 : (1902) 27 Bom 452. 13 Rudragouda v. Basangouda, (1937) 40 Bom LR 202 : AIR 1938 Bom 257. 14 Sharfuddin v. Govind, ILR 27 Bom 452. 15 Rudragouda v. Basangouda, (1937) 40 Bom LR 202 : AIR 1938 Bom 257. Where the Court chooses to raise the presumption, no further proof of the fact is necessary under Section 69; Mahendra Nath Surul v. Natai Charan Ghosh, (1943) 1 Cal 392 : AIR 1944 Cal 241. 16 Manmath Nath v. Anat Bandhu, AIR 1919 Cal 482. 17 Poonamchand v. Motilal, AIR 1955 Raj 179. 18 T. Sesha Reddy v. Managing Committee, Jama Masjid, 2002 AIHC 1811, 1820 (para 48) (AP). See also Manki Mali v. Radhika Devi, 2004 AIHC 4683, 4688 (para 16) (Jhar); Golstone Exports Pvt. Ltd. v. Cyrus Investment Pvt. Ltd., 2005 AIHC 1587, 1604 (para 59) (AP). 19 Shobha Satyanarayan Birla v. Janabai Parshuram Pawar, 2004 AIHC 1653, 1655 (para 8) (Bom) : 2004 (3) Bom CR 557 : 2004 (2) Mah LJ 1082 : 2004 (3) Bom LR 36 : 2004 (2) All MR 751. 20 Sulochana Tai v. Sunder, AIR 2005 Kant 226, 228 (para 8). 21 Ravjappa v. Nilkanta Rao, AIR 1962 Mys 53; C. Audilakshmamma v. A. Ramarao, AIR 1973 AP 149; Ramaswami Goundan v. Subbaraya Goundan, AIR 1948 Mad 388. 22 (1971) 1 APLJ 350. See also Harendra Rai v. Chandrawati Devi, AIR 2007 Pat 120, 127 (para 47). 23 M.N. Soi v. New Delhi Municipal Committee, AIR 1975 Del 236(FB) . 24 Rajendra Prasad v. Gopal Prasad, AIR 1925 Pat 442. 25 Savitri Devi v. Bhaskar, AIR 1972 Ori 148. See also Venkatachala Moopar v. Balsubramanian, 2001 AIHC 4386 (para 15) (Mad). 26 Acho Dominic v. Xavier, 2000 AIHC 2210 (paras 7 and 8) (Ker). 27 Purna Chandra v. Radhika, AIR 1926 Cal 370.

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28 Chitru Devi v. Ram Dei, AIR 2002 HP 59, 64. 29 Sri Prasad v. Court of Wards, Balarampur, AIR 1937 Oudh 194. 30 Seshappa Chathra v. Govinda Chathra, (1980) 2 Kant 930. 31 Imam Din v. Natha Singh, AIR 1932 Lah 43. 32 Dasondhi v. Milkhiram, AIR 1939 Lah 152.

4. DOCUMENT : SEE COMMENTARY UNDER Section 3 The section also applies to accounts 33 and to books of account 34 as well as to all other documents public or private. However, it was held by the Supreme Court that loose papers of accounts cannot have the same probative force of account books which are regularly kept in the course of business. 35 33 Foster v. Plumbers Co., (1900) 44 SJ 211. 34 Durga Shankar v. Lala Ganga Sahai, 1932 All 500. 35 Ganesh Prasad v. Narendra Nath Sen, AIR 1953 SC 431; see also Province of Bengal v. Ramlal Oswal, AIR 1942 Cal 308.

5. PRESUMPTION IS AS TO SIGNATURE IN A DOCUMENT Where thesignature of a particular person is not in question or sought to be established, Section 90 does not apply. 36 The presumption under Section 90 applies only to signatures and handwriting. 37 The presumption applies only if the document in question purports to have been 'signed' by somebody or if it purports to be in the handwriting of somebody. 38 Where a document was signed by one H for D, it was held the presumption will be only in respect of the signature of H and not in respect of execution of the document by D. 39 The presumption permitted by this section in the case of a document purporting to be thirty years old, that it was duly executed by the party by whom it is purported to be executed, includes the presumption that when the signature of the executant purports to have been made by the pen of the scribe, the latter was duly authorised to sign for him. 40 The Presumption under Section 90 can be raised only if the document itself shows in whose handwriting the contents are. This section does not lay down that there is any presumption regarding an anonymous document, the writer of which is not known. Where an ancient document was not signed by the person who wrote it and there was no material upon which one can say that a particular person had written it and there was only a general statement that the document was kept in the family records, it was held that the document cannot be taken to be proved and no presumption sender this section can be drawn. 41 Signature includes a mark, a mark being a sort of symbolic writing. The presumption under Section 90 when it arises in favour of a party extends to the thumb marks put on the document indicating that the document was signed by the executant by way of symbolic writing which has to be taken as a signature in the absence of proof to the contrary. 42 Where at the usual place of executant's signature the name of the illiterate executant was written along with the words 'Nisani' and there is no mark or thumb mark impression of the executant; it was held that the document cannot be said to have been executed by him. 43 The section makes no provision for any presumption in regard to seals nor can a seal be regarded as a signature within the definition of the word contained in the General Clauses Act . 44 No presumption can be drawn when the document does not bear any signature but only a seal, as the seal does not amount to a signature. 45 It was held that in the case of imaginary persons as in the case of Inam

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grants there can be no question of signature or handwriting and the presumption under Section 90 would not apply. 46 A bare perusal of Sections 90 of the Indian Evidence Act would clearly go to show that in terms thereof merely a presumption is raised to the effect that signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person's handwriting and in case a document is executed or attested, the same was executed and attested by the persons by whom it purports to be executed and attested. The section nowhere provides that in terms thereof the authenticity of the recitals contained in any document is presumed to be correct. The High Court, therefore, committed a manifest error of law in interpreting the provision ofSection 90 and, thus, fell into an error in formulating the substantial question of law. As the purported substantial question of law was formulated on a wrong reading of Section 90 the impugned judgment cannot be sustained. Even if a formal execution of a document is proved, the same by itself cannot lead to a presumption that the recitals contained therein are also correct. The mere execution of a document, in other words, does not lead to the conclusion that the recitals made therein are correct, and subject to the statutory provisions contained in Sections 91 and 92 of the Evidence Act, it is open to the parties to raise a plea contra thereto. 47 36 Ganesh Prasad v. Narendra Nath Sen, AIR 1953 SC 431. 37 Bhagirathmal Kanodia v. Bibhuti Bhushan, AIR 1942 Cal 309, but not to the contents Mohinuddin v. President Municipal Committee, AIR 1993 MP 5. 38 Maheshwar Naik v. Sailendra Nayak, AIR 1951 Ori 327. 39 Kalika Prasad v. Jhenjho Kuer, AIR 1964 Pat 241; Maheshwar Naik Oswal v. Sailendra Narayan, 1951 Ori 327. 40 Haji Sheikh Bodha v. Sukhram Singh, AIR 1925 All 1 : (1924) 47 All 31 FB; Balkaran Singh v. Dulari Bai, AIR 1927 All 231 : (1926) 49 All 55, contra, Mohammad Azim v. Special Manager, Court of Wards, Balrampur, (1936) 12 Luck 98. 41 Kanhiyalal v. Jamna Lal, AIR 1950 Raj 47; See also Chandukutty Nambiar v. Rama Varma Raja, AIR 1939 Mad 926; Venkat Rao v. Venkateswara Rao, AIR 1956 Andhra 1; Nagaraja Rao v. Koothappan, AIR 1941 Mad 602; Kotiswar v. Paresh, AIR 1956 Cal 205 ; Naina Pillai v. Ramanathan, 33 MLJ 84; Amrita v. Sripat, 1962 All 111; Province of Bengal v. Ramlal Oswal, AIR 1942 Cal 308. 42 Sahilendra Nath Mitra v. Girijabhushan, AIR 1931 Cal 596 : ILR 58 Cal 686. 43 Durga Prosad v. Mario Galstaun, AIR 1955 Cal 194; Naina Pillai v. Ramanathan, AIR 1918 Mad 932. 44 Special Manager, Court of Wards, Balrampur v. Tirbeni Prasad, AIR 1935 Oudh 289 : (1935) 11 Luck 31; Sri Prasad v. Special Manager, Court of Wards, Balrampur Estate, (1936) 12 Luck 400. 45 Maheshwar Naik v. Sailendra Narayan, AIR 1951 Ori 327 : ILR (1949) 1 Cuttack, 312; Inder Singh v. Board of Revenue, (1962) 12 Raj 83; Kotishwar Mukherjee v. Paresh Nath Mukherjee, AIR 1956 Cal 205; Hiralal v. Parsattamdas, AIR 1974 Guj 74. 46 Mansoorali v. Taiubali, AIR 1935 Nag 156. 47 Gangamma v. Shivalingaiah, (2005) 9 SCC 359, 360 (paras 7 and 8).

6. PRESUMPTION REGARDING WILLS Presumption under this section extends to testamentary documents. A will purporting to be thirty years old and produced from proper custody may be presumed to have been duly attested and executed. The court must, however, act with extreme caution and utmost circumspection. 48 The presumption under Section 90 can be drawn regarding actual execution and attestation of the will more than 30 years old and produced from proper custody. 49 Section 90 is applicable to wills produced in courts of probate and it is permissible to draw presumption that a will coming from proper custody and more than 30 years old was duly executed and attested. 50 Where a will was executed in 1917 51 a presumption of ancient document under Section 90 was held available in the year 1950.

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In a case based upon a will, the propounder or the plaintiff must plead that the document was properly executed and duly attested and was the last will of the testator. Where the plaintiff has not pleaded that the will was duly attested, there will be no question of presuming attestation under Section 90. Assuming that the presumption could be made for its valid attestation, the presumption could not extend to the will being the last will of the testator. 52 Where a registered will over thirty years old was produced from proper custody it was held that it should be presumed as a valid and genuine document. Where all parties to the will except the beneficiary are dead and the signature of the scribe has been identified by his fellow document writer who was acquainted with the signature, it cannot be said that the will has not been proved, in the absence of evidence in rebuttal. 53 Where a will more than thirty years old was produced from proper custody it was held that the presumption that it was duly executed and attested, which could be drawn under Sections 90 of the Indian Evidence Act , extended to the testamentary capacity of the testator. In the absence of any evidence as to the state of his mind, proof that he had executed a will rational in character in the presence of witnesses must lead to a presumption that he was of sound disposing mind. This presumption, which can be justified under the express provisions ofSection 90 of the Evidence Act, since a will cannot be said to be "duly" executed by a person who was not competent to execute it, is fortified under the provisions of Section 114 of the Evidence Act, since it is likely that a man who performs a solemn and rational act in the presence of witnesses is sane and understands what he is about. 54 Where a Will was 30 years old, but the testator lived for 17 years after execution of the Will and the Court observed that 17 years was sufficient to change the mind of the testator and there being no pleading in the written statement that it was his last Will, it was held that presumption under Section 90 of the Evidence Act was not available and that the Will excluding all the male natural heirs and widows of the testator was unnatural. 55 48 Dhanapal v. Govindaraja, AIR 1961 Mad 262. The period of thirty years will run from the date of the will and not from the date of death of the testator. Sarat Chandra Mondal v. Panchanan Mondal, (1955) 1 Cal 55; Mahendra Nath Surul v. Netai Charan Ghosh, AIR 1944 Cal 241 : (1943) 1 Cal 392. 49 Munnalal v. Kashibai, AIR 1947 PC 15; Kirpal Singh v. Aas Kaur, AIR 1997 P&H 240; Haradhan Mahatha v. Dukhu Mahatha, AIR 1993 Pat 129 (paras 10, 12 and 15); Kotayya v. Yardhamma, AIR 1930 Mad 744; Dhanpal v. Govindaraja, AIR 1961 Mad 262. 50 Silvabai Celertine v. Josephine Naronha Bai, AIR 1956 Mad 566; Mahendra Nath v. Netai Charan, AIR 1944 Cal 241. 51 Labany Perva Guha v. Balai Chandra Mukerjee, (1970) 2 Cal 241. 52 Rangu v. Rambha, AIR 1967 Bom 382. 53 Radha Hota v. Dutika Satpathy, (1979) 2 Cut 130. 54 Munnalal v. Kashibai, AIR 1947 PC 15; Yenkata Rama Rao v. Bhaskararao, AIR 1962 AP 29; Mahendra Nath v. Netacharan, AIR 1944 Cal 241; Govinda Chandra v. Pulin Behari, AIR 1927 Cal 102; Rameshwar Prasad v. Krishnan, AIR 1969 MP 4; Dharanappa Adhikari v. Dharamasam Rajya, ILR 1967 Mys 276; Motilal v. Saradar Mal, AIR 1976 Raj 40. 55 H.N Pandmanabha Hegde v. Suneeta J. Rao, AIR 2007 (NOC) 1066(Ker) .

7. COPIES The presumption under this section can be raised only with regard to the original document if produced before the court. It does not apply to a certified copy when the original document is not before the court. The section requires the production to the Court of the particular document in regard to which the court may make the statutory presumption. In the instant case, the document in question was a certified copy and not the original of the sale deed. It was held that no presumption could be drawn on the basis thereof. 56

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In Basant Singh v. Brij Raj Saran Singh 57 an appeal arising from the decision in Brij Raj Saran Singh v. Basant Singh 58 it was held by the Privy Council that if the document produced is a copy and was admitted under Section 65 as secondary evidence, and if the document is over thirty years old and produced from proper custody, then the signatures authenticating the copy may be presumed to be genuine, but the production of the copy is not sufficient to justify the presumption of the execution of the original under Section 90. The Privy Council overruled earlier decisions to the contrary. 59 The Supreme Court observed "The presumption enacted in Section 90 can be raised with reference to original documents and not to copies thereof." 60 Further it was held that if the document purports to be signed by the agent of the person against whom the presumption is sought to be raised and there is no proof that he was an agent, Section 90 does not authorise the raising of a presumption as to the existence of authority on the part of the agent to represent that person. 61 The above decisions of the Privy Council and the Supreme Court were followed in 62 Kalidindi Venkata Subbaraju . The court held that the production of a copy does not warrant the presumptions of due execution of the original. Supreme Court, however, came to the conclusion that apart from such presumption there was evidence from which the High Court could conclude that the will was duly executed and attested and that the executant was in a sound disposing state of mind. They, therefore, observed that the effect of the certified copy of the will having been rightly admitted, was as if the contents of the will were before the court. In support of this, they relied on the decision of the Privy Council in Seethayya v. P. Subrahmanya Somayajulu 63 . In that case the original grant which was 250 years old was lost. But a copy of it was produced from proper custody. It bore the endorsement of the predecessors of the respondents. "Originals have been retained by us and copies have been filed in 1858". The Privy Council held the copy was admissible as secondary evidence of the terms of the grant under Section 65 of the Act and the said endorsement authenticating the copy was evidence as a statement by a deceased person in a document relating to a relevant fact and also as an admission of the respondent's predecessors. The Privy Council also held that the copy being admissible as secondary evidence of the terms of the original grant, the court could proceed upon the footing that the terms of the said grant were before it. 64 56 Narayan Singh v. Kishanlal, AIR 2007 (NOC) 1118(MP) . See also Irshad Ali v. Viresh Agarwal, AIR 2009 (NOC) 197(All) : 2008 (5) ALJ 537. 57 AIR 1935 PC 132 approved by the Supreme Court in Mahant Sital Das v. Santram, AIR 1954 SC 606 and Harihar Prasad v. Deonarain, AIR 1956 SC 305; see also Shamsunnissa Bibi v. Sh. Ali Asghar, AIR 1936 Oudh 87; Gopal Das v. Thakurji, AIR 1936 All 422; Amjad Hussain v. Raisunnisa, AIR 1941 Oudh 433; Sangamlal v. Gangadin, AIR 1946 All 389; Mumtaz Hussain v. Babu Bramhanand, AIR 1936 All 298; Venkataratnam v. G. Sitaramayya, AIR 1950 Mad 634; Motishah v. Abdul Gaffar Khan, AIR 1956 Nag 38; Kashibai Martand v. Vinayak Ganesh, AIR 1956 Bom 65; Mehatab Singh Gurbachan Singh v. Amrik Singh, AIR 1957 Punj 146; Jhunkaribahu Alias Kethrawati v. Phool Chand, AIR 1958 MP 261; Ramanna v. Sambamoorthy, AIR 1961 AP 361; Hansraj v. Banarasi Lal, AIR 1937 Lah 920; Sevugan Chettiar v. Raghunatha Dorasingam, AIR 1940 Mad 273; Rajeswari v. Varalakshmamma, AIR 1964 AP 284; Nagappa Jadiyappa v. Dy. Commissioner Belgaum; Md. Ahmed Amalia v. Nirmal Chandra Roy, AIR 1978 Cal 312; Acharu v. Rappai, AIR 1979 Ker 34; (entry in marriage register an ancient one) Kalu Nimbaji Shinge v. Bapurao, AIR 1950 Nag 6; Sardaram v. Sundarlal Baldev Prasad, AIR 1968 All 363; Vasa Thulasi Rao v. Peetea Pedda Anjanayya (1967) 1 WR 176; Jutha Prinji v. Faria, AIR 1952 Kutchi 67. 58 AIR 1929 All 561. 59 Khetter Chunder Mookerjee v. Khetter Paul Sreeterutno, ILR 5 Cal 886; Ishri Prasad Singh v. Lalli Jas Kunwar, ILR 22 All 294; Dwarka Singh v. Ramanand, AIR 1919 All 232 : ILR 41 All 592; Gopinath v. Mothi Chiwa, AIR 1934 Nag 67; overruled. 60 Harihar Prasad v. Deonarain, AIR 1956 SC 305; Harihar Prasad v. Must. of Munshi Nath Prasad, 1956 SCR 1 relying on Basant Singh v. Brij Raj, AIR 1935 PC 132. 61 Mahont Sital Das v. Sant Ram, AIR 1954 SC 606 followed; Bibo Devi v. Rattan Lal, (1972) 2 Del 699; Kamalakshy v. Madhavi Amma, 1980 Ker LT 493(Ker) ; Abdul Kadir v. Hazi Sayed Mohammed, (1963) 1 Mys LJ 158. 62 AIR 1968 SC 947. 63 56 IA 146 : AIR 1929 PC 115 on appeal from ILR 46 Mad 92.

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64 See also Koteshwar v. Parashnath, (1956) Cal 205; Hariharpal v. Sudhir Kumar Pal, ILR (1988) Cal 687; Vadlur Lakshmireddy v. Vadlur Subbareddy, ILR 1963 AP 1085.

8. CERTIFIED COPIES Where the plaintiff in a suit for redemption of mortgage relied on a certified copy of a statement made in the mutation proceedings for the purpose of showing the acknowledgement of the mortgage, and the original was not produced for examination, it was held by the Supreme Court that the certified copy could not serve as an acknowledgement of mortgage, and no presumption can be extended to certified copies under Section 9065 unless foundation is laid for admission of secondary evidence under Section 65. 66 Where no foundation was laid to adduce the secondary evidence of i.e. the certified copy of the sale deed executed more than 30 years before, its genuineness could not be presumed under this section. 67 An entry in the register of a document writer as to the contents of the will was held to be a summarised copy of the will and howsoever old the register may be the presumption of the execution or attestation of the alleged document cannot arise. 68 It was held that when the original Church Register was not produced and no explanation was offered for its non-production, the copies of the entries therein are not admissible. 69 In the case of a certified copy of a registered document, Sections 60(2) of a Registration Act is only confined to the endorsements made by the Registering Officer under Section 58 of that Act which provides for raising a statutory presumption or inference in respect of the said endorsements alone. UnderSection 90, the presumption cannot be made as to the signature, handwriting, execution or attestation of the original document. Though the signature authenticating the copy may be presumed to be genuine under Section 90, the party who relies on it has to prove the execution of the original document, and also attestation if the document requires attestation under law. 70 Where the certified copy shows that the original contained an endorsement by the Sub-Registrar under Section 60of the Registration Act , it was held that it can be taken as the evidence of facts that the original document contained the testator's or executant's signature. 71 Where the original was lost and if it is so proved, the certified copy is admissible to prove the contents of the original but not the execution of the original. 72 In the case of registration copies of documents what is applicable is not Section 90but Sections 57(5) of the Registration Act .73 Where the document was a registered one, though mere registration may not by itself constitute sufficient proof of the execution of the document, in view of Sections 57 and 60 of the Registration Act , the certified copy and the certificate issued by the Registrar would constitute sufficient evidence to prove the contents of the document and also, to some extent, an evidence of execution of the document. It may be that proof of admission of execution before the Registrar may not satisfy completely the requirements of Section 67 of the Evidence Act which requires that the signature of the executant must be proved to be in his handwriting. If apart from the admission incorporated in the certificate of the registrar under Sections 60(2) of the Registration Act , there is other evidence to corroborate the admission, the execution of the document can be considered as proved. 74 Where copy of the document recorded in the Volume-I for official purpose from which certified copy was issued by Sub-Registrar, the Volume-I and certified copies issued therefrom having the same standard of secondary evidence and the entry recorded in Volume-I and certified copy issued therefrom, though thirty year old, presumption under Section 90 as to genuineness and correctness of its contents could not be drawn. 75 When the document purporting to be more than 30 years old is a registered one and it is produced from proper custody, the presumption under Section 90 can be drawn by the court, as to the purported signatures of the executants and execution by them and its due attestation. 76

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Where a registered gift deed of immovable property of about 50 years old was produced in evidence, it was held, it was a valid document duly registered and the burden is on the person challenging its validity to prove that it was a fraud on registration as a non-existent Jamun tree was included therein only to attract the jurisdiction of the Sub-Registrar. This is not a case of a presumption of due execution or attestation or of the signature of the executant and does not fall within Section 90. The reference to Section 90 in the head note is misleading as no reference to that section is made in the judgment. 77 Where uncertified copies of ancient village accounts not kept in proper custody are produced, no presumption can be raised. 78 Where an acknowledgement made in a deposition during the settlement enquiry was produced from proper custody and it is thirty years old, presumption can be drawn. 79 Section 90 does not involve any presumption that the contents of the document are true or that it had been act ed upon as such facts have to be proved by adducing proper and relevant evidence. 80 Though they may constitute an estoppel against the executant and will be relevant against him under Sections 17, 18, 21 and 32(2). 81 Section 90 does not deal with any presumption about the legal effect of a document. Where a Hindu widow alienated the property and execution of the document was admitted by her, it was held no assistance can be derived from Section 90 as to the question whether she alienated only her life estate or made an absolute alienation. 82 When all those who knew about an alienation made by a limited owner 39 years ago and could explain the circumstances are dead, it was held that the presumption arises that the alienation was for legal necessity. This presumption is not one coming under Section 90 and it is submitted that reference to Section 90 in the head note of the report is misleading, when there is no reference at all to that section in the judgement. 83 Where a person executed a document on behalf of another, the authority of the executant to execute the document cannot be presumed under this section 84 ; but when a grant has been in force for a long period unchallenged by the affected persons, the requisite authority to execute can be presumed. 85 Where a person claiming to be Guzaredar claiming maintenance allowance under Section 10 Bhopal Abolition of Jagirs and Land Reformation Act and Gujaredar claimed to be in possession of a certain village in lieu of maintenance till the date of conversion of Jagirs into Mansab and produced documents over 30 years old from proper custody, it was held that the evidence coupled with the documents would give rise to the presumption under Section 90 and it was sufficient to prove that he was Guzaredar and was in possession of the village in lieu of maintenance. 86 There can, however, be no presumption as to who the person who executed the document was and what authority he had to execute the document, 87 and whether he had the requisite authority, 88 or whether the contents of the document are true, 89 or that the document has the legal effect that it purports to have. 90 When a document is tendered in proof of relationship the document must be relevant under Section 32(5), before raising the presumption under Section 90. 91 Where a confession contained a certificate of a memorandum at its foot as required by Section 164,Cr. P.C., it was held that a presumption arises underSection 90 that all the necessary formalities have been duly complied with and the statements contained in the memorandum are true and correct. 92 It is submitted that the reference to Section 90 for raising the presumption that all formalities were complied with is not correct. The conclusion may however be justified under Section 114 of the Act . 65 Shivlal v. Chetram, AIR 1971 SC 2342; See also Tilak Chand Kureel v. Bhim Raj, (1969) 3 SCC 367. 66 Lakhi Baruah v. Padma Kanta Kalita, AIR 1996 SC 1253 (para 17). See also Dayamathi Bai v. K.M. Shaffi, AIR 2004 SC 4082 (paras 13 and 15) : (2004) 7 SCC 107; Khudawand Haijul Qaiyoom v. Sabir, AIR 2007 (NOC) 2610 : 2007 (5) ALJ 515.

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67 Budavant Subraya Palekar v. Babu Vajra Chandravarkar, AIR 2004 Kant 105, 108 (para 10). On the point the High Court discussed various decisions of the Apex Court : 2004 AIR Kant HCR 96 : 2004 (24) All Ind Cas 353 : 2004 (4) ICC 494. See also Manjoor Ali v. Kismat Ali, AIR 2004 All 395, 398 (paras 10 to 12) : 2004 All LJ 3643 : 2004 (2) All CJ 1237 : 2005 (1) Rec Civ R 765, following, Lakhi Baruah v. Padma Kanta Kalita, AIR 1996 SC 1253 : (1996) 8 SCC 357. 68 Bibo Devi v. Rattan Lal, (1972) 2 Del 699. 69 Alicia v. Percival Felix Pinto, (1967) 2 Mys LJ 210. 70 Kashibai Martand v. Vinayak Gomesh, 1956 Bom 65; Pandappa Mahabingappa v. Shivalingappa Murtcoppa, AIR 1946 Bom 193; Md. Saheb v. Kamal, AIR 1953 Bom 338; Putti Lakshmayya v. Garlapati Thirupatamma, AIR 1958 AP 720; Vadhur Lakshmi Reddy v. Vadlur Subba Reddy, AIR 1963 AP 1085; Venkata Ratnam v. Sitaramayya, AIR 1950 Mad 634; Basant Singh v. Brij Raj Saran Singh, AIR 1935 PC 132; Sitaldas v. Santaram, AIR 1954 SC 606; Jhunkari Bahu v. Phoolchand, AIR 1958 MP 261; Mehtab Singh v. Amriksingh, AIR 1957 Puj 146; Subudhi Padhan v. Raghu Buwan, AIR 1962 Ori 40; Ramakrishna v. Gangadhar, AIR 1958 Ori 26; Ram Kishun v. Kausal Kishore, AIR 1958 Pat 294; Harihar Prasad v. Deonarain Prasad, AIR 1956 SC 305; Manilal Chhaganlal v. Surat Municipality, AIR 1978 Guj 193; Thulasirao v. P. Pedda Anjanayya, (1967) 1 An WR 176. 71 Gopaldas v. Thakurjee, AIR 1943 PC 83; Putti Kshmayya v. Galapati Tirupathamma, AIR 1958 AP 720; Hulri v. Mohanlal relied on, (1960) 10 Raj 94; Indernath Modi v. Nand Ram, (1955) 5 Raj 955; Tej Singh v. Hastimal, AIR 1972 Raj 191. 72 Kalu Nirbaji v. Bapurao Chinkaji, AIR 1950 Nag 6; Venkata Ratnam v. Sitaramayya, AIR 1950 Mad 634; Motishah v. Abdul Gaffar, AIR 1956 Nag 38; Amulya Charan Maity v. Satyeswar Maity, (1966) 1 Cal 395. 73 Kanuppanna v. Kolandaswamy, AIR 1954 Mad 486; Shudasama Khodha Sortansan v. Chudasant Takha Tsang, AIR 1922 Bank 477; Sabiman v. Hakim Mukhdum Bux, AIR 1928 All 394. 74 Rajeswari v. Varalaxmamma, AIR 1964 AP 284; relying on Ihtishan Ali v. Jamna Prasad, AIR 1922 PC 56; Gopaldas v. Thakurji, AIR 1943 PC 83; Kalu Nimbaji v. Bapurao Chinkaji, AIR 1950 Nag 6; Indernath Modi v. Nandram, AIR 1957 Raj 231; Piara v. Fattur, AIR 1929 Lah 711. 75 Budavant Sabraya Palekar v. Babu Vajra Chandravarkar, AIR 2004 Kant 105, 107 (para 7) : 2004 AIR Kant HCR 96 : 2004 (24) All Ind Cas 353 : 2004 (4) ICC 494. 76 Tej Singh v. Hastimal, AIR 1972 Raj 191; Rajendrajha Prasad Agarwal v. Tarkeshwar Prasad Agarwal, (1978) 57 Pat 426; Lakshmi Kanto Roy v. Nishi Kanto Roy, (1967) 71 Cal WN 362. 77 Fatmabibi v. Irfana Bagam, AIR 1980 All 394. 78 Maddukuri Patnam v. Alluri Veeranna, (1962) 1 An LT 442; following Seethaya v. Subramanya Somayajulu, 1929 PC 115. 79 Narayani Amma v. Padmanabha Pillai, 1957 Tra/Co. 246. 80 Kotiswar v. Paresh Nath, AIR 1956 Cal 205; Ajit Kumar v. Mukunda Lal, AIR 1988 Cal 196; Ramakrishna v. Gangadhar, AIR 1958 Ori 26. 81 Bai Sakinabai v. Gulam Rasul, AIR 1981 Guj 142; Ghurahu v. Sheo Ratam, AIR 1981 All 3. 82 Ramaji v. Manohar, AIR 1961 Bom 169, relying on; Venkata Reddy v. Rani Saheba, AIR 1920 PC 64; Kondama Naicker v. Kandasamy Goundar, AIR 1924 PC 56; Trambak Ramachandra v. Shaik Gulam Zilani, ILR 34 Cal 329(PC) ; Harihar Parasad v. Deo Narain, AIR 1956 SC 305; and dissented from Bawa Magniram v. Kasturbhai, AIR 1922 PC 163; Annamalai Chetty v. Subramanian Chetty, AIR 1929 PC 1. 83 Dominion of India v. Firm Chhaganlal Premji, AIR 1951 Nag 357; Union of India v. Nand Kishore, AIR 1966 HP 54, (70 years old regarding a grant of made by the ruler). 84 Harihar Prasad v. Deonarain, 1956 SCJ 279 at 283 : AIR 1956 SC 305. 85 Tarakeshwar Pal v. Sirish Chandra, AIR 1924 Cal 236. 86 Bhupendra Singh v. G.K. Umath, AIR 1970 MP 91. 87 Sri Prasad v. Special Manager, Court of Wards, Balrampur Estate, (1936) 12 Luck 400 : AIR 1937 Oudh 194. 88 Ram Naresh Singh v. Chirkut, (1932) 8 Luck 18 : AIR 1932 Oudh 227. 89 Chandulal v. Bai Kashi, (1938) 40 Bom LR 1262 : ILR (1938) Bom 97.

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90 Ramji v. Manohar, AIR 1961 Bom 169 : (1960) 62 Bom LR 322. 91 Sheojee v. Prema Kuer, AIR 1964 Pat 187. 92 Mathai Mathew v. State, AIR 1952 Tra Co 305.

9. MAY PRESUME The expression 'may presume' in this section indicates that the court has the discretion either to draw the presumption under this section or not. 93 The expression means that the trial court has a discretion either to presume a fact as proved or to call for proof of it 94 The presumption is discretionary and not obligatory. Even if the elements mentioned in the section are satisfied, the court may require the document to be proved in the ordinary manner. It is necessary for the court to consider the evidence external and internal of the document in order to enable it to decide whether in any particular case it should or should not presume proper signature and execution. The court may, but is not bound to, make the presumption merely because of the alleged age of the document. 95 The presumption allowed by this section is not a presumption which the court is bound to make, and the Court may require the document to be proved in the ordinary manner 96 . It is in the discretion of a court whether it will raise the presumption in favour of a document for which this section provides, but this discretion is not to be exercised arbitrarily; it must be governed by principles, which are consonant with law and justice. And while on the one hand great care is requisite in applying the presumption, on the other hand it is clear that very great injustice may be perpetrated, if an ancient document coming from proper custody is rejected by a Court capriciously or for inadequate reasons. "Because a document purports to be an ancient document and to come from proper custody, it does not, therefore, follow that its genuineness, is to be assumed. If there are reasonable grounds for suspecting its genuineness and the party relying upon it fails to satisfy the court of its due execution, there is an end of it. But if no such grounds exist, and it satisfies the conditions prescribed by Sections 90 of the Indian Evidence Act , then proof of execution is dispensed with, and it is to be dealt with on the same footing as any other genuine instrument. If the authority or the title of the executant, for example, be not questioned, then, effect is to be given to it as though he had the requisite authority or title. If either be questioned, then of course the person on whom the burden of proof lies must adduce evidence to satisfy the court on the point, or he fails. When the genuineness of a document purporting to be an ancient document is put in issue, it appears to have been sometimes thought that any presumption in its favour is thereby excluded. But this would be to deprive the party producing it of the benefits of the presumption precisely in the circumstances in which he most stands in need of its aid. And there seems to be no difference in principle between cases in which due execution is traversed without more, that is, in which the party relying on the document is put to proof of it, and those in which it is alleged that the document is a forgery, except that in the latter case, the suspicion of the court may be aroused by the nature of the plea. But in the one case, as in the other, the presumption merely takes the place of the evidence which would, where modern document is concerned, be necessary for the purpose of proving due execution. The court may decline to raise the presumption, in which case the party producing the document must fail, unless he is provided with evidence in support of it. But where the court thinks proper to raise the presumption, it must be met and rebutted in the same way as direct evidence of the execution in the case of a modern document. The proper rule is....well stated by Mr. Taylor...He says (page 587, 8th Edition)--'An ancient deed, which has nothing suspicious about it, is presumed to be genuine without express proof, the witness being presumed dead, and if found in proper custody and corroborated by evidence of ancient or modern corresponding enjoyment or by the equivalent or explanatory proof, it will be presumed to have constituted part of the actual transfer of the property therein mentioned, because this is the usual course of such transaction."1 Before a court is justified in making a presumption in favour of the genuineness of an ancient document it should be satisfied aliunde that there is good ground for accepting it as a true document. 2 If there are circumstances in the case which throw great doubt on the genuineness of a document more than thirty years old, even if it is produced from proper custody,

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the court may exercise its discretion by not admitting that document in evidence without formal proof, and reject it when no such proof is given. 3 This section does not lay down that the court must always come to the conclusion that a document more than 30 years old and produced from proper custody is genuine. 4 The language used in Section 90 indicates that the presumption raised is a permissive one. It is not obligatory on a court to raise the presumption, it is a matter of judicial discretion whether the court will make a presumption or call upon the party to offer other proof. 5 The mere fact that a party has led evidence to prove the execution of a document which is 30 years old or requested the court only towards the close of the trial to raise the presumption under Section 90 regarding the genuineness of a document, does not debar the court from raising the presumption. 6 Where the recitals of more than 40 year old sale deeds showed that they were executed to meet the legal necessities, in absence of any evidence to show that the recitals thereof were not genuine, their genuineness was presumed. 7 A document which was more than thirty years old and which was produced from proper custody being one of the beneficiary and nothing suspicious was found on the face of the document, would be regarded as a genuine document especially when it was no body's case that document was the result of a forgery. 8 A party normally expects that a presumption would be drawn in its favour when the conditions under Section 90 are fulfilled. If the Court rules otherwise, then it is duty bound to give opportunity to the party to prove the execution of the document by direct evidence, if any. However, the party leading the direct evidence regarding the execution of the document is not permitted to rely on the presumption under this section. 9 93 Sital Das v. Santa Ram, AIR 1954 SC 606. 94 Rangu v. Rambha, AIR 1967 Bom 382 : (1967) 69 Bom LR 559. 95 Mansukh Shah v. Trikambhai Patel, (1929) 31 Bom LR 1279. 96 Musammat Shafiq-un-nisa v. Khan Bahadur Raja Shaban Ali Khan, (1904) 6 Bom LR 750 : 26 All 581 : 31 IA 217; Mansukh v. Trikambhai, (1929) 31 Bom LR 1279; Anur v. Nur Muhammad, (1902) PR No. 82 of 1902 (Civil). 1 P ER H ILL J., in Govinda Hazra v. Pratap Narain Mukhopadhya, (1902) 29 Cal 740, 747. 2 Jesa Lal v. Mussammat Ganga Devi, (1913) PR No. 81 of 1913 (Civil). 3 Musammat Shafiq-un-nissa v. Khan Bahadur Raja Shaban Ali Khan, (1904) 31 IA 217 : ILR 6 Bom LR 750 : 26 All 581; Chariter Raj v. Kailash Behari, (1918) 3 PLJ 306 : AIR 1918 Pat 537. 4 Dadiraaddi Ramireddi v. Gunnala Chinnamma, AIR 1958 An LT 561, relying on Ramaswami Goundan v. Subbaraya Gaundan, 1948 Mad 388; Vidyanathaswami Iyer v. Natesa, 1921 Mad 452; Munshi Ram v. Thaker Dass, 1951 Pepsu 87; Dhanapal v. Govinda Raja, 1961 Mad 262. 5 Kotiswar v. Paresh Nath, 1956 Cal 205; N. Ramaswamy v. C. Ramaswami, 1975 Mad 88; Ayub v. Bhanwar Chand, (1971) 21 Raj 30; Rangu v. Rambha, AIR 1967 Bom 382; Ram Milan v. Sher Bahadur, AIR 1976 All 251; Shantamma v. Yellamma, (1980) 2 Kant LJ 380; Ali Hasan v. Matiullah, AIR 1988 All 57. 6 Lalit Kishore v. Laxminarayan, (1968) 18 Raj 171. 7 Bandaru Ramana v. Gedela Appalanaidu, 2005 AIHC 1130, 1140 (para 59) (AP). 8 Jagdish Singh v. Balwant Singh, 2003 AIHC 3821, 3826 (para 10) (P&H) : AIR 2004 NOC 90 : 2003 HRR 784 : 2004 (3) Punj LR 59 : 2003 (2) Rent CR 227 : 2004 (1) Rent LR 9. 9 Chanda Bai v. Anwar Khan, AIR 1997 MP 238.

10. COURT MUST ACT WITH CAUTION The rule of presumption of the genuineness of ancient document must be applied with exceeding caution and where circumstances throw suspicion on genuineness of the document, no presumption

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under Section 90 can be drawn. Although a mere recital in an ancient deed by itself cannot be proof of payment of consideration, still where the transaction happens to be an old one any little evidence in support of it would be enough to hold the recital as proved. 10 The discretion for raising the presumption must be exercised in a judicial manner basing on the particular circumstances of each case. 11 10 Minni Nagiah v. Venkiah, AIR 1950 Hyd 50; Dhanapal v. Govindaraja, AIR 1961 Mad 262; Manjoor Ali v. Kismat Ali, AIR 2004 All 395, 398 (para 14) : 2004 All LJ 3643 : 2004 (2) All CJ 1237 : 2005 (1) Rec Civ R 765. 11 Kunhamina Umma v. Spl. Tahsildar, AIR 1977 Ker 41.

11. PRESUMPTION IS REBUTTABLE A presumption drawn by the court under Section 90 it is rebuttable.

12

12 Sarat Chandra v. Panchanan, AIR 1953 Cal 471; Ayub v. Bhanwar Chand, (1971) 21 Raj 30; Hazarilal v. Sh. Shyamlal, AIR 2007 (NOC) 323(Raj) .

12. OBJECTION TO THE ADMISSIBILITY WHEN TO BE TAKEN The absence of any objection at the time of the admission of the document will not preclude the opposite party from urging that there are special circumstances which prevent the presumption under Section 90 from being drawn. 13 13 Ramakrushna v. Gangadhar, AIR 1958 Ori 26.

13. POWER OF THE APPELLATE COURTS Once the discretion is exercised by the Court below, the High Court ought not to interfere without any compelling reason. 14 The appellate court will not interfere unless the discretion has been exercised by the trial court arbitrarily, capriciously or perversely or without due consideration of relevant facts and circumstances of the case. 15 It is the trial court that should be asked to presume a document to be genuine under Section 90. One can not ask the High Court for the first time to draw the presumption under section. 90. 16 The appellate court should always be slow to interfere with the discretion of the trial court as to the raising or refusing to draw the presumption. 17 Distinguishing the above decision, it was held that when the document purporting to be more than 30 years is a registered one and it is produced from proper custody, the presumption can be drawn by the court. 18 Where the appellate court intends to take a different view from the trial courts discretion, an opportunity to adduce further evidence in support of the presumption ought to be given to the party producing the document. 19 14 Ramakrushna v. Gangadhar, 1958 Ori 26; Amrita Devi v. Sripat Rai, 1962 All 111; Ayub v. Bhanwar Chand, (1971) 21 Raj 30; Bhaggal v. Rangi Lal, AIR 1986 All 163. 15 Chandri Begam v. Madharao, AIR 1953 MB 28; Rangu v. Rambha, AIR 1967 Bom 382. 16 Kanhiya Lal v. Jamna Lal, AIR 1950 Raj 47. 17 Nathu Lal v. Gomti Kaul, AIR 1949 PC 160; Vaidyanathaswamy v. Natesa, AIR 1921 Mad 452; Gomti v. Meghraj, AIR 1933 All 443; Ravjappa v. Nilakanta Rao, AIR 1962 Mys 53; Rangu v. Rambha, AIR 1967 Bom 382. 18 Tej Singh v. Hastimal, AIR 1972 Raj 191.

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19 Dadireddy Rami Reddi v. Gunnamma Chinnamma, 1958 An LT 561; relying on Rajendra Prosad v. Gopal Prasad, AIR 1929 Pat 51; Radhe Kishun v. Basdeo Lal, 1935 Oudh 482.

14. UTTAR PRADESH AMENDMENT By the Uttar Pradesh Civil Laws (Reforms and Amendment) Act 34 of 1954, Section 90 was amended. According to that the main section was renumbered as 90(1) with a slight amendment substituting the words of "20 years", for the words "30 years". A new sub-sec. (2) was added which is as follows: "Where any such document as is referred to in sub-Section 1 was registered in accordance with the law relating to registration of documents and a duly certified copy thereof is produced, the court may presume that the signature and every other part of such document which purports to be in the handwriting of any particular person, is in that person's handwriting, and in the case of a document executed or attested, that it was duly executed and attested by the person by whom it purports to have been executed or attested. Then another section with two clause s were added which are as follows:-"90A(1). Where any registered document or a duly certified copy thereof or any certified copy of any document which is part of the record of a court of justice, is produced from any custody which the court in the particular case considers proper, the court may presume that the original was executed by the person by whom it purports to have been executed.

(2) This presumption shall not be made in respect of any document which is the basis of a suit or of a defence or is relied upon in the plaint or written statement. The explanation to sub-sec. (1) of Section 90 will also apply to this section".

It was held that the presumption under Section 90-A may be made only if the original shows on the face of it the name of the person by whom it purports to have been executed; the mere fact that it is 20 or 30 years old does not make it admissible without proof; the presumption under Section 90-A is with regard to the execution of a document; and it that respect Section 90-A is narrower in scope than Section 90 of the act under which a presumption may be made that a document is in the handwriting of a person by whom it purports to have been written; it is not without reason that the Legislature while amending Section 90 confined the scope of Section 90-A to raising the presumption regarding the execution, as, it has within its view not only a registered document but also certified copies of the document forming part of the record of a court of justice. 20 The Sub-Registrar is not a court of justice within the meaning of Section 90-A; a certified copy of an application made to him cannot, therefore, be relied upon to draw a presumption that the original was executed by the person by whom it purports to have been executed. 21 The effect of the presumption under Section 90 of the UP Amendment is that a formal proof of such document is dispensed with and the document is admissible in evidence. 22 In Ram Jas v. Surendra Nath 23 overruling 24 was held that Section 90-A (2) does not override and nullify Section 90, even if the document is more than 20 years old is the basis of the suit or the defence or is relied upon in the plaint or written statement; Section 90-A is independent of Section 90; the presumption though not available under one section can still be drawn under another section. It was held dealing with the UP Amendment Act of 1954 that: 14)   so far as the registered documents are concerned all are not governed by Section 90-A including Section 90-A cl. (2); otherwise Section 90 would be redundant and superfluous; the presumption under Section 90 so far as it relates to registered documents applies to the documents which are more than 20 years old and this presumption is not subject to a condition similar to the one contained in Section 90-A (2); on the other hand the presumption available under Section 90-A (1) applies to registered

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documents or copies thereof which are not more than 20 years old and that is subject to the condition laid down in Section 90-A (2). 13)   It was further held that if the document is not the basis of the suit but simply relied on as a piece of evidence its genuineness can be presumed under Section 90, if it is more than 20 years old, and under Section 90-A (1), if it is a registered document or a duly certified copy thereof and is less than 20 years old. A lady asserted herself to B the Bhumidar in consolidation proceedings. In proof of her claim she relied on a sale deed transferring ownership of certain plot, when she preferred a claim for that plot as the objector in the consolidation proceedings, it was held by the Allahabad High court that the sale deed cannot be said to be the basis of her suit claiming the plot, but only a piece of evidence in support of the claim. 25 It was held that the presumption of due execution and attestation cannot be drawn in respect of a document less than 20 years old and not forming part of court records and which is the basis of claim of title of one of the parties. 26 It was held that Section 90(2) was not controlled by 90-A(2). Thus a certified copy of a document is one in regard to which a presumption can be raised under Section 90-(1) as in the case of the original, provided the original document is more than 20 years old. 27 The presumption under Section 90 is not subject to the exception given in Section 90-A(2), the correct interpretation of Section 90 as amended, and Section 90-A read together will be that in cases where a registered document or certified copy thereof is more than 20 years old, the same may be presumed without formal proof of execution and attestation, even though the said document or the certified copy is the basis of the suit or of defence. Whereas, under Section 90-A if the document is not more than 20 years old but is a registered document or a duly certified copy thereof a presumption about its due execution can also be made provided the document does not form the basis of the suit or defence. 28 It was held in another case that the presumption which was by virtue of Section 90(1) available in respect of the original documents has now been by virtue of Section 90(2) extended even to certified copies of registered documents. There arises no occasion to raise a presumption under Section 90 till a case for reception of secondary evidence has been made out. After the amendment the presumption under Section 90 is to be made in respect of 20 years old document and the same may be extended to copies. 29 Where a copy of the document from the record of a Court was produced only as a piece of evidence in support of certain factual allegation made in the plaint, it was held that the court could validly raise the presumption as it was executed by the parties by whom it purported to be executed and that sub-sec. (2) does not apply to such a document. 30 Section 90-A(2) does not override Section 90 of the Evidence Act as both have to operate in different fields. A document which is registered and which is more than 20 years old can not be admitted in evidence under Section 90-A(2), if the said document is the basis of the suit and the defence, but, if available, the presumption can be raised under Section 90 of the Evidence Act. 31 20 Amrita Devi v. Sripath Rai, AIR 1962 All 111. 21 Surendra Pal v. Surendra Pal, (1976) 2 All 143. 22 Babuna Ndan v. Board of Revenue, 1972 All 406. 23 AIR 1980 All 385(FB) . 24 AIR 1974 All 389. 25 Deo Chand v. Dy. Director of Consolidation, AIR 1971 All LJ 992. 26 1971 All WR (HC) 438. 27 Risal v. Dy. Director of Consolidation, 1970 All LJ 1161.

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28 1969 All WR (HC) 188. 29 Sardaran v. Sunderlal Baldeo Prasad, AIR 1968 All 363. See also Shayama Devi v. Premvati, AIR 1996 All 57 (para 23). 30 1971 All WR 132. 31 Manjoor Ali v. Kismat Ali, AIR 2004 All 395, 398 (para 9) : 2004 All LJ 3643 : 2004 (2) All CJ 1237 : 2005 (1) Rec Civ R 765.

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CHAPTER V OF DOCUMENTARY EVIDENCE PRESUMPTIONS AS TO DOCUMENTS 32

[ S. 90-A.

Presumption as to electronic records five years old. Where any electronic record, purporting or proved to be five years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the digital signature which purports to be the digital signature of any particular person was so affixed by him or any person authorised by him in this behalf. Explanation. --Electronic records are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they naturally be; but no custody is improper if it is proved to have had a legitimate origin, or the circumstances of the particular case are such as to render such an origin probable. This Explanation applies also to Section 81-A.] STATE AMENDMENTS Uttar Pradesh. --After Section 90,add the following as a new Section 90-A: '90-A. (1) Where any registered document or a duly certified copy thereof or any certified copy of a document which is part of the record of a court of justice, is produced from any custody which the court in the particular case considers proper, the court may presume that the original was executed by the person by whom it purports to have been executed. 14)   This presumption shall not be made in respect of any document which is the basis of a suit or of a defence or is relied upon in the plaint or written statement. The explanation to sub-section (1) of Section 90 will also apply to the section'.-- Vide U.P. Act XXIV of 1954. 1. THE INFORMATION TECHNOLOGY ACT , 2000 PRESUMPTION AS TO ELECTRONIC RECORD FIVE YEARS OLD

The new Section 90A says that where an electronic record, purporting to be or proved to be five years old, is produced from the custody which the Court considers proper in a particular case, it may presume that the digital signature which purports to be the digital signature of any person was so affixed by him or by any person authorised by him in that behalf. The explanation defines "proper custody" saying that the electronic records are said to be in proper custody if they are in the place in which and under the care of the person with whom they would naturally be; but no custody is improper if it is proved to have a legitimate origin, or the circumstances of the particular case are such as to render an origin probable. 32 Inserted by the Information Technology Act, 2000, S. 92 and Sch. II (w.e.f. 17-10-2000).

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2. DABHALNAMA A dakhalnama which is not the basis of suit or defence, does not require proof and presumption under Section 90-A can be drawn safely in respect of it. 33 33 Krishna Mohan v. Bal Krishna Chaturvedi, AIR 2001 All 334 (para 37) : 2002 AIHC 506(All) .

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Ratanlal & Dhirajlal: Law of Evidence, Updated 23rd Edition/THE INDIAN EVIDENCE ACT (ACT 1 OF 1872)/PART II ON PROOF/CHAPTER VI OF THE EXCLUSION OF ORAL BY DOCUMENTARY EVIDENCE/S. 91.

CHAPTER VI OF THE EXCLUSION OF ORAL BY DOCUMENTARY EVIDENCE S. 91. Evidence of terms of contracts, grants and other dispositions of property reduced to form of document. When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained. Exception 1. --When a public officer is required by law to be appointed in writing, and when it is shown that any particular person has acted as such officer, the writing by which he is appointed need not be proved. Exception 2. --Wills admitted to probate in India may be proved by the probate. Explanation 1. --This section applies equally to cases in which the contracts, grants or dispositions of property referred to are contained in one document, and to cases in which they are contained in more documents than one. Explanation 2. --Where there are more originals than one, one original only need be proved. Explanation 3. --The statement, in any document whatever, of a fact other than the facts referred to in this section, shall not preclude the admission of oral evidence as to the same fact. ILLUSTRATIONS 3a )   If a contract is contained in several letters, all the letters in which it is contained must be proved. 3b )   If a contract is contained in a bill of exchange, the bill of exchange must be proved. 3c )   If a bill of exchange is drawn in a set of three, one only need be proved. 3d )   A contracts, in writing, with B , for the delivery of indigo upon certain terms. The contract mentions the fact that B had paid A the price of other indigo contracted for verbally on another occasion. Oral evidence is offered that no payment was made for the other indigo. The evidence is admissible. 1e )   A give B a receipt for money paid by B . Oral evidence is offered of the payment. The evidence is admissible. 1. PRINCIPLE AND SCOPE

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When a transaction has been reduced to writing either by agreement of the parties or by requirement of law, the writing becomes the exclusive memorial thereof, and no evidence shall be given to prove the transaction, except the document itself or secondary evidence of its contents where such evidence is admissible. This rule is based on the principle that the best evidence, of which the case in its nature is susceptible, should always be presented....This rule does not demand the greatest amount of evidence which can possibly be given of any fact, but its design is to prevent the introduction of any which, from the nature of the case, supposes that better evidence is in the possession of the party. It is adopted for the prevention of fraud, for, when better evidence is withheld, it is only fair to presume that the party has some sinister motive for not producing it, and that, if offered, his design would be frustrated. The rule thus becomes essential to the pure administration of justice. 1 The best evidence about the contents of a document is the document itself and it is the production of the document that is required by this section in proof of its contents. 2 Section 91 relates to evidence of terms of contract, grants and other disposition of properties reduced to form of document. This section merely forbids proving the contents of a writing otherwise than by writing itself; it is covered by the ordinary rule of law of evidence, applicable not merely to solemn writings of the sort named but to others known some times as the "best evidence rule". It is in reality declaring a doctrine of the substantive law, namely, in the case of a written contract, that of all proceedings and contemporaneous oral expressions of the thing are merged in the writing or displaced by it. 3 When a jural act is embodied in a single memorial all other utterance of the parties on the topic are legally immaterial for the purpose of determining what are the terms of their act. This rule is based upon an assumed intention on the part of the contracting parties, evidenced by the existence of the written contract, to place themselves above the uncertainties of oral evidence and on a disinclination of the Courts to defeat this object. One of the most common and important of the concrete rules presumed under the general notion that the best evidence must be produced and that one with which the phrase "best evidence" is now exclusively associated is the rule that when the contents of a writing are to be proved, the writing itself must be produced before the Court or its absence accounted for before testimony to its contents is admitted. 4 It is likewise a general and most inflexible rule that wherever written instruments are appointment, either by the requirement of law or by the contract of the parties, to be the repositories and memorials of truth, any other evidence is excluded from being used either as a substitute for such instruments, or to contradict or alter them. This is a matter both of principle and policy. It is of principle because such instruments are in their own nature and origin, entitled to a much higher degree of credit than parole evidence. It is of policy because it would be attended with great mischief if those instruments, upon which men's rights depended, were liable to be impeached by loose collateral evidence. 5 Under this section (1) when the terms of (a) a contract, (b) a grant, or (c) any disposition of property have been reduced to the form of a document; or (2) when any matter is required by law to be reduced to the form of a document. Then (a ) the document itself, or (b ) secondary evidence of its contents, must be put in evidence. The first part refers to transactions voluntarily reduced to writing. The second refers to those cases in which any matter is required by law to be reduced to the form of a document, e.g. , sale of immovable property of the value of one hundred rupees and upwards, mortgage for an amount of one hundred rupees or more, a lease of immovable property for any term exceeding one year, a trust of immovable property, a gift of immovable property etc. 6 These are two exceptions to these provisions: 15)   When a public officer is required by law to be appointed in writing, and any officer has act ed as such, the writing need not be proved; 15)   Wills admitted to probate in India may be proved by the probate.

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The general rule laid down in this section is also subject to the exceptions laid down in the following Ss. 95 to 99. The section has no application when the writing is not evidence of the matter reduced to writing. This section and S. 92 define the cases in which documents are exclusive evidence of transactions which they embody. They only apply when the document evidencing a contract appears to contain all the terms thereof. The inference that a writing was intended to contain the whole agreement may be drawn from the document itself as well as from extrinsic evidence. 7 Sections 93- 100 provide for the interpretation of documents by oral evidence. Illustration (b) refers to the first part of the section. This section deals with exclusiveness of documentary evidence, whereas, Section 92 deals with conclusiveness of documentary evidence, though S IR . J AMES S TEPHEN in his digest 8 deals with both the sections under one head "the parol evidence". In Bai Hira Devi v. Official Assignee of Bombay , 9 the Supreme Court pointed out the principle underlying Section 91 and the difference between Section 91 and 92. It was observed: " Section 91 is based on what is sometimes described as the "best evidence rule". The best evidence about the contents of a document is the document itself and it is the production of the document that is required by Section 91 in proof of its contents. It is after the document has been produced to prove its terms under Section 91 that the provisions of Section 92 come into operation for the purpose of excluding evidence of any oral agreement or statement, for the purpose of contradicting, varying, adding to or subtracting from its terms. Sections 91 and 92 in effect supplement each other. Section 91 would be frustrated without the aid of Section 92 and Section 92 would be inoperative without the aid of Section 91. The two sections, however, differ in some material particulars. Section 91 applies to all documents, whether they purport to dispose of rights or not, whereas Section 92 applies to documents which dispose of property. Section 91 applies to documents which are both bilateral and unilateral, unlike Section 92 the application of which is confined only to bilateral documents. Section 91 lays down the rule of universal application and is not confined to the executant or executants of the documents. Section 92 on the other hand, applies only between the parties to the instrument or their representatives in interest". It is a cardinal rule in the Law of Evidence that the best available evidence should be brought before the court. Sections 60, 64 and 91 are based on this rule. 10 P HIPSON states: "When a transaction has been reduced to, or recorded in, writing either by requirement of law, or agreement of the parties, the writing becomes, in general, the exclusive record thereof, and no evidence may be given to prove the terms of the transaction, except the document itself or secondary evidence of its contents". (P HIPSON on Evidence, 15th Edn. (2000), para 42.01, page 1157). 11 In Meer Mohammed Kajen Jowhurry v. Khetoo Debee 12 it was observed, "the rule with regard to writings is that oral proof cannot be substituted for the written evidence of any contract which the parties have put into writing. And the reason is that the writing is tacitly considered by the parties themselves as the only repository and the appropriate evidence of their agreement. 13 Where the terms of the contract are reduced to writing, Section 91 comes into play. The primary evidence from which the intention of the parties is to be gathered, is the document itself and surrounding circumstances. Subsequent conduct cannot be proved to show that the intention of the parties was different. 14 Where the original sanad which is an ancient grant was produced and when there is no ambiguity, it was held that the conduct of the parties cannot be looked into in interpreting the sanad by adducing evidence. 15 The Supreme Court in Fort Gloster Industries v. Sethia Mercantile Pvt. Ltd 16 held that the Court could not refer to any evidence other than the documents relating to arbitration agreement for determining the question whether arbitration could be invoked for settlement of the dispute; that the terms of the arbitration contract required to be in writing ( Sections 33 of Arbitration Act 1940 and Section 10 of the Contract Act) cannot be proved otherwise than by offering the document itself in evidence. Hence,

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where the original document was found inadmissible in evidence, it was not open for the plaintiff to produce a xerox copy of the same and to confront the same by oral evidence. 17 An arbitration agreement to refer a dispute to an arbitrator is a contract within the meaning of Section 91. 18 A contract to refer disputes to arbitration is different from the proceedings of the arbitrators in respect of the disputes. The Evidence Act is not applicable to the arbitration proceedings but will apply to the arbitration agreement. 19 In a case where there was an agreement for sale of two ancestral houses jointly held by two brothers (defendant's 1&3) for a consideration of Rs. 2,250 out of which Rs. 200 was paid as earnest money and when a separate oral agreement was pleaded, it was held that neither Section 91 nor provisos 2, 3 Illus. (g ) to proviso 6 of Section 22 would enable the plaintiff to lead evidence to spell out two different agreements in respect of the two houses by showing that the brothers were separated and houses were separately owned by them on the date of agreement. 20 In a case of joint purchasers of property, it was held no amount of evidence could be led or considered for giving a finding of exclusive ownership of plaintiff over a passage. 21 The oral evidence referred to in this section is not confined to the one to be led by the party opposing the document referred to therein in the form of chief-examination of a witness but it also includes the cross-examination of the witness by the opposite party. 22 Section 91 of the Evidence Act prohibits oral evidence only regarding the terms of the contract or other evidence relating to the terms of contract. It does not prohibit the parties to lead oral evidence in respect of the nature of the contract as well as the oral agreement entered into between the parties simultaneously along with the document. If there is ambiguity in the language employed and the recitals thereon, intention of the parties may be ascertained by adducing extrinsic evidence. 23 1 For Statement of Objects and Reason, see Gaz. of India, 1868, p. 1574. 1 T AYLOR , 12th Edn., S. 391, p. 272, See Entisham Ali v. Jamna Prasad, (1922) 24 Bom LR 675 : 48 IA 365, where secondary evidence of a sale deed was admitted. See also Roop Kumar v. Mohan Thedani, AIR 2003 SC 2418 (para 13) : (2003) 6 SCC 595. 2 Hira Devi v. Official Assignee, Bombay, AIR 1958 SC 448 : (1958) 60 Bom LR 932. 3 Roop Kumar v. Mohan Thedani, AIR 2003 SC 2418 (para 13) : (2003) 6 SCC 595. 4 Roop Kumar v. Mohan Thedani, AIR 2003 SC 2418 (para 16) : (2003) 6 SCC 595. 5 Roop Kumar v. Mohan Thedani, AIR 2003 SC 2418 (para 17) : (2003) 6 SCC 595. 6 See Chowgatta v. Chattar Singh, (1877) PR No. 18 of 1878 (Civil); Fattesh Singh v. Mian Singh, (1883) PR No. 131 of 1883 (Civil). 7 Chimanram Motilal v. Divanchand Govindram, (1931) 56 Bom 180 : (1932) 34 Bom LR 26. 8 7th Ed., Art. 90, P. 98. 9 AIR 1958 SC 448 : 1958 SCR 1384 reversing 1955 Bom 122. 10 In re.: Vadlamudi Kutumba Rao, AIR 1957 AP 595. 11 See also Mansingh Mahtoon v. Bhaik Narain Mahtoon, 7 IA 8 PC. 12 10 WR 150. 13 See also Sundarachariar v. Narayana Ayyar, AIR 1931 PC 36; Rachpal Maharaj v. Bhagwandas Daruka, AIR 1948 Pat 251; Jata Shanker (L. Rs. since deceased) v. Mavji Trikam (L.Rs since deceased), AIR 1969 Guj 169; Kangabam Bira Singh v. Manipur Drivers Union, AIR 1957 Manipur 9; relying on Charan v. Shyam Lal, AIR 1950 Pepsu 34; Ratan S. Naik v. Union of India, 1980 Lab. IC 1140(Goa) . 14 State of Madras v. Ramlingam & Co., AIR 1956 Mad 695 reversed on another point in Ramalingam & Co. v. State of Madras, AIR 1962 SC 1148 : 1962 Supp (2) SCR 954.

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15 Somar Puri v. Shyam Narayan Gir, AIR 1954 Pat 586. 16 AIR 1971 SC 2289. 17 Lakshamma v. Riyaz Khan, AIR 2003 Kant 197. On this point High Court discussed at length decisions of its own Court and other High Courts as well as of that of Apex Court. 18 Radha Kishan v. Sapattar Singh, AIR 1957 All 406 overruling Babu Ram v. Lala Ram, AIR 1929 All 415. 19 Bengal Jute Mill Co. v. Lalchand Dugar, AIR 1963 Cal 405. 20 Shrikrishna, Keshav Kulkarni v. Balaji Ganesh Kulkarni, AIR 1976 Bom 242. 21 Chanderwati v. Lakshmi Chand, AIR 1988 Del 13. 22 Nandam Mohanamma v. Markonda Narasimha Rao, AIR 2006 AP 8, 11 (para 18). 23 Jayalakshmi Trading Co. v. Krishnamurthy, AIR 2006 Mad 179, 184 (para 21). See also K. Achuthan Chetty v. K.K. Narayanan, AIR 2006 (NOC) 1289(Mad) : (2005) 4 Mad LJ 643.

2. DOCUMENT MUST CONTAIN ALL THE TERMS The Privy Council in Mohammad Akbar Khan v. Attar Singh 24 observed: "Before evidence is excluded under Section 91 and 92 Evidence Act, it must be proved that the document in question records or purports to record all the terms of the contract between the parties". It follows that when all the terms have not been reduced to writing oral evidence is not excluded. In that case there was nothing in the document which explained how the money came to be received; and there was nothing to prevent the parties from showing that it was paid by way of loan, deposit, or on account of some joint venture. The use of the money might have been limited in various ways. The only terms which the document did express were as to the date of repayment of the money expressed to be received and as to the rate of interest. These terms the defendants did not seek to contradict, vary add to or subtract from. The Board therefore held that it could proceed to examine the evidence untrammelled by the restriction imposed upon themselves of having to disregard the receipt or evidence as to the actual transaction. If the parties intended only to reduce to writing a portion of the terms of the contract, then they are entitled to give parol evidence of the terms which they did not intend to reduce to writing 25 Where parties to a contract agree to substitute a written instrument for an oral contract the ultimate contract is deemed to be contained in the instrument alone and no oral evidence of its terms can be given thereafter 26 24 AIR 1936 PC 171. 25 Jamna Doss v. Srinath Roy, (1889) 17 Cal 176, 177. See Sangam Lal v. Mussammat Sikandar Jehan Begam, (1889) PR No. 183 of 1889, FB (Civil); Ram Gopal v. Tulshi Ram, (1928) 51 All 79, (FB); Ghasilal v. Deobai, (1953) MB 303; State of Madras v. Ramalingam & Co., AIR 1956 Mad 695, 701. 26 Nainsukhdas Sheonarayan Shop v. Goverdhandas, ILR (1947) Nag 510.

3. COMPROMISE--DOCUMENT Where there was a written compromise between the parties and when it was sought to be enforced as a contract the introduction of a new term by way of oral evidence is not permissible in view of Section 91 and the proof of terms can be only by filing the compromise deed and not by oral evidence. 27 A wakf can be created orally under Muhammadan Law, but when the terms of dedication are reduced to the form of a writing, no evidence can be given to prove the terms except the document itself or secondary evidence thereof. 28 27 Md. Daud v. Abu Mohammad, AIR 1961 Pat 310; Hargyan v. Banwari Lal, AIR 1968 All 275.

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28 Shaikh Muhammad Ibrahim v. Bibi Mariam, (1928) 8 Pat 484; Mohammed Khan v. Sheo Bhikh Singh, (1929) 5 Luck 377.

4. TERMS The expression "terms" in this section and S. 92 relates to statements, assertions or representations contained in a written contract which relate to the subject-matter of the contract and to something to be done or not to be done under the contract, and has no application to a provision in the nature of a condition precedent to the very existence or formation of a contract. 29 Where a sale deed contained a term for the reconveyance of the property under certain conditions it was held that such stipulation can not be proved by oral evidence in view of the bar of Section 91. 30 Where the tenant constructed a kitchen without the landlord's permission, it was held that in the absence of the proof of usage, a condition that the tenant shall not construct any other structures to the building is implied in the tenancy agreement, and that the tenant constructing the kitchen amounts to breach of a condition of the tenancy. Hence Section 91 is not attracted and the plaintiff can prove the breach of the condition. 31 In a contract of sale of property, it was held that the manner and time of payment of consideration can be proved by oral evidence. 32 In regard to a recital in a gift deed that there was no consideration, the Bombay High Court held that it is always open to the parties to prove that a certain recital which is a statement of fact is not correct and it can be shown that there was consideration and the document was a sale. 33 Section 91 and 92 are a bar for any party to set up a case that consideration for sale is more than what was mentioned in the document and when it was not the case that the consideration was not paid or there was failure of consideration or the consideration agreed between the parties was of a different kind than what was mentioned in the document. 34 The price agreed upon is a term of the contract when such agreement is reduced to writing. Any oral agreement pleaded for paying a higher price cannot be admitted. 35 Where the contract of sale of which specific performance is sought, is uncertain no oral evidence can be allowed to add to its terms. 36 When a sale deed had been executed and registered, in a suit for possession by the vendee, it is not open to the vendor to let in oral evidence to show that the terms of the contract between the parties were different or were at variance with the terms contained in the document. 37 The expression "terms" of a contract in Section 91 and the corresponding expression in Section 92 has no application to a statement contained in writing which is in the nature of a condition precedent to the very formation of that contract. 38 The Privy Council in Tyagaraja Mudaliyar and others v. Vedathanni 39 observed: " Section 92, only excludes oral evidence to vary the terms of the written contract and has no reference to the question whether the parties had agreed to contract on the terms set-forth in the document. The objection must therefore, be based on Section 91 which only excludes oral evidence as to the terms of a written contract. Clearly under that section, a defendant suing as in the present case, upon a written contract purporting to be signed by him, could not be precluded in disproof of such agreement from giving oral evidence that his signature was a forgery". Thus the difference can be seen between an attempt to show that the terms of a contract were different from those recorded in the document and an attempt to show that the contract as mentioned in the document was not the real contract between the parties, but something else. 40 In the case of mortgagors also, it was held that one mortgagor can show that he was only a surety for the other mortgagors and they are liable to pay the amount which he was compelled to pay under the mortgage deed. 41 Neither Section 91 nor Section 92 has application unless in the first instance there is a contract or a grant or any other disposition of property; evidence intended to show that there was no grant, contract

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or disposition of property does not offend the provisions of either section; notwithstanding the recital of payment of consideration in a document, evidence can be given to show that the consideration was not act ually paid. 42 Where the deed of Nikahnama mentioned certain amount as prompt dower, it was held that Section 91 only excludes oral evidence as to the terms of the contract, but oral evidence is admissible to show that a document executed by a person was never intended to operate as an agreement and was brought into existence for the purpose of creating evidence about some other matter; Sections 91 and 92 will not debar a party, to show that there was no agreement between the parties. 43 In 44 the Privy Council held that where a document is signed only by one of the parties, it does not amount to a written agreement and hence oral evidence to prove that the real intention of the parties was different from that exposed by the terms of the document is admissible. The section does not preclude a party from proving that the real contract is different from what was found in the deed. 45 Where a partner's signature was not on the deed of partnership, it was held that evidence was not excluded by Section 91 to prove the fact of partnership. 46 29 P.B. Bhat v. V.R. Thakkar, (1972) 74 Bom LR 509. 30 Bibi Anwarunisa v. Daulat Rai, AIR 1988 Pat 229. 31 Leena Roy Choudhary v. Indumathi Bose, AIR 1980 Pat 120. 32 (1972) 2 Cut WR 1298. 33 Bai Hiradevi v. Official Assignee Bombay, AIR 1955 Bom 122; this was reversed in Bai Heeradevi v. Official Assignee AIR 1958 SC 448 and it was held that the parties to the document cannot lead evidence to show that there is consideration but strangers to the document can lead such evidence. 34 Leelamma v. Narayanan, AIR 1992 Ker 115; relying on Md. Taki Khan v. Jang Singh, AIR 1935 All 529(FB) ; Bai Hira Devi v. Official Assignee, Bombay, AIR 1955 Bom 122 Supra; Narasimhachari v. Indo Commercial Bank, 1955 Mad 147; Rajanna v. Dhondusa, AIR 1970 Mys 270. 35 Subhadra v. Kesavan, 1962 Ker LJ 938 relying on Maung Man v. Ma kin oh, AIR 1928 Rang 47; Mothy Krishnayya v. Md. Galeb, AIR 1930 Mad 659. 36 Phuljhari Devi v. Mithailal, AIR 1971 All 494. 37 Doddamallappa v. Gangappa, AIR 1962 Mys 44. See also K. Bhaskaran Nair v. Habeem Mohammed, AIR 2002 Ker 308, 310, following Thyagraja v. Vedathannim, AIR 1936 PC 70. 38 B. Bhatt v. V.R. Thakkar, AIR 1972 Bom 365. 39 AIR 1936 PC 70. 40 See also Syed Rasool v. Mohd. Moulana, AIR 1977 Kant 173; Hukum v. Shambhu, AIR 1935 All 346. 41 Sultan Md. Mohideen v. Amthul Jalal, AIR 1927 Mad 1102; Lakshmana Sahu v. Simaetiala Patra, AIR 1941 Pat 211; Khudawand v. Narendra, ILR 58 All 548; Ramayya v. Mannaru, AIR 1930 Mad 590 (a case of transferees interse ). 42 Bhawanbhai Premabhai v. Bai Vahali, AIR 1955 Bom 320; following Tyagaraja Mudaliyar v. Vedathanni, AIR 1936 PC 70. 43 Kahiz Kasim v. Hadi Husain Khan, 1977 All LJ 900 relying on Asaram v. Ludheshwar, AIR 1938 Nag 335. 44 Egged Co-operative Society Ltd. v. Levi Geffen, AIR 1947 PC 32. 45 Arumoorthi v. S.E. Committee, AIR 1962 Mad 360. 46 Shiv Singh v. Ramji Das, AIR 1955 HP 54.

5. CONDUCT OF PARTIES The Supreme Court held in Bhaskar Waman Joshi v. Shri Narayan Rambilas Agarwal, 47 that the form in which the deed is clothed is not decisive. In a sale coupled with an agreement to reconvey, there is no relation of debtor and creditor; nor is the price charged upon the property conveyed, but the sale is

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subject to an obligation to retransfer the property within the period specified. The definition of a 'mortgage' by conditional sale itself contemplates an ostensible sale of the property. The question in each case is one of determination of the real character of the transaction to be ascertained from the provisions of the deed viewed in the light of surrounding circumstances. If the language employed is ambiguous, the intention may be ascertained from the contents of the deed with such extrinsic evidence as may by law, be permitted to be adduced to show in what manner the language of the deed was related to the existing facts. Oral evidence of intention is not admissible in interpreting the covenants of the deed, but, evidence to explain or even to contradict the recitals as distinguished from the terms of the document may of course be given. Evidence of contemporaneous conduct is always admissible as surrounding circumstances, but evidence as to subsequent conduct of the parties is inadmissible. 48 Where the terms of the document are unambiguous and envisage an out and out sale it was held that no oral evidence of the conduct of the parties or the surrounding circumstances could be admitted in evidence to vary or contradict its terms by indicating that the said document was not a sale, but a " Viswas Bai " which means a sale as a result of good feeling amongst the parties or because of the confidence that one reposes in the other. 49 Where a document showed no sharing of profits but one person was required to pay a fixed sum periodically to the other and carry on business in his own name on the property of the other, the question was whether it was a partnership or lease. In deciding the question whether the transaction was a lease or a partnership, it was held oral evidence showing the transaction to be a lease could not be rejected and Section 91 was no bar. 50 Section 159 of the Evidence Act states that a witness may during the examination in court refresh his memory by referring to any writing made by himself at the time of the transaction concerning which he is questioned. He may also refer to any such writing made by any other person. Section 160 states that a witness may also testify to the facts mentioned in any document as is mentioned in Section 159, although he has no specific recollection of the facts themselves, if he is sure that the facts were correctly recorded in the document. But before referring to those documents, it must be produced and shown to the adverse party if he so requires, or if the adverse party wants to cross-examine the witness on that document. Where a contract was signed by the defendant personally and he attempted to lead oral evidence to show that he was contracting as an agent and that the name of his principal was disclosed at the time of the contract, it was held that such evidence was not admissible for the purpose of exonerating a contracting party from liability, for that would be substituting different agreement from that evidenced by the writing. 51 Evidence is admissible to show whether a party contracted as an agent or in the capacity of a seller or buyer. 52 The Supreme Court while dealing with a rent note held that, by reading Section 91 with Section 92 proviso 4, of the Act, oral evidence is admissible to prove that the real tenant was other than the ostensible tenant appearing on the note. 53 Relying on Thyagaraja Mudaliyar v. Vedathanni, 54 a division bench of the Allahabad Court held that Sections 91 and 92 do not preclude a party from giving evidence to show that the written agreement executed was never intended to operate as an agreement, but was brought into existence solely for creating evidence about some other matter. 55 In a suit for possession of a house on the strength of a sale deed the defendant sought to prove that the sale deed had not been executed, so as to operate as a sale deed, but was executed as a sequel to another transaction of agreement to sell which the defendant had entered into with the plaintiff regarding the sale of his land. It was held that such defence did not run counter either to Section 91 or Section 92. 56 Sections 91 and 92 do not preclude the defendants from showing by evidence that though the document was executed in the form of an agreement for sale of land, the real nature of the transaction was a loan for which the document was a security. 57 Where the parties agree that a negotiable instrument shall be taken as conditional payment only and not as accord and satisfaction of the original debt, that term of the agreement will not be generally embodied in the negotiable instrument and in such cases Section 91 has no application. 58

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A collateral agreement between the parties that the sale deed between them is nominal and will not be acted upon, is not hit by Sections 91 and 92 and can be proved by direct and circumstantial evidence. 59 Oral evidence is admissible to determine the questions whether a gift deed was act ed upon or not. 60 Section 91 only excludes oral evidence of the terms of a document but not of existence of the contract or the relationship of landlord and tenant brought about by possession and payment of rent. 61 When one of the brothers executed a pronote for a business which was carried on jointly with his brothers in partnership oral evidence was admitted to prove an assurance that the amount was taken for the joint business. 62 The Supreme Court in Mahindra and Mahindra v. Union of India 63 held "It is true that a clause in an agreement may embody a trade practice and such a trade practice may have the actual or probable effect of restricting or destroying competition and hence they constitute a restrictive trade practice. To know the effect of such clause oral evidence can be adduced "to determine whether a particular trade practice set out in the agreement has or may have the effect of preventing, distorting or restricting competitions so as to constitute "a restrictive trade practice" under the Monopolies and Restrictive Trade Practice Act 1969 and that Sections 91 and 92 are no bar as it would not amount to contradicting varying, adding to, or subtracting from the terms of the document". The Supreme Court held that the decision in Hindustan Liver Ltd., Bombay v. Monopolies and Restrictive Trade Practices Commission 64 is not good law. In Hindustan Lever case 65 it was held that where the clause s of the agreement were clear and the meaning decisive, no oral evidence could be led to deduce their meaning or to vary it in view of Sections 91 and 92. 47 AIR 1960 SC 301 : (1960) 2 SCR 117. 48 See also Narasingerji Gyanagerji v. P. Parthasarathi, AIR 1924 PC 226; Rajat Chandra Deka v. Dhani Ram Deka, AIR 1965 Assam 90; Guru Basappa v. Gurulingappa, AIR 1962 Mys 246; Jayalakshmi Trading Co. v. Krishnamurthy, AIR 2006 Mad 179, 184 (para 21). 49 (This principle may apply to mortgage also) Guru Basappa v. Guru Lingappa, AIR 1962 Mys 246 relying on Maung Kyin v. Ma Shwe Law, AIR 1917 PC 207; Bolumal Dharmadas Firm v. Venkatachelapathi Rao, AIR 1959 AP 612; Chandra Shekar v. Mural Gope, AIR 1957 Pat 673; Ramlochan Singh v. Pradip Sing, AIR 1959 Pat 230. 50 1963 Cal LJ 75. 51 Ebrahimbhoy Pabaney Mills Co. Ltd. v. Hassan Mamooji, (1920) 23 Bom LR 767 : ILR 45 Bom 1242. 52 Sohanlal v. Bilasray, AIR 1954 Cal 179. 53 Niranjan Kumar v. Dhyan Singh, AIR 1976 SC 2400; Ugni v. Chowa Mahto, AIR 1968 Pat 302(FB) . 54 AIR 1936 PC 70. 55 Yadav Ram v. Laxman Singh, AIR 1978 All 123; See also Kahiz Kasim v. Hadi Hussain Khan, 1977 All LJ 900; Bhuralal v. Bhiriya, AIR 1963 MP 210; Umrao Singh v. Raunak Singh, AIR 1939 Pat 495. 56 Bhuralal v. Bhiriya, AIR 1963 MP 210; relying on Tyagaraja v. Vedathanni, AIR 1936 PC 70; Umrao Singh v. Raunak Singh, AIR 1939 Pat 495. 57 Sukumar Bysack v. Sushil Kanta Banerjee, AIR 1972 Cal 207; following Tyagaraja Mudaliyar v. Vedathanni, AIR 1936 PC 70; Sukumar v. Hiralal, AIR 1954 Cal 48; Satish Chandra v. State, AIR 1954 Cal 379; Banku Behari v. Kalyani Debi, AIR 1967 Cal 351. 58 Maung Chit v. Roshan NMA Kareem Oomer and Co., AIR 1934 Rang 389(FB) . 59 Ramjilal Tiwari v. Vijai Kumar, 1970 Cr LJ 1176 : 1970 MPLJ 50; Lok Nath v. Jagbir Suri, 1982 Cr LJ 1328(J&K) . 60 Gouranga Sahu v. Magunidei, AIR 1991 Orissa 151. 61 Ugni v. Chowa Mahto, AIR 1968 Pat 302(FB) . 62 Lalmani Pande v. Capal Sah, AIR 1945 All 221. 63 AIR 1979 SC 798 : (1979) 2 SCC 529.

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64 AIR 1977 SC 1285 : (1977) 3 SCC 227. 65 AIR 1977 SC 1285 : (1977) 3 SCC 227.

6. CONTRACTS Where the endorsements by the next reversioners on the deed of alienation by the Hindu widow merely recite the fact that they knew the contents of the deed, the endorsements cannot be said to be the records of contracts entered into by the alienee with the reversioners for obtaining their consent to the transaction and hence oral evidence of the alienee regarding the consent of the reversioners is not rendered inadmissible under Section 91. 66 In Deepchandra v. Md. Sajjad Ali Khan, a receipt showed that some amount of earnest money out of the sale consideration was received from the vendee through another person and that the sale deed would be executed within three months and in default the contract would be deemed cancelled and it bore the signature of the vendor. The contention of the plaintiff that the receipt in that case was concluded contract and that no oral evidence can be adduced by the defendant to show that because a clause regarding inflation was not incorporated it was not a concluded contract was negatived. A GARWALA J for himself and W ANCHOO J observed at p. 105 "In order that Sections 91 and 92 should operate it must be proved (1) that there was a contract or a grant or other disposition of property and (2) that the terms of such contract, grant or other disposition of property were reduced to the form of a document. If either of these conditions is not fulfilled, the application of these sections is not attracted. The defence plea being that there is no concluded contract, neither of these sections can be said to bar the defence from proving their plea by oral evidence". 67 Where the appellant was granted licence under a written contract to make some construction for a fixed period and the same was terminable in terms of the agreement it was held to be open for the appellant by leading oral evidence to contend that the parties had orally agreed to treat the agreement as irrevocable one. 68 Further it was observed "Plea of the Vendor (defendant) might either fall under Proviso 3 to Section 92 or it might be taken as a plea not converted by Section 92 at all. In both cases oral evidence is admissible in support of the plea. Thus the document did not preclude the Vendor from showing that the parties did not agree as to one of the terms in the sale deed and that there was no completed contract". It was held that the liability of the insurer was to be ascertained from the express terms of the agreement if it a written agreement and no other evidence de hors terms of the agreement would be admitted. 69 Where a written settlement of the industrial dispute was arrived at between the parties, it was held that the same could not be varied or modified by an oral agreement. 70 Where a party as part of a compromise filed a letter in Rent Control Proceedings agreeing to spend certain sums of money on the property of another and subsequently a registered document of lease came into existence in respect of such property and in the suit for damages relying on the earlier letter filed as a part of compromise it was held that such a letter was admissible to prove the damages and Section 91 is no bar. 71 A bank guarantee must be construed on its own terms. It is considered to be a separate transaction. It cannot be construed in the light of other purported contemporaneous documents. Surrounding circumstances are relevant for construction of a document only if any ambiguity exists therein and not otherwise. 72 66 Vishnoodhar v. Bishnoo Prasad, AIR 1951 Nag 390. 67 AIR 1951 All 93(FB) . 68 Skylines Advertising (P.) Ltd. v. National Airport Authority, 2005 AIHC 3408, 3416 (para 39) (Kant). 69 New India Assurance Co. Ltd. v. Kusumanchi Kameshwara Rao, (1997) 9 SCC 179 : (1996) 10 JT 779. See also United India Insurance Co. Ltd. Chikmagalur v. C.S. Anil Kumar, AIR 2009 (NOC) 16(Kar) : 2008 (6) AIR Kar R 286.

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70 Fabril Gasosa v. Labour Commissioner, AIR 1997 SC 954 : (1997) 3 SCC 150; see also T.N. Electricity Board v. N. Raju Reddiar, AIR 1996 SC 2025 (para 7) : (1996) 4 SCC 551; relied on in Hansalaya Properties v. Reservation Data Maintenance India Pvt. Ltd., 2000 AIHC 2981 (para 5) (Del); B.N. Venkataswamy v. P.S. Rukminiamma, 1999 AIHC 1979 (paras 9 and 10) (Kant). 71 Kannumuri Jagannadha Rao v. Chapa Saraswatamma (1969) 2 An WR 33. 72 State Bank of India v. Mula Sahakari Sakhar Karkhana Ltd., (2006) 6 SCC 293 : AIR 2007 SC 2361.

7. PARTITION OF PROPERTY In Hans Raj Agarwal v. CIT, 73 the Supreme Court held that the partition of property orally, was permissible in law. When the document, in unambiguous and unmistakable terms, declares that it is a deed of partition and the parties have secured their shares as per their entitlement and as consented to by them, it cannot be held that the document is not the deed of partition and the same has to be interpreted in any other manner. The provisions of this section do not permit such an interpretation of the terms of the document when there is no ambiguity whatsoever in the terms of the said document. 74

73 (2003) 2 SCC 295 (paras 20 and 31) : AIR 2003 SC 295. 74 Ravikirthy Shetty v. Jagathpala Shetty, AIR 2005 Kant 194, 198 (para 13).

8. AGREEMENT If the agreement is such which may amount to a present demise even though the document may be contemplated to be executed later on, it may be a document or agreement creating the rights. Such an agreement is only an executory agreement and not an agreement creating rights in immovable property, hence not compulsorily required to be registered. It was a mere agreement between the parties which was not registered but was admissible in evidence. 75 When an agreement to sell is reduced to writing, oral evidence to contradict the terms of the said agreement is not permissible. 76 75 Food Corporation of India v. Babulal Agrawal, (2004) 2 SCC 712, 723 (para 10) : AIR 2004 SC 2926. 76 Roop Ram v. Vikram Singh, 2008 AIHC 1859, 1862 (paras 29, 32 and 33) (Utr), relying on Bhandari Construction Co. v. Narayan Gopal Upadhye, (2007) 3 SCC 163 : AIR 2007 SC 1441.

9. 'ANY MATTER IS REQUIRED BY LAW TO BE REDUCED TO THE FORM OF A DOCUMENT' Where any matter is required by law to be reduced to the form of a document, then the document itself must be put in evidence, e.g., deeds, conveyances of land, mortgages, wills, etc. No other evidence can be substituted so long as the writing exists. But where the matter is not required by law to be reduced to the form of a document, this section does not apply, e.g., in 1866 an oral agreement with transfer of possession sufficed to create a mortgage and therefore a mortgage could be proved aliunde even if there was no registered document 77 . but an unregistered memorandum of partition between the members of a joint family is inadmissible in evidence. However, it can be used for collateral purpose of proving the intention of the coparceners and oral evidence to prove partition can also be let in but 78 no oral evidence is admissible to prove the rent payable under a lease reduced to writing. 79 A judgment of conviction has to be in writing. This is therefore a matter required by law to be reduced to the form of a document. Such matter can be proved either by the document itself or by secondary evidence when it is admissible. When there was no suggestion that the original judgment of previous conviction was lost, oral evidence cannot be led to prove the previous conviction. 80

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77 Narsi v. Parshottam, (1928) 30 Bom LR 1277 : 52 Bom 875; H.H. Sir Sayaji Rao v. Madhavrao, (1928) 30 Bom LR 1463 : 53 Bom 12. 78 Krishna Bai v. Shivnath Singh, AIR 1993 MP 65 (paras 6 and 7). 79 Lal Rajendrasingh v. Mahant Hulasdas, ILR (1944) Nag 704. 80 City Board Sharanpur v. Abdul Wahid, AIR 1959 All 695.

10. CONFESSION A confession of an accused person made to a Magistrate holding an inquiry is a matter required by law to be reduced to the form of a document within the meaning of this section, and no evidence can be given of the terms of such a confession except the record, if any, made under S. 164 of the Code of Criminal Procedure .81 81 Emperor v. Gulabu, (1913) 35 All 260. See also Ram Singh v. Sonia, (2007) 3 SCC 1 (paras 23 and 33) : AIR 2007 SC 1218.

11. DEPOSITION In a prosecution for perjury, the deposition is to be produced in evidence against the accused during his trial not for the purpose of proving its truth but for the purpose of proving that he made it. Section 91, Evidence Act deals with the production of a document to prove the truth of its contents and not to prove its existence. If the prosecution had to prove that the deposition made by the witness is correct, it would have to produce the deposition and Section 91 would bar any other evidence. But when the prosecution has simply to prove that the witness made the deposition, there is nothing in Section 91 to prevent this fact being proved without producing the deposition itself. 82 The omission to read over his deposition to the witness, in accordance with Order XVIII, Rule 5, of the Civil Procedure Code, renders the same inadmissible in evidence against him at his subsequent trial for forgery and oral evidence of its contents is excluded by this section. 83 The Madras High Court held that seeing or hearing an act of deposing is a physical act which can be proved by any one who heard or saw the person giving the deposition. 84 In P HIPSON O N E VIDENCE , 15th Edn. (2000), Page: 1169, para 42-17, it is stated: "The same rule applies to the statutory deposition of a witness in a civil or criminal proceeding which cannot be contradicted, or varied by extrinsic evidence. As to additions to the depositions, since the depositions do not necessarily give the whole statement of the witness or even necessarily his own words, there seems no valid reason why parol additions should not now, as formerly, be admitted, when the deposition is used to contradict the witness (although it would not be possible to give extrinsic evidence by way of addition or contradiction when the deposition is used in the absence of the witness, since the statutory conditions as to admissibility are not fulfilled)." Section 91 does not refer to depositions recorded by the court during the course of judicial proceedings, it only refers to the terms of a document such as, contract, grant, or any other disposition of property reduced to writing. 85 Contents of the confessional statements recorded by a Magistrate can not be proved except by producing the record of confession. 82 Mohammad Farooq v. Rex through Tufail Ahmad, AIR 1950 All 501. 83 Emperor v. Nabab Ali Sarkar, (1923) 51 Cal 236 : AIR 1924 Cal 705; Chenchian v. King-Emperor, (1919) 42 Mad 561; Taj Mahmud v. Crown, (1927) 15 Lah 407; See however, Kamla Devi v. Rudreshwar Prasad, 1976 HLR 185. 84 Ganapathi Iyar v. Sukharayappa Mudiliyar, AIR 1929 Mad 187.

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85 Kamla Devi v. Rodre Shwar Prasad Singh, 1976 HLR 185(Pat) (DB).

12. DOCUMENT Section 91 at several places uses the word "document" by which, it must be taken, the legislature meant something purporting to have been executed by a party and signed by him in token of execution. 86 Under Sections 153-C of the (3) of the Companies Act of 1913 (as amended by Act 52 of 1951), a "consent in writing" is a condition precedent; the document itself should prove that consent has been given; no evidence either by way of affidavit or of oral sworn statement in court can be given under Section 91 to prove that such consent was given. 87 Where the terms of a contract or disposition of property which were under an oral agreement previously, are reduced to the form of a document, it would take the place of the previous oral agreement or contract between the parties. No oral evidence can be adduced under Section 91 to prove the original terms except by producing the document. 88 Oral evidence was held to be admissible to prove that a document was a sham document.

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86 Md. Tahir v. Mst. Sardar Bano, AIR 1952 All 782. 87 Makhan Lal v. Amrit Banaspati Company Ltd., AIR 1953 All 326. 88 Radhabai v. N.J. Nayadu, AIR 1951 Nag 285; Chanan Singh Mehar Singh v. Sham Lal Ramji Dass, AIR 1950 Pepsu 34; Kangabam Bira Singh v. Manipur Drivers Union, AIR 1957 Mani 9; Belapur Co. Ltd. v. Maharashtra State Farming Corporation, AIR 1969 Bom 231; Union of India v. Ram Kumar Agarwala, AIR 1967 Pat 447 (Railway Ruk Certificate issued under Section 24(2) of Railway's Act), Mohan Singh v. Deota Ji Bharmol, AIR 1956 HP 22; Sumati Bala v. Narendra Kumar Das, AIR 1975 Gau 43; Rajan v. C.N. Gopal, AIR 1961 Mys 29; Tata Iron & Steel Co. Ltd. v. Ramanlal Kandai, (1971) 2 Cal 493. 89 Balram Kirar v. Ram Krishna, AIR 2002 MP 139, 144, relying on; Ishwar Dass Jain v. Sohan Lal, AIR 2000 SC 426, 431 : (2000) 1 SCC 434 and Gangabhai v. Chhabubai, AIR 1982 SC 20 : (1982) 1 SCC 4.

13. PROMISSORY NOTES--UNSTAMPED OR INSUFFICIENTLY STAMPED DOCUMENTS Under Sections 35 of the Indian Stamp Act no instrument chargeable with the duty shall be admitted in evidence for any purpose by any person unless such instrument is duly stamped. The Privy Council inRam Rattan v. Parama Nand 90 held that the words "for any purpose" in Section 35 should be given their natural meaning and effect and would include a collateral purpose. In the case of a negotiable instrument there is an unconditional undertaking by the maker to pay a certain sum of money. According to the definition in Sections 4 of the Negotiable Instruments Act and the illustrations (a ) & (b ) thereunder the consideration mentioned in the promissory note may be a complete discharge or satisfaction of a loan. Illustration (b ), to Section 91 of the Evidence Act says that if a contract is contained in a bill of exchange, the bill of exchange must be proved. Thus it covers only the case of complete discharge or satisfaction of the loan. A promissory note may come into existence for a pre-existing debt or a past liability, in which case the document would be only as a conditional discharge or payment of the loan, or a collateral security. But if the agreement between the parties is for a contemporaneous loan and it is reduced to writing and if the document (pronote) becomes inadmissible, no suit would lie on the original cause of act ion for the loan. 90 AIR 1946 PC 51.

14. SUIT ON PROMISSORY NOTE INADMISSIBLE IN EVIDENCE

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The rulings of the Indian High Courts on the question where money is lent to a person who executes a promissory note, but the note is inadmissible in evidence for want of sufficient stamp or for any other reason, may be classified into two classes lucidly enunciated by G ARTH , C.J. in 91 where the question was whether a copy of a lost promissory note, which was itself inadmissible as being insufficiently stamped, could be received in evidence. The court held that it could not be received in evidence, G ARTH . C.J., said: "When a cause of action for money is once complete in itself, whether for goods sold, or for money lent, or for any other claim, and the debtor then gives a bill or note to the creditor for payment of the money at a future time, the creditor, if the bill or note is not paid at maturity, may always, as a rule, sue for the original consideration, provided that he has not endorsed or lost or parted with the bill or note, under such circumstances as to make the debtor liable upon it to some third person. In such cases the bill or note is said to be taken by the creditor on account of the debt, and if it is not paid at maturity, the creditor may disregard the bill or note and sue for the original consideration. But when the original cause of act ion is the bill or note itself, and does not exist independently of it, as for instance, when, in consideration of A depositing money with B, B contracts by a promissory note to repay it with interest at six months' date, here there is no cause of action for money lent, or otherwise than upon the note itself, because the deposit is made upon the terms contained in the note and no other. In such a case the note is the only contract between the parties, and if for want of proper stamp or some other reason the note is not admissible in evidence, the creditor must lose his money". In a later case, however, the same High Court tried to explain away the above case and held in a suit brought on a hatchitta (promissory note) bearing an insufficient stamp and in which the defendant admitted the loan but pleaded payment, that the promissory note was not admissible in evidence but the plaintiff had a cause of act ion independently of it. 92 Inadmissibility of a pronote cannot be circumvented by allowing the plaintiff to amend the plaint. Moreso when the lending of money and execution of pronote are the integral part of the same transaction and there was no separate existence of the original cause of action. 93 Subsequently, in another case it laid down that the question, whether, when a bill or note is found to be inadmissible in evidence, the payee can sue on the original consideration, depends upon whether the cause of act ion with regard to the original consideration is one, which is complete in itself, and the debtor then gives a bill or note to the creditor for payment of the money at a future time. If this be so, then the plaintiff may disregard the promissory note, if he chooses, and sue upon the original debt. Where, however, the original cause of action is a bill or note itself and does not exist independently of it, then the plaintiff cannot disregard the note and sue for the original consideration. 94 The Bombay High Court approved of the principle stated in Sheikh Akbar v. Sheikh Khan 95 in a case in which the plaintiff sued to recover from the defendant the balance of a debt due on an unstamped note passed to him by the defendant for a consideration of Rs. 38. The note recited that the defendant had received the amount, and would repay it after three months from the date of its execution. The defendant admitted, by his written statement, execution of the note and the receipt of Rs. 37 in the shape of paddy, but alleged that he had paid off the debt. He also contended that the note being unstamped could not be admitted in evidence. It was held that the document sued on was promissory note, and that the suit being brought on it as the original cause of act ion, the admission of its contents by the defendant did not avail the plaintiff, the document itself being inadmissible for want of a stamp and that the plaintiff could not recover irrespective of the promissory note, as he did not seek to prove the consideration otherwise than by the note, which was inadmissible in evidence and the admission contained in the defendant's written statement did not amount to an admission of the claim as for money lent. 96 The distinction between cases in which a suit is brought solely on a promissory note or hundi, and cases in which there is and can be a claim to recover the original loan, has been acknowledged 97 . Where there is an independent admission of a loan by the holder of a hundi, bill or note, which is defective, and inadmissible in evidence for want of a stamp, may still sue on the consideration the person to whom he gave it, though he cannot use the bill in support of his suit. 98 It was observed in Jacob & Co. v. Viaimsey, 99 that the transaction under a pronote may be of three kinds:--

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16)   Pronote containing all facts relating to it as shown in illu. (b ) to Section 91 in which case if it is insufficiently stamped no suit would lie. 16)   The pronote may be regarded as a conditional payment of the loan amount in which case suit can be filed on the original contract for the loan. 8)   A pronote may be given as a security for the loan in which case the plaintiff need not sue on the pronote whether it is properly stamped or not, as he can bring a suit on the loan itself. The Madras High Court has in a Full Bench case held that whether a suit lies on the debt apart from the instrument depends on the circumstances under which the instrument is executed. If the promissory note embodies all the terms of the contract and the instrument is improperly stamped no suit on the debt will lie. This section and Sections 35 of the Indian Stamp Act bar the way. But if it does not embody all the terms of the contract, the true nature of the transaction can be proved and, where an instrument has been given as a collateral security or by way of conditional payment, a suit on the debt will lie. The fact that the execution of the promissory note is contemporaneous with the borrowing, cannot exclude the possibility of the instrument having been given as collateral security or by way of conditional payment. There is no presumption that the giving of a promissory note by a debtor to his creditor operates as a conditional payment only. A lender suing on the original consideration on the ground that the instrument was given by way of conditional payment must prove facts which warrant that inference.1 The promise to repay the amount of loan is certainly a term of the contract, and if there was a completed contract which existed upon the execution of the pronote, an act ion would lie on such contract even though the promissory note executed subsequently cannot be admitted in evidence for any reason. 2 Where the opposite party admitted the fact of execution of the document, it was held that the document need not be proved even when the document in question is not admissible on account of any provisions of the Stamp Act. 3 In Lothumasu Sambasiva Rao v. T. Balakotaiah, a full bench of seven judges of the Andhra Pradesh High Court discussed in considerable length the different points of view expressed by almost all the High Courts as also decisions of the Privy Council and the Supreme Court and held that the plaintiff can rely on the original cause of act ion where the suit promissory note is inadmissible in evidence under Section 35 of the Stamp Act, provided there is an allegation in the plaint and proof that the promissory note did not incorporate all the terms of the contract and that it was executed as a conditional payment or collateral security. J USTICE A LLADI K UPPUSWAMI , in a separate judgment while agreeing with the first part of the decision observed that the right to fall back on the original consideration is not restricted to a case where the promissory note is executed by way of conditional payment or by way of collateral security. 4 Where the debt and the pronote were simultaneous and there was neither a contract with the firm nor was it the intention of the parties to treat the promissory note as a part of the debt transaction, it could not be said that the pronote merely evidenced any previous concluded transaction. 5 In Chuni Lal Manga v. Mangat Rami, 6 the Delhi High Court held that where the execution of a pronote follows the advance of money, but there is infirmity in the document, the plaintiff can rely on the advance of money as the two causes of act ions being distinct and separate Section 91 is not a bar to an action on the original cause of act ion. The Allahabad High Court has in a Full Bench case laid down that it is not open to a party who has lent money on terms recorded in a promissory note, which turns out to be inadmissible in evidence for want of proper stamp duty, to recover his money by proving orally the terms of the contract, in contravention of the provision of this section. 7 In a later Full Bench case it laid down that the entire terms of the contract were embodied in the promissory note in the above Nazir's case , but where all the substantial terms of the contract have not been embodied in the promissory note and where the promissory note is inadmissible in evidence for defect of proper stamp, it is open to the plaintiff to prove the terms of the contract. It is also pointed out by some of the Judges that the distinction laid

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down in Nazir's case between cases where the money passed contemporaneously with the execution of the pronote and where it was antecedent in time to the latter is unreal and artificial 8 . Where a loan was already existing, and part of it had been repaid and a promissory note was executed in favour of the creditor for the balance, it was held that the existence of the promissory note did not debar the creditor from resorting to his original consideration or exclude evidence of the oral acknowledgment of the debt. 9 The Patna High Court has held that where the lending of money and the execution of a promissory note for repayment of it are contemporaneous, the plaintiff in a suit for recovery of the money, is entitled to adduce evidence other than the promissory note itself, in order to prove the loan. Where, therefore, a handnote bore a one- anna stamp instead of a two- anna stamp and was therefore inadmissible in evidence, it was held that the plaintiff was entitled to prove the loan by other evidence 10 . Every loan carries with it a contract to repay and if a handnote, which forms the evidence of the transaction cannot be accepted in evidence for some reason or other, there is nothing in law to prevent the plaintiff from giving other evidence as regards the loan and if he can satisfy the court as regards the truth of his version, he is entitled to a decree 11 . Where there is a partition deed which is inadmissible in evidence for want of registration it is open to the defendants to prove a previous partition by any other evidence and this section will not operate as a bar to the admissibility of such evidence. 12 The Lahore High Court has held that where a negotiable instrument taken on account of pre-existing debt is inadmissible in evidence, the creditor may sue for the original consideration, but when the original cause of action is the instrument itself and does not exist independently of it, the plaintiff cannot sue except upon the instrument. Whether there is a cause of act ion independent of the instrument upon which independent evidence may be given, depends upon the question whether the plaintiff can allege any contract as the basis of his suit which is not the contract reduced to the form of a document. Where the money advanced a short time before the actual execution of a hundi was advanced on the security of the hundi and the agreement between the parties was that the loan should be made in consideration of the hundi , it was held that there was no cause of action independent of the hundi , and as the hundi was inadmissible in evidence on the ground that it was insufficiently stamped, and no secondary evidence could be given under this section, the plaintiff must fail. 13 The Rangoon High Court has laid down several principles in a Full Bench case. The giving of a negotiable security by a debtor to his creditor operates, prima facie , as a conditional payment only, and not as a satisfaction of the debt, unless the parties agree so to treat it. Such a conditional payment is liable to be defeated on non-payment of the negotiable instrument at maturity. If the negotiable instrument is given by the borrower to the lender and the negotiable instrument is itself the consideration for the loan, or if the instrument is accepted as an accord and satisfaction of the original debt, the lender is restricted to his rights under the negotiable instrument by which he must stand or fall. If it is agreed between the parties that the instrument shall be taken merely as collateral security for the repayment of the loan, the lender is entitled to sue upon the original consideration independently of the security, and without regard to any rights that he may possess under the instrument. If all the terms the agreement under which the loan was made have been embodied in a negotiable instrument or in any other document, no evidence can be adduced in proof of the terms of the contract except the document itself, and if such document is for any reason inadmissible in evidence, the suit must fail. Normally and prima facie a lender is regarded as taking a negotiable instrument only as conditional payment and not in satisfaction of the loan. Where the handing over of the money and of the instrument is simultaneous it does not follow that the instrument is the repository of the terms of the agreement. It is not the time when, but the terms upon which, the loan was made that matters and that is a question of fact to be determined according to the particular circumstances obtaining in each case. 14 In a Full Bench case, the former Chief Court of Oudh laid down that it was open to the party who had lent money on terms recorded in a promissory note, which turned out to be inadmissible in evidence for want of proper stamp duty, to recover his money by proving orally the advance of the loan although oral evidence to prove the terms of the contract was inadmissible. 15 Where a promissory note is not

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admissible in evidence being insufficiently stamped, the provision for interest alleged to have been contained in the promissory note cannot be proved and the party lending the money cannot be granted interest as interest, but he is entitled to some compensation for being deprived of his money and the amount of compensation can best be calculated in the same manner as interest is calculated. 16

The terms contained in the pronote cannot be proved by oral evidence. 17 Where the oral evidence was that the father of the defendant was a worldly-wise man with ability to write the document in his own hand and on the date of payment, he was affected with brain tumour, it was held that variation in his signature in the endorsement on the promote was not inadmissible. 18 Dealing with Marwar Stamp Act 15 of 1947, it was held that hundis not duly stamped cannot be admitted in evidence and the fact that the duty and the penalty were paid was of no consequence.

19

In the case of an unstamped document which had been lost or destroyed no secondary evidence could be allowed. The contents of a document which is required to be executed on stamp paper, if not stamped or insufficiently stamped cannot be proved by secondary evidence. That Section 36 of the Stamp Act which provides for payment of stamp or deficit stamp with penalty for purpose of admitting it in evidence has no application to let in secondary evidence where the document itself is not produced. 20 Where the execution of the pronote and passing of consideration was simultaneous, it was held the plaintiff cannot fall back on original consideration. 21 Where on the case pleaded it was not possible to hold that a pronote is intended to constitute the contract or that the original contract of loan was merged in or was extinguished by the pronote, it was held that the original contract of loan could be proved apart from the pronote. 22 There is a difference between inadmissibility of a document for want of proper stamp and the inadmissibility because of non-registration. In the former case if proper stamp and penalty are paid on the document then it can be admitted. In the latter case if it is unregistered, it is not admissible in evidence to prove the contents of it, though it can be used for a collateral purpose. 23 Where a suit is based on the pronote, it must fail when the pronote is inadmissible in evidence being insufficiently stamped and payment of loan cannot be proved by other evidence. 24 Where the plaintiff filed a suit not only on the pronote but also on the transaction of the Chit Fund and the plaintiff explained under what circumstances the pronotes were drawn up it was held that though pronotes are inadmissible in evidence, the plaintiff can prove the act ual transaction and the arrears of the amount of the Chit Fund . 25 Where a bill of exchange or a pronote is given by a debtor to the creditor in satisfaction of his dues it was held that it is presumed to be a conditional payment and in case the creditor is unable to obtain satisfaction of the pronote he may fall back on the original debt and sue to recover the amount. 26 The general trend of the decisions of the various high courts subject to a few exceptions may be summed up as follows. When a pronote is not taken in discharge of an oral contract of a loan but is taken only by way of conditional payment or collateral security, it will be presumed to have been so taken unless there is a contract to the contrary. Section 91 has no application to the case and the terms of the original contract of loan can be proved, if the pronote is not admissible in evidence or for any other reason cannot be proved. The fact that the pronote was executed simultaneously with the advance of loan or that the loan was advanced on the basis of the pronote or that the pronote contained all the terms of the contract of loan are all immaterial, provided only that the pronote is not in absolute discharge of the original contract of loan. When the pronote is given by way of conditional security or as collateral security for the loan, the original contract for the loan is provable by evidence and Section 91 is not applicable in such cases. 27 A certified copy of the original document would not come within the scope of Section 36 of the Stamp Act, because it states that where an instrument has been admitted in evidence, such admission shall not, except as provided in Section 61 be called in question at any stage of the same suit or proceeding on the ground that the instrument had not been duly stamped and the expression "duly stamped" can

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only arise in regard to an original document and not to its certified copies, which does not require any stamp except some necessary fees for copying the same. 28 In view of Sections 35 and 36, secondary evidence of the contents of an inadmissible document which is insufficiently stamped, by producing a copy of it is not admissible. 29 Section 35 only deals with the original instrument. It is not concerned with any copy of an instrument. If Section 35 only deals with original instruments and not copies, Section 36 cannot be so interpreted as to allow secondary evidence of an instrument to have its benefit. In other words Section 35 imposed a bar on the reception of any but the original instrument and forbade the reception of the secondary evidence. Section 36 only lifted that bar in the case of an original unstamped or insufficiently stamped document to which no exception as to the admissibility was taken at the first stage. It did not create any exception in the case of secondary evidence which a copy would undoubtedly be. 30 The dictum in Satyawati v. Pallayya, 31 that " Section 36 will also apply when secondary evidence of an instrument not duly stamped had been wrongly admitted" is not a good law. R ANKIN C.J. in Nirode Basini v. Sital Chandra 32 held that under Section 36 it matters nothing whether it was wrongly admitted or rightly admitted or admitted without objection or after hearing or without hearing such objection. When a copy was admitted no objection can be raised on the ground of insufficiency or want of stamp or the original. 91 Sheik Akbar v. Sheik Khan, (1881) 7 Cal 256 at 259; Radhakant Shaha v. Abhoychurn Mitter, (1882) 8 Cal 721. 92 Pramatha Nath Sandal v. Dwarka Nath Dey, (1896) 23 Cal 851, following Golap Chand Marwaree v. Thakurani Mohokoom Kooaree; (1878) 3 Cal 314. It is dissented from by the Allahabad High Court in Nazir Khan v. Ram Mohan, (1930) 53 All 114(FB) : AIR 1931 All 183. 93 Natesan v. Sri Balamurugan Finance (Regd). Partnership Firm, AIR 2006 (NOC) 1070(Mad) : 2006 AIHC 1522. 94 Ranendramohan Tagore v. Keshabchandra Chandra, (1934) 61 Cal 433, See also Indra Chandra v. Hiralal, AIR 1936 Cal 127; Mahatabuddin Mia v. Md. Nazir Joddar, AIR 1936 Cal 170. 95 (1881) 7 Cal 256. 96 Damodar Jagannath v. Atmaram Babaji, (1888) 12 Bom 443; Jacob & Co. v. Vicumsey, (1926) 29 Bom LR 432 : AIR 1927 Bom 437. 97 Chenbasapa v. Lakshman Ramchandra, (1893) 18 Bom 369. 98 Krishnaji v. Rajmal, (1899) 24 Bom 36 : 2 Bom LR 25; Ranchhod v. Ravjibhai, (1925) 28 Bom LR 631; Jacob & Co. v. Vicumsey, (1926) 29 Bom LR 432; Somabhai v. Kalyanbhai, (1937) 40 Bom LR 174. 99 AIR 1927 Bom 437. 1 Perumal Chettiar v. Kamakshi Ammal, ILR (1938) Mad 933(FB) ; Rangaswami v. Dorai-swami, AIR 1957 Mad 715; Rudraraju Satyanarayana Raju v. Medidi Veerayya, ILR 1970 AP 1125. 2 Rangaswami v. Doraiswami, AIR 1957 Mad 715. 3 Ponuswami Chettiyar v. Kailasam Chettiar, AIR 1947 Mad 422; Alimane Sahiba v. Subbarayyuda, AIR 1932 Mad 693. 4 L. Sambasiva Rao v. T. Balakatiah, AIR 1973 AP 342(FB) followed in, B. Venkataiah V. v. Venkata Ramana Reddy, AIR 1985 AP 26. 5 Rudraraju Satyannarayana Raju v. Medidi Veerayya, ILR 1970 AP 1125. 6 ILR 1975 (2) Delhi 383. 7 Nazir Khan v. Ram Mohan Lal, (1930) 53 All 114, FB : AIR 1931 All 138; Gopi Nath v. Chameli, (1938) All 741. 8 Sheo Nath Prasad v. Sarju Nonio, ILR (1943) All 610, 641 FB : AIR 1943 All 220 followed in Lakshmi Narain v. Aparna Devi, AIR 1953 All 535; This view is in conflict with Perumal Chetty case 1938 Mad 785.

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9 Hiralal v. Datadin, (1881) 4 All 135; Benarsi Das v. Bhikhari Das, (1882) 3 All 717. 10 Dharishwar Sahu v. Ramrup Gir, (1928) 7 Pat 843. 11 Abdul Mohammad Khan v. Mahananda Upadhayaya, (1931) 11 Pat 135 : AIR 1931 Pat 293; See Raja Lal Bahadersingh v. Sheikh Gulam Yasin, (1932) 29 NLR 131. 12 Ramjugeshwar v. Gajadhar, (1950) 29 Pat 980. 13 Chandra Singh v. Amritsar Banking Co., (1921) 2 Lah 330 : AIR 1922 Lah 307. 14 Maung Chit v. Roshan N.M.A. Kareem Oomer & Co., ILR (1934) : 12 Ran 500 (FB) : AIR 1934 Rang 389; See Maung Kyi v. Ma Ma Gale, (1919) 10 LBR 54(FB) . 15 Kunwar Bahadur v. Suraj Bakhsh, (1932) 7 Luck 666 : AIR 1932 Oudh 235; (FB); approving Nanhku Singh v. Girja Bux Singh, (1929) 5 Luck 225. 16 Bhrigu Datt v. Gaya Prasad, (1933) 9 Luck 267. 17 Ganga Ram v. Keshava Deo, AIR 1960 Raj 10. 18 Moturi Seeta Ramabrahmam v. Bobba Rama Mohana Rao, AIR 2000 AP 504 (para 12). 19 Pukhraj v. Jawerchand, AIR 1957 Raj 47 reversed on another point in Pukhraj Surana v. Jewere hand. 20 Champalal v. Pannalal, (1951) 1 Raj 190; See also Md. Ayub v. Rahim Baksh, AIR 1922 Lah 401(2); Ladharam v. Harichand, AIR 1938 Lah 90. 21 Narayana Prasad Rai v. Ganshyamlal, AIR 1961 MP 62. 22 Lalchand Ramchand v. Pyare Dasrath, AIR 1971 MP 245; following Ananda Namdeo v. Pundalik Tukaram, AIR 1936 Nag 225. 23 Badri Prasad v. Bhagwan Das, AIR 1956 MB 117. 24 Rajkishore Sahu v. Khitish Chandra Sahu, ILR 1976 Cut 634; Ghulam Mohammed v. Habib Ullah, AIR 1966 J&K 127. 25 Sketna Dev v. Firm of Srigiri Venkiah, AIR 1953 Hyd 142. 26 Mohanlal Jogani Rice & Aatta Mills v. Ramlal, AIR 1957 Assam 133. 27 Lakshmi Naraian v. Mst. Aparna Devi, AIR 1953 All 535; See also Maniklal v. Dhirendra Chandra, AIR 1957 Tripura 28; Gour Chandra Sahu v. Garib Kar, AIR 1957 Ori 212; Salimunnissa Begam v. Abdul Qayyum Ansari, AIR 1956 Hyd 32; Perumal Chettiyar v. Kamakshi Ammal, AIR 1938 Mad 785(FB) ; Somabhai v. Kalyanbhai, AIR 1938 Bom 286; Sarajoo Pd. v. Rampayari Debi (Smt. ) , AIR 1950 Pat 493; K. Anantharajaiah v. Shivaramaiah, AIR 1968 Mys 148; Ramaswami Pillai v. Murugiah Padayachi, AIR 1936 Mad 179; Chandra Sekhar Misra v. Gobinda Chandra Das, AIR 1966 Ori 18; Champalal v. Saligran, AIR 1961 Raj 235; Shah Chimanlal v. Khambhla Savji, AIR 1955 Sau 74; Saffia Khathoon v. Kunhambu, (1977) 1 Ker 701; Chunni Lal Manga v. Mangat Ram, (1975) 2 Delhi 383; L. Parmanand v. Satya Prakash Rastogi, 1979 All LJ 1109; Khitish Chandra Sahu v. Rajkishore Sahu, AIR 1980 Ori 10(DB) ; L. Sambasivarao v. T. Balakotaiah, AIR 1973 AP 342(FB) . 28 Chimoyee Baxi v. Raja Sankari Prosad Singh, AIR 1955 Cal 561; Satyawati v. Pallayya, 1937 Mad 431; Venkateswar Iyer v. Ramanatha Deekshitar, 1929 Mad 622; Nirode Basini v. Sital Chandra, 1930 Cal 577; Noor Ahmad v. Irshad Ghaus, AIR 1933 All 821; Sheik Meera Sahib v. Venkatapathi Naidu, AIR 1951 Mad 326; Vishram Arjun v. Irukulla Shankariah, AIR 1957 AP 784; Jagdip Singh v. Firangi Singh, AIR 1928 Pat 155. 29 Jupudi Kesava Rao v. Pulauarthi Venkata Subbarao, AIR 1971 SC 1070 : (1971) 1 SCC 545 (paras 14, 24). 30 Jupudi Kesava Rao v. Pulavarthi Venkata Subbarao, AIR 1971 SC 1070 : (1971) 1 SCC 545 (paras 14, 24). 31 AIR 1937 Mad 431. 32 AIR 1930 Cal 577.

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15. SECTIONS 17 & 49 REGISTRATION ACT AND SECTION 91 OF THE EVIDENCE ACT--EFFECT OF Sections 17 of the Registration Act refers to documents which are required to be registered.Section 49 provides that such of those documents which require registration, if not registered, shall not affect any immovable property comprised therein and shall not be received as evidence of any transaction affecting such property. The Privy Council in Moolla and Sons Ltd. v. Official Assignee Rangoon 33 held that the Indian Registration Act only requires certain documents to be registered on pain of the consequences entailed by Sections 49 whereas the Transfer of Property Act by Section 54 enacts that with a limited exception the sale of immovable property can only be made by a registered instrument. The provisions of the Registration Act by themselves would not operate to render invalid a mere oral sale. Sections 49(c) of the Registration Act excludes receiving in evidence an unregistered document which is required to be registered under the Registration Act , whereasSection 91 precludes the proof of only the terms of the contract, grant or other disposition of the property. When a party does not rely on the unregistered document and if the terms of the disposition of property embodied in that document are not sought to be proved by other evidence, the bar contained in Section 49(c) of Registration Act and Section 91 of Evidence Act would not come into effect. 34 Where a document, itself legally inadmissible in evidence, was subsequently referred to and partly incorporated in a second document of similar import duty executed between the same parties and registered according to law, it was held that the earlier document might be referred to for the purpose of explaining and amplifying the terms of the second, and of arriving at a correct conclusion as to the true nature of the transaction into which the parties had entered. 35 Where a partition deed contained an admission of both parties that they were joint till 1954 and the parties wanted to show that there was an oral partition in 1951 it was held that the court should not persuade itself to hold that there was an oral partition between the parties in the face of the admission in the partition deed as it amounts to contradicting the recital in the document. 36 In a suit to recover possession of certain property as joint undivided property the defendant relied on an earlier unregistered partition deed to show that the property in dispute was not joint but separate. It was held that the partition deed was admissible in evidence as it was not intended to prove its terms but all that the court had been concerned with was to find out whether particular properties claimed by the plaintiff to be joint family property were at the date of the suit joint or separate. 37 The Gauhati High Court in Jabeda Khatun v. Moksed Ali 38 held that a gift under Mohammedan Law does not create a disposition of property, and so oral evidence to prove such a gift is not hit by Section 91 and the decision of the Supreme Court, in Bai Hira Devi v. Official Assignee Bombay 39 is of no help in respect of gifts by Muslims. The Madras High Court had held that where the instrument of partition, being unregistered, cannot be admitted as evidence of the transaction, oral evidence to prove the terms of the agreement is barred. 40

Where two brothers divided their properties movable and immovable under a Kararnama, an unregistered document, and there were counter documents showing that each brother gave up his claim in respect of the movable and immovable property, it was held that the oral evidence of partition was hit by Section 91 of the Evidence Act and could not be adduced to prove the terms of the partition when the document itself is inadmissible for non-registration. 41 In Kale v. Dy. Director of Consolidation 42 the Supreme Court held that a family arrangement may be even oral in which case no registration is necessary. The registration would be necessary only if the terms of the family arrangement are reduced to writing. Here also a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the court for making necessary mutation. In

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such a case the memorandum itself does not create or extinguish any rights in immovable properties and is therefore not compulsorily registerable. 43 Assuming that the said document was compulsorily registerable, the courts have generally held that a family arrangement being binding on the parties to it, would operate as an estoppel preventing the parties from resiling from the same. Even if the family arrangement was not registered, it could be used for a collateral purpose, namely, for the purpose of showing the nature and character of possession of the parties in pursuance of the family settlement and also for the purpose of applying the rule of estoppel which flowed from the conduct of the parties who having taken benefit under the settlement, keep their mouths shut for full seven years and later try to resile from the settlement. 44 It was held by the Supreme Court that a subsequent memorandum of partition embodying the factum of partition would be only a family arrangement and its registration was not necessary. 45 Under the proviso to Sections 49 of the Indian Registration Act , an unregistered document affecting immovable property and required to be registered may be received as evidence of a contract in a suit for specific performance, or as evidence of part performance of a contract, or as evidence of any collateral transaction not required to be effected by a registered instrument. The proviso is declaratory of what was previously the law. An unregistered document, though inadmissible as evidence of a transaction affecting immovable property, was admissible as evidence of collateral facts. 46 A document required by the law to be registered, if unregistered, though inadmissible as evidence of transaction affecting immovable property, can be admitted for a collateral purpose. 47 It was held that an unregistered partition deed is inadmissible to prove the terms of the partition but can be admitted in evidence for a collateral purpose having regard to the combined operation of Section 49of the Registration Act and Sections 91 and 92 of the Evidence Act. 48 The unregistered document can be looked into for a limited purpose to know the character and nature of possession of the party to the document. 49 In N. Varada Pillai v. Jeevaratnammal, 50 dealing with an unregistered gift deed the Privy Council held that the unregistered gift deed may be looked at to show the nature and character of possession held by the donee. 51 By an unregistered document, though inadmissible for want of registration, the transferee under the document can show by producing the document that he acquired title to the said property contained therein by continuing in possession for more than 12 years, i.e., by adverse possession. A party can prove his title by adverse possession and limitation for the suit by showing the starting point from the date of his unregistered partition deed. 52 An unregistered document may be used to prove an admission contained therein. 53 This section does not exclude oral evidence in respect of the nature of the contract or oral agreement. When the witnesses supporting a claim of oral sale of property deposed about the execution of a document also at the time of the oral sale, but that document had not been registered, it was held that the bar under this section is not attracted for proving that oral sale. 54 For a detailed discussion of admissibility under Registration Act for a collateral purpose reference may be made to the under mentioned decisions.55 For proving character and nature of possession, see.

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33 AIR 1936 PC 230. 34 Kanna Reddy v. Venkata Reddy, AIR 1965 AP 274(FB) . 35 Moti Chand v. Lalta Prasad, (1917) 40 All 266. 36 Gitabal v. Dayaram Shankar, AIR 1970 Bom 160. 37 Chhotalal v. Bai Mahakore, AIR 1917 Bom 206 : (1917) 19 Bom LR 322 : ILR 41 Bom 466; Maung Po Kin v. Maung Shwe Bya, (1923) 1 Ran 405; Maung Tun Sein v. Ko Tu, AIR 1928 Rang 196 : (1928) 6 Ran 337; Subramanian v. Lutchman, (1922) 50 Cal 338 : ILR 25 Bom LR 582, 50 IA 77 : AIR 1923 PC 50. 38 AIR 1973 Gau 105(DB) . 39 AIR 1958 SC 448.

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40 Subbu Naidu v. Varadarajulu Naidu, ILR (1947) Mad 694 : AIR 1948 Mad 26. See also Krishna Prasad v. Shyam Narayan Prasad, AIR 2006 Sik 25, 32 (para 24). 41 Gerua Biswal v. Kahyama Biswal, AIR 1962 Ori 107. 42 AIR 1976 SC 807 : (1976) 3 SCC 119. 43 Auadh Narain Singh v. Narain Mishra, AIR 1962 Pat 400. 44 Ratanlal v. Hari Shanker, AIR 1980 All 180 (case of a partition deed). 45 Roshan Singh v. Zile Singh, AIR 1988 SC 881. 46 Ulfatennisa Elahijan Bibi v. Hosain Khan, (1883) 9 Cal 520, FB. 47 M. Chellamayya v. M. Venkatratnam, AIR 1972 SC 1121; Vidhya Bhushan Singh Rana v. Ratisom, 1969 UJ 86; Ram Shankar v. M.G.H.S. School, 1979 All LJ 184(All) ; Ugni v. Chowa Mahato, AIR 1968 Pat 302(FB) . 48 Ramayya v. Achhamma, AIR 1944 Mad 550(FB) ; Girija v. Girdhari, AIR 1951 Pat 277; Nagamma v. Madala, AIR 1954 Mad 165; Karshan v. Harkha, AIR 1953 Saurashtra 56; Ramlakxhmi Ranchedlal v. Bank of Baroda Ltd., AIR 1953 Bom 50; Munshiram v. Thakurdas, AIR 1951 Pepsu 87; Umrao Chand v. Inder Chand, (1971) 21 Raj 823; Motilal Fulchand v. Gita Rama, AIR 1952 Bom 217; Gopinath Sharma v. Hangsanath, AIR 1950 Assam 129; Kanna Reddy v. Venkata Reddy, AIR 1965 AP 274(FB) ; Narasamma v. Venkata Narasireddi, AIR 1954 Mad 282; Tejraj v. Mohanlal, AIR 1955 Raj 157; Booraswami v. Rajakannu, 1978 MLJ 248; Rikhi Ram v. Sadaram, AIR 1977 Punj 94. 49 Rahimansa v. M.I.E. Institution, AIR 1953 Mad 366; Dammulal v. Mohmmad Bhai, AIR 1955 Nag 306; (see other cases under the head parition); Rajendra Singh v. Mahant Hulas Das, AIR 1945 Nag 69; Ramchander Naik v. Linga Ramachanderiah, AIR 1971 AP 395; Sardar Amarsingh v. Surinder Kaur (Smt. ) , AIR 1975 MP 230 overruling Dhana Bai v. Kewara Bai, AIR 1972 MP 100; Ugni v. Chowa Mahto, 1968 Pat 302(FB) ; Abdul Razak v. Narasamma Gopala Setty, 1974 Mys 7. 50 AIR 1919 PC 44 : ILR 43 Mad 244. 51 Haranchandra Chakrabarti v. Kali Prasanna Sarkar, (1931) 59 Cal 396; Maharani Janki Kuer v. Bir Bhikham Ojha, (1924) 3 Pat 349; Thakore Fatesingji v. Bomanji A. Dalal, (1903) 27 Bom 515 : 5 Bom LR 274; Jhamplu v. Kutramani, (1917) 39 All 696; Ata Muhammad v. Shankar Das, (1925) 6 Lah 319. 52 Appamma v. Chinmaueadu, AIR 1924 Mad 292 : ILR 47 M 203; Narayanaswamy v. Thangavelu, AIR 1924 Mad 800 : 82 IC 67; Venkatakrishnayya v. Rangayya, AIR 1928 Mad 865 : 117 IC 720; Sayyapureddi Abayya v. Sayam Apanna, 123 IC 195(Mad) . 53 Shailesh Chandra v. Bireswar Chatterjee, AIR 1930 Cal 559 : 126 IC 715. 54 Deopato Kuer v. Kamal Prasad Singh, AIR 1976 Pat 18(DB) ; Ramdip Sharma v. Baldeo Singh, AIR 1977 Pat 234; State of Bihar v. Amitava Rai, (1977) 25 BLJ 583; Deep Chandra v. Md. Sajjad Ali Khan, AIR 1951 All 93(FB) ; Mammadisa v. Asya Kuttyumma, (1967) 2 Ker 282. 55 Ram Rattan v. Parma Nand, AIR 1946 PC 51; S. Lakshmaai v. S. Peddamallaiah, AIR 1979 AP 275; Ganpat Gangaji v. Namdeo Bhagwanji, AIR 1941 Nag 209; Girijanandan v. Giridharisingh, AIR 1951 Pat 277. 56 Mst. Thekura v. Sukhraj Singh, AIR 1953 All 350; Amar Singh v. Surendar, AIR 1975 MP 230(FB) ; Abdul Razack v. H.K. Gopal, AIR 1974 Mys 7; Ugni v. Chowa Mahta, AIR 1968 Pat 302(FB) ; Nadepena v. Saripalli, ILR 47 Mad 203(FB) ; Rahimansa v. M.I.E. Institution, AIR 1953 Mad 366; Tara Pada v. Shyama Pada, AIR 1952 Cal 579; Permanand v. Lakshminarayan, AIR 1955 MB 129; Somali Singh v. Lukhalal, 1965 MPLJ 64(Notes) ; Ram Shanker v. Mahatma Gandhi, AIR 1979 All 184; For proving adverse possession Sri Bhagwan Singh v. Rambasi Kuer, 1957 Pat 157; following N. Varada Pillai v. Jeevarathnammal, AIR 1919 PC 44; See also Subbu Naidu v. Varadarajulu Naidu, AIR 1948 Mad 26; Qadar Baksh v. Mangha Mal, AIR 1923 Lah 495; Puroshattam v. S.M. Desouza, AIR 1950 Ori 213; Abdul Alim v. Abdul Sattar, AIR 1936 Cal 130; Keshwar Mahton v. Sheonandan Mahton, AIR 1929 Pat 620.

16. DEEDS Section 91 lays down the 'best evidence rule'. It, however, does not prohibit the parties to adduce evidence, in a case, the deed is capable of being construed differently to show how they understood the same. 57

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Oral evidence can be adduced to show that the recitals in a deed were nominal or were not intended to be act ed upon or that they were not meant to alter the existing state of affairs. 58 57 Tulsi v. Chandrika Prasad, AIR 2006 SC 3359, 3362 (para 20) : (2006) 8 SCC 322. 58 Hindu Public v. Rajdhani Puja Samithee, AIR 1999 SC 964 (para 19).

17. LEASE DEEDS Under Sections 17(1)(d) of the Registration Act leases of the immovable property from year to year or for any term exceeding one year or reserving a yearly rent shall be registered. Under Sections 117 of Transfer of Property Act a lease for agriculture purpose need not be by any written instrument and may be oral. But, if the transaction is reduced to writing then the provision of Sections 17(1)(d) of the Registration Act would come into play if the lease is from year to year for any term exceeding a year or reserving a yearly rent and the lease deed should be registered. If it is not registered it would be inadmissible u/Section 49of the Registration Act .59 The Bombay High Court has held that an unregistered lease can be looked into for a collateral purpose for finding out whether the entry of the tenant into the land was as a permanent tenant.

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Where the lessees executed a registered Kabuliat in favour of the lessor and the lessor accepted it and executed an unregistered Amalnama it was held that there is no valid lease as defined in Section 107, T.P. Act created by the Kabuliat and acceptance of the lessor cannot be proved either by producing unregistered Amalnama or by oral evidence. 61 It was held that a registered Kabuliat by a lessee is invalid as a lease as it does not create any interest in the immovable property, but it could be looked into to know the possession of the lessee and neither Section 49of the Registration Act nor Section 91 of the Evidence Act operates as a bar to the admissibility of theKabuliat . 62 An unregistered Kabuliat granting a right to pluck mango fruits and Mahua flowers for three years was held not admissible in a suit for recovery of rent; as the Kabuliat does not create any interest as it was executed by lessee. 63 In respect of a contract to transfer the leasehold right, it was held that the unregistered deed though inadmissible, can be used as evidence of possession in pursuance of the document u/ Sections 53(a) of Transfer of Property Act.64 Unregistered lease for a period of some years cannot be received and the terms of it cannot be proved by other evidence. 65 Oral evidence to prove a contemporaneous oral agreement that the lease deed was executed only as a voucher or security for the loan and was not to be act ed upon can be admitted. 66 In a suit filed by the lessee against a trespasser for ejectment, it was held that an unregistered lease can be admitted to prove possession of the lessee and acceptance of rent to show that he was a lessee since the terms of the lease deed need not be proved in such a suit. 67 An unregistered Kirayanama (rent deed) for three years reserving monthly rent for residential purposes was held not operative as a valid lease and Section 91 is a bar to lead oral evidence.

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If the document is not admissible for want of registration, as a permanent lease still it can be looked into for showing the permissive nature of possession over the land. 69 In the instant case of eviction the question involved was whether the occupants of the premises were sub-tenants or tenants. A registered sale deed was executed between the owners and the tenant. The occupants, in spite of the registered sale were not debarred from taking a plea that the lease deed was not what it apparently appeared to be by just reading of it. But as they did not propose to raise the issue in respect of the terms of the lease or adduce evidence for the purpose of contradicting, varying, adding to or subtracting from the terms of lease deed; they being not parties to the lease, the provisions of the Sections 91 and 92 would not be attracted. 70

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59 S. Sita Manharam Sitamaharani v. Chhedi Mahto, AIR 1955 SC 328; Ram Nath Mandal v. Jojan Mandal, AIR 1964 Pat 1(FB) ; Maharani Janki Kuer v. Brij Bhikhan AIR 1924 Pat 641. 60 Yishvanath v. Ranganath, AIR 1942 Bom 268; see contra Karimulla Khan v. Bhanupratap Singh, AIR 1949 Nag 265. 61 Ramakrishna Jha v. Jainandan Jha, AIR 1935 Pat 291(FB) . 62 Chandranath Mukerji v. Chulai Pashi, AIR 1960 Cal 40; Birendra Nath Roy v. Sukumari Bakshi (Smt. ) , AIR 1952 Cal 352; (such document can be taken as a written admission of the lessee that he is liable to pay rent for the land). 63 Briksh Koeri v. Awadh Biharilal, AIR 1961 Pat 308; See also Hiralal Rewani v. Basti Olla Colliery Co. Ltd., AIR 1957 Pat 331. 64 Md. Sadruddin Khan v. Gulam Mohiuddin, AIR 1953 Hyd. 97. 65 Iswar Dutt v. Sunder Singh, AIR 1960 J&K 63. 66 Keralal Udochand v. Amarnath, 1957 MPLJ 399; relying on Thayagaraja Mudiliyar v. Yedathanni, AIR 1936 PC 70; Walter Mitchell v. A.K. Tennent, AIR 1925 Cal 1007; Rowland Ady. v. Administrator General of Bumna, AIR 1938 PC 198; Umrao Singh v. Raunak Singh, AIR 1939 Pat 495; Ramjibun Serowgy v. Oghore Nath Chatterjee, ILR 25 Cal 401. 67 Naban Bewa v. Nabkishore Samal, AIR 1964 Ori 16. 68 Adit Prasad v. Chhaganlal, AIR 1968 Pat 26. 69 Ram Shanker v. Mahatma Gandhi School, AIR 1979 All 184. 70 Gurdial Singh v. Raj Kumar Aneja, AIR 2002 SC 1003 (para 11) : (2002) 2 SCC 445.

18. SALE DEEDS A sale of property of value less than Rs. 100/- was effected by delivery of possession. There was also an unregistered document showing the transaction, it was held that the sale is complete by delivery of possession to the vendee and the unregistered document can be looked into whether the possession was given or whether the vendor was in possession. 71 Where the question of title and possession had become interdependent, the Court would not be justified in receiving and admitting into evidence the unregistered sale deed on the basis of which the defendant was claiming title. 72 In a suit for declaration of title based upon permanent lease deed and a subsequent sale deed, when the documents were not produced and the affidavits of the plaintiff vendee and the vendor were filed to prove title, it was held that the title is not supported by legal evidence and oral evidence cannot be admitted. 73 In a suit for eviction on the ground that the plaintiff was the exclusive owner of the suit house and his brothers were licensees. The registered sale deed showed that the property in question was purchased by the plaintiff in his name and there was no mention that his brothers had made any contribution. The oral evidence of the brothers was that they had made contribution for the purchase of the house in question which was not proved by other evidence. The High Court held that dismissal of the suit on the basis of oral evidence by ignoring the documentary evidence i.e. the registered sale deed, was not proper. 74 Where the terms of a contract or of a grant or any other disposition of the property (here sale-deed) have been reduced to the form of a document, oral evidence to prove that document could always be allowed. It is not prohibited under Section 91. 75 Where the sale deed was executed by the plaintiff as a security for loan availed by her from the appellant and she was in possession of the property, it was held that in such a case neither Section 91 nor Section 92 would disable her from adducing oral evidence to explain the transactions covered under the sale deed. 76 Oral evidence in respect of ratio of consideration paid by each purchaser in case of more than one purchasers of the property, can be led, even though there is no element of fraud. 77 71 Nagayya Baliah v. Sayanna Baliah, AIR 1951 Hyd 42; Parikhit Thapa v. Nidhi Thapa, AIR 1954 Ori 31.

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72 Avula Sathaiah v. Avula Lingaiah, AIR 2001 AP 400 (paras 9, 12, 16 and 17). 73 Municipal Board Bulandshahr v. Omprakash, 1964 All LJ 701. See also Suniti Rani Nath v. Pabitra Kr. Nath, AIR 2007 Gau 128, 130-31 (para 8). 74 Michael Herisuasai Joseph v. Carmal A. Joseph, 2006 AIHC 2120, 2121-22 (paras 6, 8 and 9)(Bom). 75 Y. Ganganaidu v. M. Surkantam, AIR 1993 AP 130 (para 4). 76 Yerram Krishna Rao v. Muttamalla Narasamma, AIR 2009 (NOC) 580(AP) . 77 Mathura Mahato v. Jagdish Mahto, 2002 AIHC 3272, 3274 (para 10) (Jhar).

19. MORTGAGE DEEDS The Supreme Court held in Veeramachineni Gangadhara Rao v. Andhra Bank Ltd. 78 that when the parties creating security by deposit of title deeds intend to reduce the contract to writing, such document must be registered. If the document is not registered, neither the document could be used in evidence nor the transaction could be proved by oral evidence in view of Section 91. 79 In such cases the criterion is whether the document constitutes the bargain between the parties or is it merely the record of an already completed transaction as was pointed out by L ORD C ARSON in Subramanian v. Latchman 80 . If the memorandum in question is the bargain between the parties and if it is not registered no evidence is permissible. And such unregistered document has to be rejected, the reason being, as observed by C OUCH C.J., in Kedhar Nath Datt v. Shamlal Khetty, 81 , that the writing is tacitly considered by the parties themselves as the only repository and the appropriate evidence of their agreement. 82 Where the document in question is merely a list of title deeds and does not indicate the terms of the agreement or the nature of the matter, such document does not require registration. 83 Where the document merely records what had taken place and the circumstances in which the title deeds were deposited, it was held that such document does not require registration and does not exclude oral evidence of the mortgage agreement. 84 Where the mortgage was already effected by the deposit of title deeds and the subsequent memorandum was only a record of the completed transaction, such record does not require registration, oral evidence can be adduced in respect of the debt and Section 91 is no bar in such cases. 85 The Supreme Court held that in the case of mortgage by deposit of title deeds the three requisites are (1) debt (2) deposit of title deeds (3) an intention that the title deeds shall be security for the debt which can be gathered from the documents or coupled with oral evidence or by oral evidence only. 86 The question whether oral evidence is admissible to establish or explain the circumstances in respect of deposit of title deeds, would depend on the question whether the writing itself would constitute the bargain between the parties. 87 A mortgage deed cannot be varied by any declaration made in an affidavit that the rights transferred were not merely of those of the mortgagor but of a full owner. 88 In the case of an unregistered deed creating further charge on the mortgaged property, the document is not admissible and no oral evidence can be given regarding its contents in view of Section 91 the Evidence Act. 89 It was held that an unregistered mortgage deed can be referred for ascertaining the nature and character of possession and for determining the quantum of interest agreed by the defendant. 90 The factum of a mortgage can be proved by independent evidence as it is not a term of the mortgage even though the mortgage is inadmissible for want of registration. 91 In the case of an oral mortgage where the sum secured is Rs. 100 or upwards it is invalid and no evidence is admissible to prove such a mortgage. 92 W ORT A G . C.J., and M ANOHAR J., took a different view and agreed with the view taken in.

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Where a firm is not registered under Partnership Act oral evidence is not admissible to show the terms of it.94

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In the case of an anomalous mortgage when a suit was filed to recover the amount acknowledged by the mortgagee on his personal liability to pay the debt which term was severable from the property obligation as a security for the debt and when the suit was not for enforcing the lien over the property or for possession of property, it was held that though the mortgage bond was not registered it can be received in evidence in support of the claim on money basing on personal liability. 95 An unregistered document can be availed of for the purpose of showing character and nature of possession, if such possession is transferred under such a document. When the mortgage deed is invalid in view of the provisions of Transfer of Property Act and is inadmissible in evidence in view ofSection 49of the Registration Act , there can be no question of a mortgage coming into existence, and so acquisition of rights by prescription on the basis of 12 years possession by the mortgagee would not arise under the invalid mortgage, and if it were to be allowed it would be clearly going against the provisions of a statute.96 Where the document containing a transaction is inadmissible for want of registration no other evidence of its contents can be received. Where in a suit for redemption of land, the plaintiff alleged that possession was given to the defendant by way of security for a loan of Rs. 100 or upwards but no registered deed was executed to evidence the transaction, oral evidence to prove the transaction was held inadmissible. 1 Where the government grant (Order) specifically stating that certain land be granted to particular Ziarat permanently and when the recitals are clear and express in unmistakable terms, it was held that oral evidence to contradict the recitals of the document is hit by Sections 91 and 92. 2 Referring to L ORD C ARSONIS ' view, L ORD T OMLIN observed: "While their Lordships do not think that the language of L ORD C ARSON conveys or was intended to convey the meaning that no memorandum relating to a deposit of title deeds can be within Sections 17Registration Act unless it embodies all the particulars of the transactions of which the deposit forms part, their Lordships are of the opinion that no such memorandum can fall within the purview ofSection 17, unless on its face, it embodies such terms and is signed and delivered at such time and place and in such circumstances as to lead legitimately to the conclusion that so far as the deposit is concerned it constitutes the agreement between the parties". 3 78 AIR 1971 SC 1613. 79 Subramanian v. Lutchman, AIR 1923 PC 50; Kedar Nath Dutt v. Shamlal Khettry, (1873) 11 Ben LR 405; Shaw v. Faster, 27 LT 281; Kakaraparthy Bhavanarayana v. Official Receiver, AIR 1971 AP 359; Chief Controlling Revenue Authority, Madras v. Pioneer Spinners Pvt. Ltd., AIR 1968 Mad 223(FB) . 80 AIR 1923 PC 50. 81 (1873) 11 Beng LR 405. 82 See also Hari Shankar v. Kedar Nath Saha, AIR 1939 PC 167; Velamakanya Krishnaiya v. Ponnuswami Aiyar, ILR 47 Mad 298. 83 Sundara Chariar v. Narayana Ayyar, AIR 1931 PC 36; Ibrahim Hazi Esmail v. Official Trustee, AIR 1937 Cal 741. 84 Ramachandra Laxman v. Bank of Kolhapur, AIR 1952 Bom 315; Rachpal Moharoy v. Bhagwan Das, AIR 1948 Pat 251. 85 Rachpal Mahraj v. Bhagwandas Daruka, AIR 1950 SC 272; Sundarachariar v. Narayana, AIR 1931 PC 36; Yeeranchineni Gangadhara Rao v. Andhra Bank Pvt. Ltd., AIR 1971 SC 1613; Punjab & Sind Bank v. Jaswant, AIR 1937 Lah 135; Muthia v. Naidu, 31 MLJ 347; Gurnam Kaur v. R.K. Bennerjee, AIR 1937 Rang 69. 86 K.J. Nathan v. S.Y. Maruthi Rao, AIR 1965 SC 430 : (1964) 6 SCR 727. 87 Chief Controlling Rev. Authority v. Pioneer Spinners (P ) Ltd., AIR 1968 Mad 223. 88 Saligram v. Shri Thakurji, AIR 1955 Ajmer 28. 89 Sheo Bachan v. Madho Saran, AIR 1952 Pat 73. 90 Purushottam Das v. S.M. Desouza, AIR 1950 Ori 213; Rupa Nonia v. Ram Brich Pathak, AIR 1959 Pat 164; Mt. Parsini v. Wasan Singh, AIR 1951 Pepsu 109.

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91 Nand Singh v. Seva Singh, AIR 1959 Punj 609. 92 Ramprasad v. Kalyani, AIR 1973 Raj 208. 93 AIR 1938 Pat 479. 94 Chhotelal Darbarilal v. Md. Hussain, 1955 V.P. 44. 95 Amarji v. Joravar Singh, AIR 1953 MB 9. 96 Lachmi Narain v.Kalyan, AIR 1960 Raj 1(SB) ; overruling Hansia v. Bakhtawarmal, AIR 1958 Raj 102; and dissenting from Bhukhan Mian v. Radhika Kumari, AIR 1938 Pat 479. 1 Maung San Min v. Maung Po Hlaing, (1925) 4 Ran 1(FB) . 2 1974 J&K LR 301 : 1974 Kashmir LJ 331. 3 Shri Harishankar Pal v. Kedarnath Shaw, AIR 1939 PC 167.

20. GIFT DEED Where a gift-deed showed the name of a person as donee, oral evidence to prove that the owner of the property always intended to give property to the father of the donee was barred under the provisions of Sections 91 and 92. 4 4 Ramesh v. Tarachand, AIR 2008 (NOC) 1170(Bom) : 2008 (1) AIR Bom R 633. See also Asokan v. Lakshmikutty, (2007) 13 SCC 210, 217 (para 22).

21. FAMILY SETTLEMENT DEED Where the terms of partition of family settlement between the parties have been reduced to writing in the registered deed of family settlement and has been proved, there is no question of any evidence in the nature of any oral agreement or statement in any suit for the purpose of contradicting, varying, adding to, or subtracting from the terms of the said deed of family settlement. 5 Partition of the joint family property can be effected orally by the father/karta in his life time amongst his sons even without their consent. However, it should be just and equitable. Partition of joint family property can be attached orally, memorandum of partition can be recorded of oral partition effected in the past. If this memorandum is not received in evidence for any reason including for non-registration, the partition can be established by adducing oral evidence. 6 5 Satyanarayan Prasad Jaiswal v. Jamuna Prasad Jaiswal, 1999 AIHC 2479 (para 20) (Gau). 6 Meva Devi v. Omprakash Jagannath Agrawal, AIR 2008 Chh 13, 19-20 (para 26) (Chh.)

22. ARBITRATION CLAUSE In case of a dispute as to the existence of the arbitration clause in the agreement between the parties, its existence has to be ascertained from the intention of the parties as gathered from the correspondence exchanged between them, the agreement in question and the surrounding circumstances. 7 7 Nandan Biomatrix Limited v. D1 Oil Mills Limited, (2009) 4 SCC 495, 502 (para 30).

23. LICENCE Oral evidence to prove the contents of a licence is not admissible in evidence.

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8 Rubyana v. State of Maharashtra, 1996 Cr LJ 148 (para 8) (Bom).

24. A DOCUMENT GRANTING PERMISSION TO CONSTRUCT A BOUNDARY WALL A document granting permission to construct a boundary wall cannot establish title to the property as even a lessee or tenant can seek permission for making such kind of construction. 9 9 Prabhakar Adsule v. State of M.P., (2004) 11 SCC 249, 251 (para 5) : AIR 2004 SC 3557.

25. POWER OF ATTORNEY The writ of the petitioners challenging the notification for acquisition of land was dismissed in default for the restoration of which application was filed by the constituted attorney in whose favour the petitioners had executed the power of attorney which was irrevocable. The said constituted attorney had been in possession of the said land for a long time. It was held that the subsequent stand of the petitioners that they had never intended to sell the land could not be accepted in view of Section 91 of the Evidence Act . The application filed by the constituted attorney was held to be proper. 10 10 Najmuddin v. U.O.I., AIR 2009 SC 1429, 1431-1432 (paras 13, 16 and 17).

26. OPTION CONTRACT Sale with a condition to retransfer/reconvey is an option contract. It is not a partial transfer. By reason of such transfer all the rights in rem are transferred, reserving only a personal right to the seller to repurchase the property, which will be lost unless exercised within the stipulated time. After the lapse of time it would not be open to the seller to seek a declaration that, in the light of the re-conveyance agreement, the transaction viewed as a whole should be declared to be a mortgage. Such a claim/suit would also be hit by Section 91 of the Evidence Act, 1872, subject to Section 92 thereof. 11 11 Bishwanath Prasad Singh v. Rajendra Prasad, (2006) 4 SCC 432, 443-44 (para 46) : AIR 2006 SC 2965.

27. CASES OF FRAUD In cases of fraud on registration also this section does not apply. In cases of document required by law to be registered, where a party while selling or mortgaging one property situate in a particular district, added some nominal item situated in another district, to attract the jurisdiction of the other district for purpose of registration, evidence can be admitted and Section 91is no bar, as such registration is a fraud on law according to Sections 28 of the Registration Act and is invalid. 12 Under the Amendment Actof 20 of 1929 the new Sections 53-A was introduced in the Transfer of Property Act thereby introducing the equitable doctrine of part performance in a modified form, according to which the transferee cannot file a suit to enforce any right under the contract but he can only have a right to defend in order to protect his possession. 13 It was held that even if the transferee in possession loses his right to obtain specific performance of the agreement as such suit is barred by limitation, the doctrine of part performance can be availed as a defence in an act ion for ejectment filed by the transferor. 14 Oral evidence can be given to prove the existence of a document as contemplated in Sections 53-A of the Transfer of Property Act as also secondary evidence of its contents under Section 65 of the Evidence Act.15 12 Collector of Gorakhpur v. Ramsundar, AIR 1934 PC 157; Venkatarama Rao v. Sobhanadri Appa Rao, AIR 1936 PC 91; Jageshwar v. Mulchand, 1939 Nag 57(FB) ; Mathura Prasad v. Chandra Narayan, AIR 1921 PC 8; Ramnandan v. Chandradip, AIR 1940 Pat 504; Chandi v. Hrishikesh, AIR 1946 Cal 465.

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13 Probadh Kumar Das v. Dantmara Tea Co. Ltd., AIR 1940 PC 1; See also Maneklal v. Hormusji, AIR 1950 SC 1. 14 Meherali Khan v. Aratunnessa Bibi, 25 Cal WN 905; Sandu v. Bihk Chand, 47 Bom 621; Nagama v. Appalaraju, AIR 1930 Mad 1021; Salamat Uz-zamani v. Masha, 40 All 187; Ariff v. Jadunath Majumdar, AIR 1931 PC 79. 15 Bobba Suramma v. Peddireddi Chandramma, AIR 1959 AP 568.

28. WRITTEN ORDER OF APPOINTMENT BY PUBLIC OFFICER NEED NOT BE PROVED [EXCEPTION 1] This Exception is partly based on the maxim omnia praesumumtur rite esse acta. "It is a general principle, that a person's act ing in a public capacity is prima facie evidence of his having been duly authorised so to do; and even though the office be one the appointment to which must have been in writing, it is not, at least in the first instance, necessary to produce the document, or account for nonproduction". "The admission on evidence contemplated in this exception rests "partly on the principle" that the law presumes in favour of the regularity of official acts and against misconduct and bad faith; and partly on the consideration that the invalidity of an act or appointment is more liable to detection when of a public, than when of a private nature." 16 Under exception (1) of Section 91 of the Evidence Act it is enough for the petitioner to prove that the successful candidate in an election act ed as a patel, an office of profit under the Government and was therefore disqualified for standing as a candidate for election. It is not necessary to produce the order of appointment. 17 16 B EST ON E VIDENCE , 12th Edn., Section 356, pp. 313 & 314. 17 Ram Sahai v. Gajja, (1959) 9 Raj 389.

29. WILLS ADMITTED TO PROBATE PROVABLE BY PROBATE [EXCEPTION 2] Probate means the copy of a will certified under the seal of a court of competent jurisdiction with a grant of administration to the estate of the testator. (The Indian Succession Act (XXXIX of 1925),S. 2(f). Probate of a will is evidence of the contents of the will against all the parties interested thereunder. Probate is secondary evidence, but it is made admissible by this section. Apart from the exceptions mentioned in this section, it is open to the legislature to provide in express terms exceptions to Sections 91 & 92 of the Act . For instance Section 12(1) of the Kerala Land Reforms Act provides that notwithstanding Sections 91 & 92 of the Evidence Act, it is open to prove that a document purporting to be a mortgage is in substance a kanom or a similar transaction granting fixity of tenure. 18 18 K.K. Nambiar v. Pairu Kurup, AIR 1970 Ker 16(FB) .

30. NUMBER OF DOCUMENTS CONTAINING THE TERMS IMMATERIAL [EXPLANATION 1] Illustration (a ) to the section exemplifies this explanation. When parties negotiate at a distance by letters or telegrams, the entire mass of correspondence indicates the true nature of the agreement entered into by the parties. "Instead of leaving the net effect of the negotiations to be gleaned from the mass of writings, a single document is finally drawn up to replace them and to embody their net effect, and is signed or otherwise adopted by the parties, this document will alone represent the terms of the act." 19

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Dealing with the evidentiary value of "bought and sold notes" it was held 20 that a broker is a common agent of both parties and when he closes the negotiation usually enters it in his business books and gives copy to each party of the entry or the memorandum of the transaction. The note or the memorandum given to the seller is called the "sold note" and the copy given to the buyer is a 'bought note'. They both do not constitute a contract of sale and they would serve only to record the transaction; in such cases the contract may be proved by any other legal means. Where the bought and sold notes did not agree and there being no other written memorandum of the contract there would be no sufficient proof within the Statute of Frauds. In regard to "bought and sold notes" the Privy Council held that as the defendant had falsified the bought and sold note, the plaintiff was entitled to disregard them and to fall back on his original contract, that as regards the "bought and sold note" the only question is what weight should be given to them. 21 19 W IGMORE --Evidence 1905 Edn., Section 2425, pp. 1408, 1409. 20 Silvewright v. Archibold, 17 QB 115. 21 Durga Prasad Sureka v. Bhajan Lal Lohea , ILR 31 Cal 614 (PC).

31. ONLY ONE OF MANY ORIGINALS MAY BE PROVED [EXPLANATION 2] Illustration (c ) exemplifies the meaning of this Explanation. Section 62, Explanations 1 and 2, Bills of exchange and bills of lading have more originals than one.

32. STATEMENT, IN ANY DOCUMENT, OF A FACT, NOT REFERRED TO IN THIS SECTION PROVABLE [EXPLANATION 3] Illustrations (d ) and (e ) exemplify this Explanation. "When the contents of a document are in question, either as fact in issue or a sub-alternate principal fact, the document is the proper evidence of its own contents, and all derivative proof is rejected until its absence is accounted for. But when a written instrument or document of any description is not the fact in issue, and is merely used as evidence to prove some fact, independent proof aliunde is receivable." (B EST ON E VIDENCE , 2nd Edn., p. 282). Thus, although a receipt has been given for the payment of money, proof of the fact of payment may be made by any person who witnessed it. A receipt for sums paid in part liquidation of a bond hypothecating immovable property must be registered to render it admissible as evidence. Under illustration (e ) to this section such payments may nevertheless be proved by parol evidence, which is not excluded owing to the inadmissibility of the documentary evidence. 22 T AYLOR ON E VIDENCE (10th Ed., Section 405, p. 314) states the principle of this explanation 3 as follows. "Extrinsic evidence is admissible in substitution of any document intended by the parties to operate merely as a collateral or informal memorandum of a transaction, and not as a contract or other binding legal instrument, because, in such a case, the parties do not intend the writing to be complete and exclusively operate as regards such transaction. In a suit, which was brought for the price of goods sold and delivered, the plaintiff swore to the fact of the sale and tendered in evidence a written admission of the defendant that the goods had been supplied to him. The writing was rejected, as unstamped, and the suit was dismissed. It was held that the judge should have allowed the plaintiff an opportunity of proving by oral testimony the delivery of the goods sold, and their value. 23 So although where the contents of a marriage register are in issue and verbal evidence of those contents is not receivable, yet the fact of the marriage may be proved by the independent evidence of a person who was present at it. 24

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A contract deals with the subject matter as well as the persons between whom it is entered into. The names of the parties insofar as they relate to the terms, which create obligations cannot be regarded as divorced from the terms of the contract. Evidence may be led to show that some other persons intended to incur obligations under the contract instead of the parties designated therein, in view of explanation (3) of Section 91. 25 The existence of deed of partnership between the tenant and the alleged sub-tenant would not preclude the landlord from bringing on record material and circumstances, by adducing evidence or by means of cross-examination, making out a case of subletting or parting with possession or interest in tenancy premises by the tenant in favour of a third person. 26 In view of explanation (3) and illus. (e ) of Section 91 Evidence Act, when the pronote was not produced, the plaintiff must prove that he had lent the money to the defendant and it was repayable; that for such purpose oral evidence is admissible of the fact that the payment was made; that the terms on which the payment is made are covered by the provisions of Section 91 and require production of the document. 27 22 Dalip Singh v. Durga Prasad, (1877) 1 All 442; Sukh Dial v. Mani Ram, (1914) PR No. 29 of 1915, (Civil); Sharaf Ali Khan v. Jagandar Singh, (1916) PR No. 98 of 1916 (Civil). 23 Binja Ram v. Rajmohun Roy, (1881) 8 Cal 282. 24 Balbhadar Prasad v. Maharaja of Betia, (1887) 9 All 351, 356. 25 Shankar Bandu v. Shankar Babaji, AIR 1956 Bom 165. 26 Parvinder Singh v. Renu Gautam, (2004) 4 SCC 794, 799 (para 9) : AIR 2004 SC 2299, relying on Tygaraja Mudaliyar v. Vedathanni, AIR 1936 PC 70 : 63 IA 126. 27 Lila Singh v. Chajju Singh, AIR 1952 All 877.

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Ratanlal & Dhirajlal: Law of Evidence, Updated 23rd Edition/THE INDIAN EVIDENCE ACT (ACT 1 OF 1872)/PART II ON PROOF/CHAPTER VI OF THE EXCLUSION OF ORAL BY DOCUMENTARY EVIDENCE/S. 92.

CHAPTER VI OF THE EXCLUSION OF ORAL BY DOCUMENTARY EVIDENCE S. 92. Exclusion of evidence of oral agreement. When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms: Proviso (1 ) . --Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, want or failure of consideration, or mistake in fact or law. Proviso (2 ) . --The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, may be proved. In considering whether or not this proviso applies, the Court shall have regard to the degree of formality of the document. Proviso (3 ) . --The existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved. Proviso (4 ) . --The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property, may be proved, except in cases in which such contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents. Proviso (5 ) . --Any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description, may be proved: Provided that the annexing of such incident would not be repugnant to, or inconsistent with, the express terms of the contract. Proviso (6 ) . --Any fact may be proved which shows in what manner the language of a document is related to existing facts. ILLUSTRATIONS 4a)   A policy of insurance is effected on goods "in ships from Calcutta to London". The goods are shipped in a particular ship which is lost. The fact that that particular ship was orally excepted from the policy cannot be proved. 4b)   A agrees absolutely in writing to pay B Rs. 1,000 on the first March, 1873. The fact that, at the same time an oral agreement was made that the money should not be paid till the thirty-first March cannot be proved.

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3c)   An estate called "the Rampur Tea Estate" is sold by a deed which contains a map of the property sold. The fact that land not included in the map had always been regarded as part of the estate and was meant to pass by the deed cannot be proved. 2d)   A enters into a written contract with B to work certain mines, the property of B , upon certain terms. A was induced to do so by a misrepresentation of B 's as to their value. This fact may be proved. 1e)   A institutes a suit against B for the specific performance of a contract, and also prays that the contract may be reformed as to one of its provisions, as that provision was inserted in it by mistake. A may prove that such a mistake was made as would by law entitle him to have the contract reformed. 1f)   A orders goods of B by a letter in which nothing is said as to the time of payment, and accepts the goods on delivery. B sues A for the price. A may show that the goods were supplied on credit for a term still unexpired. 1g)   A sells B a horse and verbally warrants him sound. A gives B a paper in these words : "Bought of A a horse for Rs. 500". B may prove that verbal warranty. 1h)   A hires lodgings of B , and B gives a card on which is written--"Rooms, Rs. 200 a month". A may prove a verbal agreement that these terms were to include partial board. A hires lodgings of B for a year, and a regularly stamped agreement, drawn up by an attorney, is made between them. It is silent on the subject of board. A may not prove that board was included in the terms verbally. 1i)   A applies to B for a debt due to A by sending a receipt for the money. B keeps the receipt and does not send the money. In a suit for the amount A may prove this. 1j)   A and B make a contract in writing to take effect upon the happening of a certain contingency. The writing is left with B , who sues A upon it. A may show the circumstances under which it was delivered.

1. PRINCIPLE AND SCOPE This section deals with several grounds of exclusion of extrinsic evidence.

17)  

Under this section-1. When the terms of (a ) a contract, (b ) a grant, or (c ) any other disposition of property, have been reduced to the form of a document, or 1. When any matter required by law to be reduced to the form of a document has been proved by the production of the document or by giving secondary evidence of its contents, no evidence of any oral agreement or statement shall be admitted as between the parties to any such document or their representatives in interest, for the purpose of (i ) contradicting, (ii ) varying, (iii ) adding to, or (iv ) subtracting from, its terms. There are six exceptions to this-1. Any fact which would (i ) invalidate any document, or (ii ) entitle any person to any decree or order relating thereto may be proved, such as fraud, intimidation, illegality, failure of consideration, mistake in fact or law. 1. Any separate oral agreement (i ) as to any matter on which the document is silent, and (ii ) which is not inconsistent with its terms, may be proved. 1. Any separate oral agreement, constituting a condition precedent to the attacking of any obligation under the document, may be proved. 1. Any subsequent oral agreement to rescind or modify any such contract, grant, or disposition of property, may be proved, except when

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such contract or grant (i ) is required to be in writing, or (ii ) has been registered. 1. Any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to such contracts, may be proved if they are not repugnant to, or inconsistent with, its express terms. 1. Any fact which shows in what manner the language of the document is related to existing facts, may be proved. 1. This section is supplementary to S. 91 and is, to some extent, implied in it. If the contract, grant or disposition has been reduced to writing, Section 91 says no evidence shall be given of it, except the document itself, and this rule would be in vain, unless, as is said in this section, it was also forbidden to contradict, vary, add to, or subtract from, its terms. 28 When a transaction has been reduced to writing, either by requirement of law, or agreement of the parties, the writing becomes the exclusive memorial thereof; and no extrinsic evidence is admissible either to prove independently the transaction, or to contradict, vary, add to, or subtract from, the terms of the document, though the contents of such document may be proved either by primary or secondary evidence. All parol testimony of conversations held between parties, or declarations made by either of them, whether before, or after, or at the time of, the completion of a contract, will be rejected, because such evidence would tend to substitute a new and different contract for the one really agreed upon. Extrinsic evidence as to what transpired subsequent to a written contract is not admissible for ascertaining its terms. 29 The expression 'oral evidence' referred to in Sections 91- 92 of the Evidence Act, is not confined only to the one to be led by the party opposing the document referred to therein in the form of chiefexamination of a witness to be examined by him but it also includes the cross-examination of the witness by the opposite party in relation to it. 30 "To admit inferior evidence when the law requires superior would be to nullify the law; and that when the parties have deliberately put their agreement in writing, it is conclusively presumed between themselves and their privies, that they intend the writing to form a full and final statement of their intentions, and one which should be placed beyond the reach of future controversy, bad faith, or treacherous memory". Though on execution and registration of a sale-deed, the ownership and all interests in the property pass to the transferee, yet that would be on terms and conditions embodied in the deed indicating the intention of the parties. Such intention can be gathered by intrinsic evidence, namely, from the averments in the sale-deed itself or by other attending circumstances subject, of course, to the provisions of Section 92. 31 The rule, however, is sometimes though to be based on the "best evidence" principle 32 ; sometimes on the doctrine of estoppel, as the party is precluded by his acknowledgment in writing from disputing what is so acknowledged; and sometimes on the substantive law purely. The rule applies when the document is accepted as a document operating in accordance with its terms. Section 92 enacts that when the terms of all contracts, or grant or other disposition of property are reduced to writing, whether or not such contract or grant is compulsorily required to be reduced to writing and registered, no oral evidence shall be admitted to contradict, vary, add to or subtract, from its terms. 33 The section applies only where, upon the face of it, the written instrument appears to contain the whole contract. 34 If the parties have intended to reduce all the terms of the contract to writing, then no parol evidence is admissible; but if they intended only to reduce to writing a portion of the terms of the contract, then they are entitled to give parol evidence of the terms which they did not intend to reduce to writing. 35

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Where, however, a transaction is contained in more than one document the documents should be read and interpreted together and this section is not applicable. 36 When the true character of a document is questioned, extrinsic evidence by way of oral evidence is admissible. 37 The bar of this section applies only when it is sought to be proved that the terms of the transaction were different and not that the transaction itself was different than what it purported to be. 38 28 Markby 73, Bhawanbhai Premabhai v. Bai Vahali, (1955) 57 Bom LR 250. 29 Belapur Co. Ltd. v. Maharashtra State Farming Corpn., (1972) 74 Bom LR 246. 30 Nanadam Mohanamma v. Markonda Narasimha Rao, AIR 2006 AP 8, 11 (para18). 31 Bishundeo Narain Rai v. Anmol Devi, AIR 1998 SC 3006, distinguishing Panchoo Sahu v. Janki Mandar, AIR 1952 Pat 263 and Hara Bewa v. Banchanidhi Barik, AIR 1957 Ori 243 and approving Shiva Narayan Sah v. Baidya Nath Prasad Tiwary, AIR 1973 Pat 386; Kamta Prasad v. Lachmi Sah, AIR 1929 Pat 550; Umeshwar Prasad Sinha v. Dwarika Prasad, AIR 1944 Pat 5 : ILR 22 Pat 320; Sarjug Saran Singh v. Ramchartar Singh, (1968) 16 BLJR 74 and Ramchandra Biharilal Firm v. Mathuramohan Naik, AIR 1964 Ori 239 : ILR 1964 Cut 551. 32 Guardhouse v. Blackburn, LR 1 P&D 117; Davis v. Symonds, 1 Cox Ch 402; P HIPSON ON E VIDENCE , 13th Edn., page 934 (para 38.02). 33 Sumati Bala Majumdar (Smt. ) v. Narendra Kumar Das, AIR 1975 Gau 43 relying on; Tyagaraja Mudaliyar v. Vedathanni, AIR 1936 PC 70; Asaram v. Ludheshwar, 1938 Nag 335(FB) . 34 Cutts v. Brown, (1880) 6 Cal 328, 337. 35 Jamna Doss v. Srinath Roy, (1889) 17 Cal 176n, 177. 36 S. Chattanatha Karayalar v. Central Bank of India, AIR 1965 SC 1856 : (1965) 3 SCR 318. 37 R. Janakiraman v. State, (2006) 1 SCC 697 (para 24); Roop Kumar v. Mohan Thedani, (2003) 6 SCC 595 (para 19); SBI v. Mula Sahakari Sakhar Karkhana Ltd., (2006) 6 SCC 293 (paras 23-32); Vimal Chand Ghevarchand Jain v. Ramakant Eknath Jadoo, (2009) 5 SCC 713, 729 (para 31). 38 Heirs of Jatashanker v. Heirs of Mavji, AIR 1969 Guj 169.

2. SECTION 91 AND SECTION 92 -- POSITION In Section 92 the legislature has prevented oral evidence being adduced for the purpose of varying the contract as between the parties to the contract; but, no such limitations are imposed under Section 91. Having regard to the jural position of Sections 91 and 92 and the deliberate omission from Section 91 of such words of limitation, it must be taken note of that even a third party if he wants to establish a particular contract between certain others, either when such contract has been reduced to in a document or where under the law such contract has to be in writing, can only prove such contract by the production of such writing. 39 Sections 91 and 92 in effect supplement each other. Section 91 would be inoperative without the aid of Section 92, and similarly Section 92 would be inoperative without the aid of Section 91. The two sections however, differ in some material particulars. S. 91 applies to all documents, whether they purport to dispose of rights or not, whereas Section 92 applies to documents which can be described as dispositive. Section 91 applies to documents which are both bilateral and unilateral, unlike Section 92 the application of which is confined to only to bilateral documents. Both these provisions are based on "best evidence rule". It would be inconvenient that matters in writing made by advice and on consideration, and which finally import the certain truth of the agreement of parties should be controlled by averment of the parties to be proved by the uncertain testimony of slippery memory. 40 Sections 91 and 92 deal with altogether different kinds of documents and do not deal with the official registers maintained at the store room or Malkhana. Entry can be made in the Malkhana register without actually depositing the samples. Unless either the person who deposited the case property or MHCM/store in-charge does not prove the deposit of the samples, mere production of the Malkhana register is of no use. It is not a concrete proof of the deposit of the property. 41

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39 Roop Kumar v. Mohan Thedani, AIR 2003 SC 2418 (para 18) : (2003) 6 SCC 595. 40 Roop Kumar v. Mohan Thedani, AIR 2003 SC 2418 (paras 19 and 20) : (2003) 6 SCC 595. See also Bai Hira Devi v. Official Assignee of Bombay, AIR 1958 SC 448. 41 Siddiqua v. Narcotics Control Bureau, 2007 CrLJ 1471, 1478 (para 11) (Del).

3. GROUNDS OF EXCLUSION OF EXTRINSIC EVIDENCE The grounds of exclusion of extrinsic evidence are (i ) to admit inferior evidence when law requires superior would amount to nullifying the law, (ii ) when parties have deliberately put their agreement into writing, it is conclusively presumed, between themselves and their privies, that they intended the writing to form a full and final statement of their intentions, and one which should be placed beyond the reach of future controversy, bad faith and treacherous memory. 42 42 Roop Kumar v. Mohan Thedani, AIR 2003 SC 2418, para 21 : (2003) 6 SCC 595.

4. APPLICABILITY--EXCEPTIONS [ Section 92] It is given to the legislature by special legislation to exclude the operation of Sections 91 and 92. Section 12(1)of the Kerala Land Reforms Act, 1963 removes the trammels imposed by provisions of EvidenceAct specially Sections 91 and 92 in the interpretation of documents. In cases, to which Section 12(1) will not apply, a document has to be interpreted subject to Sections 91 and 92 of Evidence Act . 43 The provision contained in Section 6 of Hyderabad Land Alienation Restraint Act, is mandatory and cannot be whittled away. The policy of the Act being to create an exception to the general rule in Section 92, Evidence Act, any decree passed on admission of the defendant who is an agriculturist cannot come in the way of his raising a plea in any subsequent proceeding. 44 The plea of estoppel under Section 115 of the Evidence Act would apply only when the representation is in writing, but would not help when it is oral in the face of Section 92. It is wrong to suppose that Section 115 is a substantive law, while Section 92 is only a procedural law. If the two are read together, both can operate. There is nothing in Section 115 to show that it overrides Section 92. 45 However, it was held that the rule of estoppel must prevail against a pure rule of procedure contained in Section 92. 46 An arbitration proceeding is not governed by the Evidence Act. In an arbitration proceeding, however, the principles of natural justice are bound to be followed. The principles embodied in Sections 91 and 92 of the Evidence Act lay down the principles of natural justice and the court in such a case of violation should come to the aid of the aggrieved party. In case reference proceeds and the arbitrator gives effect to the principle embodied in Sections 91 and 92 of the Evidence Act, the party who alleges the fraudulent manipulations in the written contract is bound to fail. Again, in case the reference proceeds, if the arbitrator ignores the principles of Sections 91 and 92 and the decision is in favour of the party and then the point is agitated in court, the court is bound to give effect to the principles of Sections 91 and 92 of the Evidence Act . 47 If evidence is proposed to be led to vary or modify the terms of a document or a writing, there must be a proper plea raised which brings the case within any of the provisions to Section 92. 48 This section has no reference to a question whether the parties agreed to the terms of the document set forth in it. 49 Section 92 has nothing to do with offers made. It fully allows offers to be varied at the time of acceptance and being turned into regular contracts. Where a complainant seeks to prove the varying of the terms of offer at the time of concluding the contract, such evidence is not prohibited by Section 92 and hence cannot be excluded. 50 Where the agreement is partly oral and partly in writing the bar under Section 92 is not attracted. 51

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43 K.K. Nambiar v. Kurup, AIR 1970 Ker 16. 44 Parasuram v. Pandu, AIR 1956 Hyd 178(DB) . 45 Ranbaxy Laboratories Ltd. v. Doon Apartments, (1979) 1 Del 84. 46 State Bank of Indore v. Jasroop Baijnath, AIR 1974 MP 193. 47 Bengal Just Mills Co. Ltd. v. Lal Chand Dugar, AIR 1963 Cal 405. 48 Shankar Bandu v. Shankar Babaji, AIR 1956 Bom 165. 49 G.Y. Bhandare v. Erasme De Sequetra, AIR 1972 Goa 25. 50 Bindeshwari Singh v. K.K. Dutta, AIR 1954 Cal 361; Bindeshwari Singh v. K.K. Dutta, 1954 Cr LJ 975. 51 Anjali Das v. Bidyut Sarkar, AIR 1992 Cal 47.

5. 'ANY MATTER IS REQUIRED BY LAW TO BE REDUCED TO' Where any matter is required by law to be reduced to the form of a document, then the document itself must be put in evidence, e.g., deeds, conveyances of land, mortgages, wills, etc. No other evidence can be substituted so long as the writing exists. But where the matter is not required by law to be reduced to the form of a document, this section does not apply, e.g., in 1866 an oral agreement with transfer of possession sufficed to create a mortgage and, therefore, a mortgage could be proved aliunde even if there was no registered document. 52 52 Narsi v. Parshottam, (1928) 30 Bom LR 1277 : ILR 52 Bom 875; Sir Sayaji Rao v. Madhavrao, (1928) 30 Bom LR 1463 : 53 Bom 12. No oral evidence is admissible to prove the rent payable under a lease reduced to writing; Lal Rajendrasingh v. Mahant Hulasdas, ILR (1944) Nag 704.

6. ADMISSION The document wherein the party has made an admission and he has been confronted with the same in his examination, can be relied upon. 53 53 K.M. Rajendran v. Arul Prakasam, AIR 1998 Mad 336 (para 13).

7. CONFESSION A confession of an accused person made to a Magistrate holding an inquiry is a matter required by law to be reduced to the form of a document within the meaning of this section, and no evidence can be given of the terms of such a confession except the record, if any, made under Section 364 of the Code of Criminal Procedure .54 54 Emperor v. Gulabu, (1913) 35 All 260.

8. DEPOSITION In a prosecution for perjury, the deposition is to be produced in evidence against the accused during his trial not for the purpose of proving its truth but for the purpose of proving that he made it. Section 91, Evidence Act deals with the production of a document to prove the truth of its contents and not to prove its existence. If the prosecution had to prove that the deposition made by the witness is correct, it would have to produce the deposition and Section 91 would bar any other evidence. But when the prosecution has simply to prove that the witness made the deposition, there is nothing in Section 91 to prevent this fact being proved without producing the deposition itself. 55

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The omission to read over his deposition to the witness, in accordance with Order XVIII, Rule 5 of the Civil Procedure Code, renders the same inadmissible in evidence against him at his subsequent trial for forgery and oral evidence of its contents is excluded by this section. 56 55 Mohammed Farooq v. Rex, AIR 1950 All 501. 56 Emperor v. Nabab Ali Sarkar, (1923) 51 Cal 236; Chenchian v. King-Emperor, (1919) 42 Mad 561; Taj Mahmud v. Crown, (1927) 15 Lah 407. See, however, Kamla Devi v. Rudrew Shwar Prasad Singh, 1976 HLR 185.

9. CONTRADICTING--INTENTION The Privy Council laid down in Balkishen v. Legge 57 that oral evidence of intention is not admissible for the purpose of construing a deed or ascertaining the intention of the parties to the deed. Oral evidence was not allowed, for example, to show whether a particular deed was intended by the parties to be a sale or lease. 58 A deed of sale of land for value was accompanied by a deed of agreement between the parties for purchase back by the vendor of the land on payment by him of money to the vendee on a future date fixed. The deeds were followed by transfer of possession to the vendee, and his receipt of the profits. The vendor did not exercise his right of re-purchase; but after many years, gave notice of his intention to redeem, and sued to enforce his right of redemption as upon a mortgage by conditional sale. The Privy Council held that oral evidence for the purpose of ascertaining the intention of the parties to the deeds was not admissible and that the case must be decided on the consideration of the contents of the documents themselves with such extrinsic evidence of surrounding circumstances as may be required to show in what manner the language of the document was related to existing facts. 59 Even after this pronouncement of the Judicial Committee there was a conflict of views between the Bombay and the Madras High Courts on the one hand and the Calcutta High Court on the other on the question whether oral evidence as to act s and conduct of parties subsequent to a deed was admissible to show that what on the face of it was a conveyance of sale was in reality a mortgage. The High Courts of Bombay 60 and Madras 61 were of opinion that such evidence was not admissible. The former Chief Court of Lower Burma 62 and the former Judicial Commissioner's Court of Upper Burma 63 followed this view. On the other hand, the Calcutta High Court 64 was of opinion that such evidence was admissible. The former Chief Court of the Punjab 65 had adopted the view of the Calcutta High Court. This conflict has been set at rest by the Privy Council in Maung Kyin's case, above referred to, in which it has expressly overruled the decisions of the Calcutta High Court and approved those of the Bombay and the Madras High Courts. It has held that as between the parties to an absolute conveyance this section precludes the giving of oral evidence to prove that the transaction was intended to be a mortgage. 66 Though this section precludes oral evidence of intention for the purpose of construing deeds or proving the intention of the parties, it merely prescribes a rule of evidence, and does not fetter the court's power to arrive at the true meaning and effect of a document in the light of all the circumstances surrounding the transaction 67 . When it is said that a court should look into all the circumstances to find an author's intention, it is only for the purpose of finding out whether the words apply accurately to existing facts. But if the words are clear in the context of the surrounding circumstances the court cannot rely on them to attribute to the author an intention contrary to the plain meaning of the words used in the document. 68 Where a document has to be construed, the intention must be gathered, in the first place, from the document itself. If the words are express and clear, effect must be given to them and any extraneous enquiry into what was sought or intended is ruled out. The real question in such a case is not what the parties intended or meant but what is the legal effect of the words which they used. If, however, there is ambiguity in the language employed, then it is permissible to look to the surrounding circumstances to determine what was intended. 69 Though it is true that no oral evidence can be given to vary the terms of a contract, but it can be shown that actually the transaction was intended to be a loan transaction and not an agreement for sale. 70 The intention of the parties is to be gathered having regard to the circumstances attending to the settlement (para 16). Construction of a document so as to ascertain the intention of the parties is in no way controlled by the provisions of Section 91 or

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Section 92 of the Evidence Act . The document has to be interpreted applying the known principles of construction and/or canons. (para 26). 71 57 (1899) 2 Bom 523, 27 IA 58, 22 All 149. 58 Satyanarayan Shah v. Star Co., AIR 1984 Cal 399. 59 Balkishen v. Legge, (1899) 2 Bom LR 523, 27 IA 58, : ILR 22 All 149; Maharu v. Khandu, (1924) 26 Bom LR 742 PC; Vithoba v. Narayan, ILR (1942) Nag 592; Kesarbai v.Rajabhau, (1944) Nag 141. 60 Dattoo v. Ramchandra, (1905) 30 Bom 119 : 7 Bom LR 669; Abaji Annaji v. Luxman, (1906) 30 Bom 426 : 8 Bom LR 553. 61 Achutaramaraju v. Subbaraju, (1901) 25 Mad 7. 62 Maung Bin v. Ma Hlaing, (1906) 3 LBR 100(FB) . 63 Mi Gywe v. Kesha Ram, (1908) 2 UBR (1907- 1909) (Evi) 15. 64 Preonath Shaha v. Madhu Sudan Bhuiya, (1898) 25 Cal 603 FB; Khankar Abdur Rahman v. Ali Hafez, (1900) 28 Cal 256; Mahomed Ali Hossein v. Nazir Ali, (1901) 28 Cal 289. 65 Abdul Ghafur Khan v. Abdul Kadir, (1901) PR No. 72 of 1901 (Civil); Bulaki Mal v. C.J. Floyd, (1911) PR No. 27 of 1911 (Civil). 66 Maung Kyin v. Ma Shwe La, (1917) 44 IA 236, 20 Bom LR 278; Maung Shwe Phoo v. Naung Tun Shin, (1927) 5 Ran 644. 67 Baijnath Singh v. Hajee Vally Mahomed, (1924) 27 Bom LR 787 : ILR 3 Ran 106 PC. 68 Kamla Devi v. Takhatmal, AIR 1964 SC 859. 69 Chunchun Jha v. Ebadat Ali, AIR 1954 SC 345 : 1954 All LJ 546 : 1954 SCJ 469 : 1955 SCR 174. 70 K. Bhaskaran Nair v. Habeeb Mohammed, AIR 2002 Ker 308, 310, para 11 following, Thyagaraja v. Yedathannim, AIR 1936 PC 70. See also Kamireddi Sattiaraju v. Kandamuri Boolaeswari, AIR 2007 (NOC) 540(Mad) . 71 Hindustan Fasteners (P.) Ltd. v. Nashik Workers' Union, (2007) 11 SCC 660 (paras 16 and 26) : (2006) 9 JT 308.

10. ORAL EVIDENCE INADMISSIBLE TO CONTRADICT WRITTEN TERMS The expression "oral evidence" referred to in Section 91 and Section 92 of the Evidence Act is not confined to the one to be led by the party opposing the document referred to therein in the form of Chief- Examination of a witness to be examined by him. The oral evidence includes not only the one, adduced by examining the witnesses on behalf of such party, but also the cross-examination of the witness by the opposite party, in relation thereto. An admission or confession of a witness constitutes oral evidence and it makes little difference whether the witness was examined at the instance of the plaintiff or defendant. 72 In a suit for a declaration that an apparent sale-deed executed by the plaintiff was a mortgage and for redemption, the lower courts allowed the plaintiff to adduce evidence to prove that the defendant at the time of the execution of the sale-deed represented to the plaintiff that the sale-deed would not be enforced as such. It was held that no evidence of a contemporaneous agreement, or promise, or representation inconsistent with the written document could be admitted. 73 In a suit for a decree for sale for the mortgage due under an admittedly usufructuary deed mortgage the defendants contended that there was a contemporaneous oral agreement to treat the usufructuary deed as a simple mortgage and that transfer of possession was never intended. On the question whether evidence in support of the oral agreement could be allowed to be let in, it was held that the Courts should give effect to the intention expressed in the document and that the contemporaneous oral agreement was inadmissible in evidence. 74 Where in a written agreement of sale, the relevant clause therein expressly contemplated that the possession would remain with the vendor until completion of the sale,

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oral evidence to prove an oral agreement pertaining to handing over the vacant possession of the ground floor of the building in question, thereby contradicting the written agreement, was held to be inadmissible. 75 Where a registered document on the face of it without any ambiguity is a pure and simple mortgage, the parties to the transaction or their successors-in-interest cannot be allowed under Section 92 to prove by parol evidence that it was intended to operate as a deed of sale. 76 In the case of ambiguous language of a document admitting variety of meanings, the court can consider subsequent conduct of the parties. 77 Where a document purports to be an absolute sale, a contemporaneous unregistered agreement giving the vendor the right of redemption is inadmissible to prove that the deed of sale is in reality a mortgage. 78 The Privy Council held reversing the judgment of the High Court that Section 92 barred parol evidence for the purpose of showing that a deed of sale was in reality intended by the plaintiff to be deed of gift. 79

The plaintiff's father conveyed the family properties to his sister's husband for a stated amount as consideration, the consideration being the obligation which the vendee undertook to discharge the family debts for that amount, and the vendee sold some of the properties and discharged the debts, and the plaintiff sued the vendee for the recovery of the properties left, and for an account of his management of the properties conveyed. It was held that the plaintiff was precluded from establishing an oral agreement to reduce an out-and-out sale into a trust so as to take away the right of the vendee to enjoy the properties, as such an agreement would be hit by this section. 80 Evidence to show that a possessory mortgage is in reality a simple mortgage according to the intention of the parties is inadmissible under this section. 81 In Sara Veeraswami v. Talluri Narayya 82 the registered sale deed executed by the appellant plaintiff and his father effected an out right and unconditional sale of certain properties. On the same day the vendee leased the properties in favour of the father-in-law of the appellant-plaintiff. At the same time there was an oral agreement of sale that if the price was paid by the plaintiff within a period of five years, the vendee agreed to reconvey the properties. The plaintiff filed the suit for reconveyance. The Privy Council held that the oral agreement as to reconveyance did not contradict, vary or subtract from the terms of the sale deed within the meaning of Section 92 and was therefore admissible in evidence. The Privy Council also held that the words "adding to" which are part of Section 92 must receive their due weight, but in the opinion of their Lordships they do not suffice to exclude the oral agreement relied upon by the appellants. It is, of course, literally correct to say that as the agreement for reconveyance related to the lands sold, it added a further stipulation respecting those lands. That, however, is not an appropriate test of the applicability of the section which is concerned to defeat the modification of a particular document. It is not enough to ask if the oral agreement relates to what has been sold. To be excluded it must bear, in some one or more of the ways specified in the section, upon the terms of sale a contained in the instrument. To add a stipulation which is quite unconnected with the terms of sale is not, in the view of their Lordships, an addition of the kind struck at the section. 83

Evidence in respect of an oral agreement to return the property which has been conveyed under a registered sale deed is inadmissible. 84 Section 92 bars proof of an oral agreement not to charge interest when the mortgage bond in its terms provided for payment of interest. 85 Where the partition deed contains an admission that the parties were joint till 1954, oral evidence that there was an oral partition in 1951 cannot be allowed. 86 As green spaces and belts have to be provided as lung spaces to the residents of every locality, a provision for green part was made by the Municipal Corporation keeping in view the minimum requirement of the residents of the locality, in respect of which documentary evidence in the form of original scheme as well as other documents and the report of the Deputy Commissioner had come on record, conclusively showing that the said provision for green park was made, no reliance could be placed upon the oral testimony to prove otherwise. 87 In a suit for redemption of registered Zarpeshgi of 1929, the defence was that by an oral settlement of the same land in 1942 with the defendants they had discharged the liability under the Zarpeshgi of

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1929. It was held that oral evidence to prove the oral settlement in discharge of the Zarpeshgi of 1929 could be admitted because this was a case of total extinguishment of the Zarpeshgi and not a case in which the subsequent transaction set up by the defendants amounted to or had the effect of varying or rescinding the agreement between the parties resulting in the transaction of Zarpeshgi of December, 1929. In such circumstances, of course the law requires that when the original contract is in writing it may not be proved to have been abrogated except by a document in writing but this is altogether different from an arrangement between the parties subsequent to a contract whereby accepting the rights and liabilities accruing thereupon they seek to fulfil the obligations arising therefrom and thereby discharge the liability of one party as against the other; that would be an extinction of the previous contract by performance and not by concealing it or avoiding it. This is the distinction between the two. 88

However, the Calcutta High Court in Ramavtar v. Tulsi 89 held that a subsequent oral agreement giving a different mode of payment of discharge or providing a means for the satisfaction of the amount under the mortgage by putting the mortgagee in possession of the property mortgaged or a portion of it to enjoy the profits therefrom, oral evidence can be permitted to prove such oral agreement. 90 A plea that, notwithstanding the recitals in the promissory note for interest, the parties at the time of its execution agreed that no interest should be charged comes within the mischief of Section 92. It is a collateral agreement altering the legal effect of an instrument. 91 An agreement as to implied warranty regarding the correctness of the extent of the property sold should be established on the terms of the sale deed and it is not open to the plaintiff to travel outside the deed and to adduce to prove that there was a warranty de hors the instrument. 92 Mere mention of commission in a contract is not in any way inconsistent with the relation being between principal and a principal and statement of the defendant contradicted by the plaintiff that it was a condition that there was to be no liability on their part, cannot be allowed to displace the ordinary results which a contract between principals entails. 93 Once it is admitted or proved that a party executed a sale deed, no oral evidence can be led for contradicting, varying, adding to or subtracting from its terms unless a case falling under any proviso to Section 92 is specifically pleaded 94 or it was avoided or cancelled by the competent Court; 95 but to resolve the controversy between the parties who have purchased the property jointly, as to how much consideration has been paid by each purchaser to decide their respective shares in the property, in absence of any recital in the deed itself, the oral evidence can be led. 96 The Supreme Court in Mahindra and Mahindra Ltd. v. Union of India 97 while disapproving of the decision in Hindustan Lever Ltd. v. M.R.T.P. 98 observed: " Sections 91 and 92 of the Evidence Act do not come into the picture at all while considering whether a particular trade practice set out in an agreement has or may have the effect of preventing, distorting or restricting competition so as to constitute "a restrictive trade practice; it is the actual or probable effect of the trade practice which has to be judged in the light of the various considerations and there is no question of contradicting, varying, adding to or subtracting from the terms of the agreement by admitting any extraneous evidence for that purpose". Where there was a specific provision in a written agreement between the parties that the tenant was entitled for adjustment of Rs. 15,000/- only to carry out necessary repairs, of the building, it was held that the tenant's claim for adjustment of Rupees two lacs spent by him for making the suit premises more useful and beautiful, was not acceptable in view of Section 92 of the Act . 1 Where in a petition for eviction of one S and the appellants from the shop on the ground that S who, was the tenant of the shop in his personal capacity, had unlawfully sublet the shop to a firm, oral evidence was led by the appellants before the rent controller that S had acted as an agent on behalf of the firm of which he was a partner. It was held the description of a person in the lease as 'lessee' or 'tenant' does not necessarily negative agency and evidence may be given that the person so described was act ing as an agent. 2 In Leena Roy Choudary v. Most. Indumati Bose 3 a suit for eviction by a landlord was compromised between the landlord and tenant. According to the compromise decree the tenant gave up possession of a part of the premises. Thereafter tenant constructed a kitchen, a permanent structure without the landlord's permission. Compromise did not expressly authorise the construction of the kitchen. Hence landlord again filed a suit for eviction. It was held that the construction of a permanent structure

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namely kitchen without the permission of the landlord is a breach of conditions of tenancy contained in Section 108, T.P. Act. The covenants set out in Section 108, T.P. Act are implied in every lessee in the absence of a contract or local usage to the contrary. It was further held that merely because the terms of the lease are contained in a document, Sections 91 and 92 of the Evidence Actwould not prohibit the Court from importing into the lease the covenants or conditions implied in Section 108, T.P. Act . A provision of law is neither a statement of a witness nor a document produced for inspection of Court. In importing the conditions of Section 108 the Court is not admitting any evidence. There is nothing in Section 92 which prohibits the Court from considering the evidence regarding other terms and conditions which are not in conflict with the terms of the contract, if the document does not record or purport to record all the terms of the contract between two parties. The plaintiff's own oral evidence is admissible to establish the defence case of invalidity of the document concerned. 4 It is open to a judgment-debtor to plead a pre-decretal agreement which does not attack the decree but which states that the decree cannot be executed under certain conditions or it can be executed only in part. Such an agreement is not affected by Section 92, Evidence Act, as it does not amount to a modification, alteration or variation of the decree. 5 In a case of a possessory mortgage and rent note, where the rent was equivalent to the interest on the mortgage, where the mortgagor filed a suit for eviction and arrears of rent, and the mortgagee contended that there was no relationship of landlord and tenant, as the two documents constituted a single transaction of mortgage. It was held that the bar of Section 92 applies only when it is sought to be proved that the terms of the transaction were different and not that the transaction itself was different than what it purported to be. Both Sections 91 and 92 are based on the best evidence rule. Section 92 is only supplementary to Section 91. If there is no inconsistency and if the language of the document is not ambiguous or obscure and the case does not fall in any of the six provisos to Section 92, the document would have solely to be construed on its own terms. The oral evidence as regards intention would therefore always be admissible to prove the real nature of the transaction. The real question being what is the true nature of the transaction, the same would have to be found out by looking at the contents of the document, the surrounding circumstances and by resorting even to the oral evidence of the parties. Looking at the rent note there were two different relationships with two different legal consequences and following the rule of harmonious construction, both the documents could be given effect to at the same time. When there was no inconsistency, there could also be no question that earlier part of the transaction, viz., the mortgage would prevail over the subsequent part, the lease, because both the parts could be given effect to. In such a case there would be no room for application of any of the provisos to Section 92 and the bar would remain absolute. The documents must be construed on their terms. 6 The rights of the legatees under a will cannot be established by varying or adding up to the terms of agreement by adducing oral evidence. 7 The parties who undervalue their documents, for the purpose of payment of stamp duty, cannot be subsequently allowed to claim that their documents do not reflect the correct market value. 8 72 Nandan Mohanamma v. Markonda Narasimha Rao, AIR 2006 AP 8. 73 Dagdu v. Nama, (1910) 12 Bom LR 972; Namdev v. Dhondu, (1920) 22 Bom 979 : ILR 44 Bom 961; Ramlochan v. Pradip Singh, AIR 1959 Pat 230. 74 Yasudevan Namboori v. Poranchu Devassi, (1956) TC 704. 75 Hira Mistan v. Rustom Jamshedji Noble, 2000 AIHC 1543 (para 24) (Bom). 76 Ram Narain v. Manki Singh, (1954) 33 Pat 638. 77 Raj Kumar Rajendra Singh v. State, AIR 1990 SC 1833. 78 Kondiram v. Gundappa, 1955 Hyd 400. 79 Hanif-un-nisa v. Faiz-un-nisa, 39 IA 85 : ILR 33 All 340 (PC).

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80 Rakkiyana v. Chinnu, AIR 1954 Mad 84 : ILR (1954) Mad 271. 81 K.S. Mian Feroz Shah v. Sohbat Khan, AIR 1954 Mad 84 : 1933 PC 178 : 60 IA 273; Collector of Etah v. Kishorilal, AIR 1930 All 721. 82 AIR 1949 PC 32. 83 Sara Veeraswami v. Talluri Narayya, AIR 1949 PC 32; See also Sisir v. Naran, 33 Cal WN 591; Harkishandas v. Bai Dhanu, ILR 56 Bom 566; Sahadeo v. Namdeo, AIR 1949 Nag 15. 84 Thatha Rao v. Jummarlal, ILR (1952) Hyd 373. Also see Fabril Gasosa v. Labour Commissioner, AIR 1997 SC 954. 85 Radha Soami Satsang Sabha Dayal Bag v. Hans Kumar Kishanchand, AIR 1959 MP 172. 86 Gita Bai w/o. Sriniwas v. Dayaram Shankar, AIR 1970 Bom 160. See also Dodla Kumaraswami Reddy v. Dodla China Abbayireddy, 2002 AIHC 2054, 2060 (paras 31, 32) (AP); Dulichand v. Bhandari Das, AIR 2004 Raj 70, 72, para 10 : 2004 (2) Bank Cas 538 : 2004 Bank J 509 : 2004 (1) Raj LR 825 : 2004 (1) Raj LW 498. 87 Municipal Corporation, Ludhiana v. Balinder Bachan Singh, (2004) 5 SCC 182, 187 (paras 17 and 19) : (2004) 5 JT 226. 88 Punit Mahton v. Mahabir Mahton, AIR 1959 Pat 531; following Ariyaputhira Pada Yachi v. Muthu Kumara Swami Padavachi, AIR 1914 Mad 489; Ramachandra Sau v. Kailash Chandra Patra, AIR 1931 Cal 667; and dissenting from G.P. Mallappa v. Natam Naga Chetty, AIR 1919 Mad 833; Mohammed Niaz Ahemd Khan v. Nanhe Mal, AIR 1929 All 615. 89 16 Cal WN 137. 90 Ramavatar v. Tulsi, 16 Cal WN 137; Kamala v. Babunandan, 11 CLJ 39; Tarapada v. Hajia, AIR 1956 Cal 625; Balam v. Sadireddi, AIR 1928 Mad 233; Narain v. Mahanth, AIR 1952 Pat 421; Lakshmi Narasimha Rao v. Raghavamma, AIR 1936 Mad 380; Madari v. Baldep, ILR 27 All 351(FB) ; Ram Baksh v. Durjan, 9 All 392; Indrajit v. Lalchand , Affirmed in 22 All 370 in 16 All 168; Ariyaputhira v. Muthu Kumarasami, ILR 37 Mad 423. 91 T.K. Shanmuga Sundara Mudaliar v. S.C. Sivalinga Mudaliar, AIR 1952 Mad 675. 92 Chacko Joseph v. Varghese Markose, AIR 1957 Ker 181(DB) : ILR 1957 Ker 475, relying on Delli Gramani v. Ramachandran, AIR 1953 Mad 769. 93 Balthazar v. Firm, E.M. Abowath, AIR 1921 PC 129. 94 Lekhraj Diddi v. Sawan Singh, AIR 1971 MP 172; Jaswant Rai v. Abnash Kaur, (1974) 1 Del 689; Ramchandran v. Y. Theva Nesom Ammal, AIR 2003 Mad 262, 265 (para 14); State of Kerala v. M.A. Babu, AIR 2003 Ker 278. 95 Shiv Kumari Gupta v. Hameeda Bibi, 2005 AIHC 697, 699 (para 10) (All). 96 Mathura Mahto v. Jagdish Mahto, 2002 AIHC 3272, 3274 (para 10) (Jhar). 97 AIR 1979 SC 798; Skylines Advertising (P.) Ltd. v. National Airport Authority, 2005 AIHC 3408, 3416 (para 39) (Kant). 98 AIR 1977 SC 1285. 1 Sudhir Tiwari v. Bhagwanti Devi Issarani, 2002 AIHC 2270, 2273, para 11 (MP). 2 Niranjan Kumar v. Dhyan Singh, AIR 1976 SC 2400. 3 AIR 1980 Pat. 120. 4 Sitaram Lal v. Jameswar Das, AIR 1995 Ori 260 (para 8). 5 Perumalswami Chettiar v. Rajammal, AIR 1955 Mad 339(DB) following Adappa Papamma v. Darbha Venkayya, AIR 1935 Mad 860(FB) . 6 Heirs of Late Jata Shankar Fulchand Mehta v. Heirs of Late Mavji Trikam, AIR 1969 Guj 169. 7 Mohanlal Dungarmal Futnani v. Vishanji Dungarmal Futnani, AIR 2001 Cal 122 (para 22). 8 Krishi Utpadan Mandi Samiti, Sahaswan v. Bipin Kumar, AIR 2004 SC 2895, para 7 : (2004) 2 SCC 283.

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11. DISCHARGE OF LIABILITY Where a suit was filed on the basis of a demand pronote, the defendant pleaded a collateral agreement to receive the usufruct of certain plots in repayment of the debt, it was held that oral evidence of the collateral agreement to prove the discharge of liability was admissible. 9 Where a partnership was formed by a registered deed for five years oral evidence to prove dissolution of the partnership much earlier and payment to the partners or one of the partners in accordance to their respective share was held admissible. 10 If the oral agreement does not contradict the main terms of the written contract but a change is made as to the mode of discharge of his obligation to suit the convenience of the parties, it is not hit by Section 92. 11 In a suit to enforce a mortgage, it is open to the mortgagor to plead discharge on the basis of an oral agreement by which the mortgagee undertook to take a portion of the mortgaged property for sale in full discharge for the mortgage debt. 12 When a mortgagee filed a suit for sale of mortgaged property, an oral agreement was set up stating that some persons interested in the plaintiff brought about an agreement that mortgage amount should be settled for Rs. 9,000/- and a certain portion of the mortgage property should be sold to the plaintiff, in full discharge of the claim, it was held that the mortgagor (defendant) can adduce oral evidence in proof of oral agreement. 13 Where in the case of a simple mortgage the parties by a subsequent oral agreement, put the mortgagee in possession of the mortgaged lands for recovery of interest, it is merely an agreement creating a machinery for discharging interest and it is not hit by Section 92. 14 When the separate agreement does not have the effect of varying or contradicting or adding to the terms of the deed between the parties, oral evidence is permissible. But, if it varies, contradicts or adds to the terms of the deed, oral evidence cannot be permitted. 15 9 Ram Jatan v. Chandra Bali, dissenting in AIR 1960 All 746; Chhaganlal v. Jagjiwandas, AIR 1940 Bom 54; Vishnu Ramachandra v. Ganesh Krishna Sathe, AIR 1921 Bom 449. 10 Liladhar v. Sunderlal, AIR 1932 Nag 32. 11 Kunjuvaried v. Radhalekshmi Naithiyaramma, AIR 1955 Tra Co. 69(FB) . 12 Krishnaswami Rao v. Srinivasa Desikan, AIR 1937 Mad 261; Krishnaji v. Kashirao, AIR 1926 Nag 220; contra Suklal Rambakas v. Jetha Opajishet, AIR 1928 Bom 522. 13 Krishnaswamy Rao v. Srinivasa Desikan, AIR 1937 Mad 261; see contra Md. Niaz v. Nanhe Mal, AIR 1929 All 615. 14 Patel Kempegowda v. Channaveeraiah, ILR (1957) Mys 277 : AIR 1958 Mys 43(DB) ; Kailash Chandra Deb v. Jogendra Chandra Datta, AIR 1956 Tri 6; Padam Dasi v. Saraswati Bewa, ILR 1969 Cut 580. 15 Punit Mahaton v. Mahabir Mahaton, AIR 1959 Pat 531.

12. VARYING The executant of a promissory note cannot be permitted to prove a separate agreement according to which the sum specified in the note was not, as expressed therein, payable on demand, but only after the adjustment of some accounts between the parties. 16 This case has been dissented from in a subsequent case in which the same High Court held that evidence to show that an instrument like a promissory note, the title to which generally passes by delivery, was delivered conditionally or for a special purpose only, and not for the purpose of transferring absolutely the property therein, is not only admissible but is precisely the class of evidence contemplated by Sections 46 of the Negotiable Instruments Act and this section.17 No oral evidence is admissible to vary the amount of price fixed in a registered sale-deed, 18 or the terms of a cheque which is a negotiable instrument 19 or the rate of interest different 20 from that in the written contract. An out and out gift cannot be altered by oral evidence into a will which has to take effect after the death of the donor, as it amounts to varying the term of the gift which comes into existence as and when the deed is executed. 21 It is not open to a party to a document to prove by oral evidence a variation in the terms of the document or as to the amount of consideration shown in the document. The oral agreement would then amount to a

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modification of the original contract and is inadmissible under Section 92. 22 Tenure or period of service or employment being an express term in writing any oral evidence contradicting or varying the same is not admissible. 23 Proof of implied warranty must rest on the terms of the sale deed and it is not open to travel outside the deed. 24 One member gave security for a loan raised by other members of a joint family, describing that the property belongs to him. It was held that no oral evidence can be given to vary the recital by showing that it was joint family property. 25 Under Section 128, Contract Act, the liability of a surety is co-extensive with the principal debtor, unless otherwise provided in the contract. Oral evidence is inadmissible to show that one of the executants was only a surety. 26 The Rangoon High Court has dissented from this view and held that oral evidence to show that one of the executants of a monetary bond to the knowledge of the money-lender signed it only as a surety is not admissible. 27 The Privy Council has held that oral evidence is inadmissible to show that the person who has signed a promissory note is not liable but someone else is 28 . Oral evidence was not allowed to contradict the contents of a written deed of liability to a bank. 29 If in a suit based on promissory note the court finds that substantially the plea taken by the defendant is a variation of the terms of written contract viz., the promissory note, oral evidence to prove the plea is excluded. If, however, the plea amounts to a complete discharge then perhaps oral evidence relating to discharge is admissible and the matter will have to be gone into on that basis. 30 Where a lease deed is in favour of X and Y, Section 92, of the Evidence Act, 1872, is clearly a bar to the plea by X that Y is merely a surety. 31 One of the executants cannot also show that his liability would arise only on the failure of the other executant to pay the amount. 32 The words 'between the parties to any such instrument' do not preclude one of two persons in whose favour a deed of sale is purported to have been executed from proving by oral evidence in a suit by the one against the other, that the defendant was not a real but a nominal party only to a purchase, and that the plaintiff was solely entitled to the property to which it related. M conveyed certain houses and premises to plaintiff and defendant jointly by a sale-deed. Plaintiff sued defendant for ejectment from the premises, alleging that he alone was the real purchaser, and that the defendant was only nominally associated with him in the deed. It was held that this section did not preclude the plaintiff from showing by oral evidence that he alone was the real purchaser, notwithstanding that the defendant was described in the sale-deed as one of the two purchasers. 33 An oral agreement not to execute a decree, entered into between the parties after the filing of the suit and before the passing of the decree, provided the defendant did not contest the suit, is admissible in evidence as it does not vary the terms of the decree, and can be pleaded in bar of execution. 34 In Kochu Varki v. Cochin Thirumala Devaswam 35 the land leased comprised of partly garden land and partly paddy lands. A suit was filed for the lease amount. In respect of garden lands, the lease amount was claimed. One of the contentions raised was that there was no "pattom" fixed in respect of the garden land separately. The Devasthanam contended that pattom was fixed in respect of garden land and paddy land separately though it was not so mentioned specifically in the contract of lease and referred to both oral and documentary evidence. The defendant wanted to show that the pattom shown in the document was the sum total of the pattom separately fixed in respect of, garden and paddy lands and how it was arrived at. It was held that this did not amount to varying, contradicting, adding to or subtracting from the terms of the document and hence it was held Section 92 was not a bar. Varying the terms of mortgage deed by unregistered deed for seeking possession would be of no avail as the said unregistered deed would not be admissible. 36 16 Sri Ram v. Sobha Ram Gopal Rai, (1922) 44 All 521. 17 Sheo Prasad v. Gobind Prasad, (1927) 49 All 464; Bhogi Ram v. Kishori Lal, (1928) 50 All 754. 18 Adityan Iyer v. Rama Krishna Iyer, (1913) 38 Mad 514. See also Mohammed Sheriff Alnahary v. K.T. Kunjumon, 2001 AIHC 4305 (paras 12 and 13) (Mad). 19 Walter Mitchell v. A.K. Tennent, (1925) 52 Cal 677.

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20 Fitz-Holmes v. Bank of Upper India Ltd., (1923) 4 Lah 258. 21 Mottayappan v. Palani Goundan, ILR 1938 Mad 226; Benode Kishore Goswamy v. Asuthosh Mukhopadhya, 16 Cal WN 666. 22 Mathai v. Krishnasami Iyar, 1960 Ker LJ 962 relying on Beharilal v. Allahabad Bank Ltd., AIR 1929 All 664; G.P. Mallappa v. Matam Naga Chetty, AIR 1919 Mad 833(FB) ; Motilal Singh v. Mt. Fulia, AIR 1958 Pat 61; Fabril Gasosa v. Labour Commissioner, AIR 1997 SC 954. 23 Bikash Chandra v. Macniel, (1972) 1 Cal 157. 24 M. Delli Gramani v. C.R. Rama Chandra, AIR 1953 Mad 769(DB) . 25 Manjula Bai v. Manikchand, ILR (1977) Bom 833(DB) . 26 Hodges v. Delhi & London Bank, ILR 23 All 137; Radha Kishen v. Durga, ILR 59 Cal 106; Khumaji Gojaji & Co. v. Damaji, AIR 1934 Bom 39; Kristhayya v. Karneda, AIR 1935 Mad 643. 27 Maung Ko Gyi v. U. Kyaw, (1927) 5 Ran 168. 28 National Bank of Upper India Limited v. Bansidhar, (1929) 5 Luck 1, 32 Bom LR 136, 57 IA 1; Khumaji Gajaji & Co. v. Damaji, (1933) 35 Bom LR 1197 : AIR 1934 Bom 39. 29 Janki v. Ganesh Ram, AIR 1984 All 219. An altered deed cannot be put in evidence because it amounts to variation. Suresh Chandra v. Satish Chandra, AIR 1983 All 81. 30 C.K. Kuppuramulu v. A. Varadarajulu, AIR 1973 Mad 479. 31 Mulchand v. Madho Ram, (1888) 10 All 421; Gopaldoss Family Trust Estate v. Michaelswani Pillai, (1964) 1 Mad 443 following Mulchand v. Madho Ram, ILR 10 All 421; dissenting from Arumoorthi Chettiar v. Secandary Education Committee, AIR 1962 Mad 360. 32 Narasimna v. Ramaswami, 24 MLJ 91; Maneekjee v. Mg Po, AIR 1925 Rang 83. 33 Mulchand v. Madho Ram, (1888) 10 All 421. See Pokal Gungayah v. Ismail Mohomed Madaree, (1895) 2 UBR (1892-96) 354. 34 Papamma v. Venkayya, (1935) 58 Mad 994, (FB); disapproving Rajah of Kalahasti v. Venkatadri Rao, (1927) 50 Mad 897; Goseti Subba Row v. Varigonda Narasimham, (1903) 27 Mad 368; Chidambaram Chettiar v. Krishna Vathiyar, (1916) 40 Mad 233(FB) ; Laldas v. Kishordas, (1896) 22 Bom 463(FB) . contra Benode Lal Pakrashi v. Brajendra Kumar Saha, (1902) 29 Cal 810; Hassan Ali v. Gauzi Ali Mir, (1903) 31 Cal 179. 35 AIR 1952 TC 387 FB. 36 M.K. Seetharama Naidu v. Poovammal, AIR 2001 Mad 343 (para 10).

13. ADDING TO The Privy Council in Sara Veeraswami v. Narayya, 37 while approving Harkisan Das Bhagwan Das v. Bai Dhanu 38 and the decision in Ma Nan Shein v. U. Yaing 39 at page 494 in 40 observed: "In their Lordships' opinion the correct way of stating the proposition is to say that the agreement reached covered several matters but that the intention was that each of these should be effected as a separate and independent transaction. There was to be an outright sale and that, upon the happening of a certain event, was to be followed by a reconveyance of what had been sold. The second transaction, by its very nature, promised the previous completion of the first. Both, it is true, may be taken as arranged at the same time and agreement upon the part of the bargain may well have promoted agreement as to the rest, but such considerations do not necessarily affect the final result of the bargaining. The determining factor lies in the ultimate shape of the agreement rather than in the process by which it is reached. An oral stipulation may be purely collateral to the written agreement which it has induced, and that though both touch on a common subject matter--such being the character of the agreement in question--their Lordships find it impossible to hold that it contradicted, varied, or subtracted from the terms of the sale deed. On the contrary, it left those terms and the interest passing thereunder to the purchaser entirely unaffected. Can it then be said to have added to

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the terms of the sale deed? The words "adding to" which are part of Section 92, must receive their due weight, but in the opinion of their Lordships, they do not suffice to exclude the oral agreement relied upon their appellant. To add a stipulation which is quite unconnected with the terms of sale is not, in the view of their Lordships, an addition of the kind struck at by this section. 41 An agreement as to implied warranty regarding the correctness of the extent of the property sold should be established on the terms of the sale deed and it is not open to the plaintiff to travel outside the deed and to adduce evidence to prove that there was a warranty de hors the instrument. 42 In an agreement to sell joint family property, signed by a member of the joint family, there was no stipulation that the person signing the agreement would get the sale deed signed by the brothers also. Oral evidence to add this fact to terms of agreement was held to be barred by Section 92. 43 Where prior to the execution of the sale deed it was agreed between the parties to the deed that the purchaser would pay the amount of taccavi loan due from the vendor to the Government in case it was recovered from him but there was no reference to this agreement in the deed of sale and a suit was brought to enforce the agreement, it was held that proviso (1) to Section 92, did not apply to the case as no question of want or failure of consideration of the deed of sale arose; nor was proviso (2) applicable as the deed was not silent on the point of consideration. The court could not, therefore, go behind the deed of sale which embodied the terms and enforce the agreement. 44 Specific performance is an equitable relief and the contract of which specific performance is sought, must be precise and no oral evidence is admissible to add to the terms or contents. If the terms are uncertain it must be held as void under Section 29 of the Contract Act . 45 37 ILR 1949 Mad 487 : AIR 1949 PC 32. 38 AIR 1926 Bom 497 : ILR 50 Bom 566 (FB). 39 AIR 1927 Rang 314. 40 ILR 1949 Mad 487. 41 See also Lakshmichand v. Yashoda bhai, 1954 Nag LJ 293, 295. 42 Delli Gramani v. Ramachandran, AIR 1953 Mad 769. 43 Hari Singh v. Umrao Singh, AIR 1979 All 65; Shri Krishna Keshav Kulkarni v. Balaji Ganesh Kulkarni, AIR 1976 Bom 342. 44 Mokhelal v. Seth Kisanlal, AIR 1950 Nag 44. 45 Phulhari Devi (Smt. ) v. Mithai Lal, AIR 1971 All 494.

14. ITS TERMS The question whether oral evidence can be admitted to explain contents of document depends upon the degree of formality of document. 46 The expression 'terms' of a contract in Section 91 and the corresponding expression in Section 92 have no application to a statement, contained in a writing which is in the nature of a condition precedent to the very formation of that contract. 47 Normally, a person, who subscribes to a deed must be bound by all the recitals contained therein. Nevertheless, a lessee is not precluded from showing that despite the recitals to the contrary in the deed of settlement to which he is a signatory, he was not put in possession and occupation of the lands which he took under the settlement. Nor is the lessor precluded from showing that he had not received his outstanding part of the nazrana money due from the lessee although the deed contained a recital that it had been paid by the lessee. 48 Where a person enters into a contract for purchase of an agricultural land for building purposes on the representation of the seller that the permission of the authorities for conversion of the land to building

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sites was expected shortly, the representation cannot be regarded as a term of the contract and therefore, oral evidence as to the representation cannot be excluded. 49 A recital in the sale deed concerning encumbrances is not a term of the sale deed and therefore, evidence to prove that the purchaser was aware of defect is not inadmissible under Section 92. 50 46 N. Chellaperumal v. N.M. Jayarathnam, AIR 1960 Mad 314. 47 P.B. Bhatt v. V.R. Thakkar, AIR 1972 Bom 365. 48 Pura Nand Puri v. Kamala Sinha, 1965 Pat 39. 49 Anant Shamrao v. Nensukh Bherulal Kucheriya, AIR 1956 Bom 252. See also Mohan Rai v. State of Bihar, AIR 1994 Pat 42 (paras 6 and 7). 50 R. Muninarayana Reddy v. C.P. Chinnaswamy, AIR 1952 Mys 120.

15. NATURE OF THE DOCUMENT In Tyagaraja Mudaliyar v. Vedathanni, 51 it was held that if the parties to a written agreement, wish to establish that they never agreed to contract on the terms set forth in the document, or that they did not intend to act upon the document, oral evidence could be adduced to establish the same. 52 It is open to A to prove that he executed a sale deed benami in favour of B in order to defeat the claims of a creditor. In such a case, if the contemplated fraud was not carried out and was not effected in whole or in part, there is nothing preventing the plaintiff from repudiating the transaction as being benami and recovering possession of the property. In such a case, the question is not one under Section 92 regarding proof of a collateral oral agreement under which B is to hold the property for the benefit of A but is really a case where the transferor seeks to establish by attendant circumstances that he did not intend by his deed to dispose of the beneficial interest in the property to the transferee and that therefore he must hold the property for his benefit. 53 Where there is no dispute that the act ual contract between the parties was one recorded in the deed, it is not thereafter open to the parties to let in oral evidence to prove that its terms were different from what is contained in the deed. Section 92 precludes such a course. But it does not preclude the parties fromshowing that the real nature of the transaction was different from what the document purports to show. 54 Parol evidence is admissible to show that a contract embodied in a document was never intended to be acted upon but was made for some collateral purpose. 55 Oral evidence to prove that deed was not to operate as agreement but was brought into existence for creating evidence of such matter, is permissible. 56 In order to attract the provision of Section 92, there should be a contract in existence. When a party pleads that there was no contract at all or that an instrument which had been brought into existence earlier was only a sham one not intended to be act ed upon, it would be open to him to establish by oral evidence that there was no intention on the part of the parties to bring into existence a contract or an effective document. 57 Sections 91 and 92 do not preclude a party from giving evidence to show that the written agreement executed was never intended to operate as an agreement, but was brought into existence solely for creating the evidence of some other matter, or there was no agreement between the parties and there was no valid contract as per the terms of embodied therein. 58 As a broad and distinct rule of law, extrinsic evidence of every material fact which will enable the court to ascertain the nature and qualities of the subject matter of the instrument or to identify the persons and things to which the instrument refers, must be necessarily received. 59 It is open to a party to prove that a particular transaction was not consented to by him; Section 92 excludes oral evidence to vary the terms of the written contract, but has no reference to the question whether the parties agreed to contract on the terms set forth in the document. 60 One cannot be allowed to show that a pronote was not really executed in favour of the plaintiff or that he discharged the debt by payment to another really interested. 61 But in the case of partnership, where its partner executed a pronote in his own name, it was held that the promisee can show an

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independent contract to bind all the partners and the normal rule that the maker can only be held liable is not applicable. 62 Section 92 does not exclude oral evidence to prove that the transaction evidenced by a written instrument is fictitious or benami or was not intended to be acted upon and was executed to defeat the claims of some creditors and it was not intended by his deed to dispose of the beneficial interest in the property to the transferee. 63 However it was held, that it is not open to the parties to prove that a lease is a benami transaction as the same would amount to varying the terms of the contract itself. 64 It is submitted that this decision is contrary to the decision of the Privy Council in Thyagaraja's case and also to an earlier bench decision of the Patna High Court. 65 Regarding the question whether the document was a sale or mortgage oral evidence regarding the intention of the parties is not permissible. 66 Evidence is not permissible to show that a deed was intended to be a mortgage deed though it purported to be a sale deed. 67 Section 92 does not preclude defendant from showing by oral evidence that rent mentioned in rent note was only device for payment of interest on loan as interest was in contravention of Section 25(2)of Bombay Money Lenders Act of 1947.68 Extraneous evidence to prove that the deed of gift is not what it purports to be cannot be admitted in evidence. 69 The subsequent conduct of a transferee in dealing with the transferred property may be relevant only if it is of material assistance in establishing the nature of the transaction or the intent of the transferor in entering into that transaction. But subsequent conduct may also be the result of a subsequent change in design in which case such subsequent conduct will not adversely affect the validity and genuineness or minimise or nullify the operative effect of a bona fide transaction made earlier. 70 Though oral evidence of intention is excluded under Section 92, which prescribes a rule of evidence, it does not fetter the court's power to arrive at the true meaning of a document in the light of all the circumstances surrounding the transaction. 71 The rule as to "surrounding circumstances" cannot be excluded to enable a party to prove that when he wrote one thing he meant something totally different. 72

In case the validity is impeached the court is not precluded from inquiring into the real nature of the transaction between them. The proviso declares that any fact may be proved which would invalidate any document. 73 Where a document showed that the transfer of property was by sale, but Section 92 is no bar to prove it to be not a sale but a gift or family arrangement. 74 If a sale and agreement to reconvey are not embodied in one and same document, the seller is not precluded from showing that transaction was not an out and out sale. 75 Where the language of the written instrument evidences an outright and unconditional sale, oral evidence to show that it was only intended to operate as a mortgage or a trust deed is not admissible, as it would amount to contradiction, variation, addition or subtraction from the written grant. 76 51 1936 PC 70 : 59 Mad 446 (PC), followed in Bimbadhar Rout v. Kuna Senapati, AIR 1995 Ori 258 (para 4). 52 See also, 7 Mad HC 196. 53 Rakkiyana v. Chinnu AIR 1954 Mad 84. 54 Arumoorthi Chettiar v. Secondary Education Committee of Vallalasanpan of Vadugupatti, AIR 1962 Mad 360; Sidramappa Basappa v. Bipinchand Fulchand Gandhi, ILR (1978) Bom 344; Sukumar Bysack v. Sushil Kanta Banerjee, 1972 Cal 207(DB) . 55 Sumati Bala Majunder (Smt. ) v. Narendra Kumar Das, AIR 1975 Gau 43; Tyagaraja Mudaliyar v. Vedathanni, AIR 1936 PC 70; Asaram v. Ludheshwar, 1938 Nag 335(FB) . 56 Bhuralal v. Bhiriya Awaroop Singh Deshmali, AIR 1963 MP 210. 57 Syed Rasool v. Mohammad Moulana, AIR 1977 Kant 173. 58 Yadav Ram v. Laxman Singh Bisht, AIR 1978 All 123(DB) ; Tyagaraja Mudaliyar v. Vedathanni, AIR 1936 PC 70; Baikoli Divya v. Harihar, ILR 1966 Cut 236.

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59 Bank of New Zealand v. Simpson, AIR 1900 AC 182, 188; Charrington v. Wooder, AIR 1914 AC 71. 60 Tyagaraja Mudaliyar v. Vedathanni, following AIR 1936 PC 70; Shrinarayan Rambilas v. Bhasker Waman, AIR 1954 Nag 193(DB) ; Dominion of India, New Delhi v. Ram Rakha Mall & Sons, AIR 1957 Punj 141(DB) ; Ramachandraji v. Devendra Singh, (1966) 1 All 430. 61 Subba Narayanavathias v. Ramaswami Aigar, ILR 30 Mad 88(FB) ; Madan Lal v. Lalchand, AIR 1927 All 463. 62 Venkatachalapati v. Ramakrishnayya, AIR 1930 Mad 168; Kara Abdulla v. Jiwanjii, AIR 1914 PC 132(PC) ; Shanmuganatha v. Srinivasa, ILR 40 Mad 727(PC) . 63 Thyagaraja Mudliar v. Vedathanni, AIR 1936 PC 70; Gangabai v. Chhabubai, AIR 1982 SC 20; Noor Mohammad v. Piru, AIR 1958 Raj 280; Ramnarayan v. Kedarnath, AIR 1965 Pat 463; A. Rakkiyana Gounder v. Chinnu Gounder, AIR 1954 Mad 84(DB) ; Syed Rasool v. Md. Moulana, AIR 1977 Kant 173; Asaram v. Ludheswar, AIR 1938 Nag 355. 64 Ranvijaya Shahi v. Bala Prasad, AIR 1978 Pat 91. 65 Ram Narayan v. Kedarnath, AIR 1965 Pat 463(DB) . 66 Chuttu v. Abdul Jabbar, AIR 1956 Bhopal 59; Narsingadas v. Radha Kisan, AIR 1952 Bom 425. 67 Irappa Channappa Gondi v. Tirkappa Hanamanthappa Baski, (1963) 1 Mys LJ 592; relying on K.S. Mian Feroz Shah v. Sohbat Khan, AIR 1933 PC 178; Kondiram v. Gundappa, AIR 1955 Hyd 179; dissenting from Narayanappa v. Latchmakka, AIR 1958 Mys LJ 476. 68 Sidramappa Basappa v. Bipinchand Fulchand Gandhi, ILR 1978 Bom 344. 69 Kanak Sunder Bibi v. Ramlakhan Pandey, AIR 1955 Pat 458(DB) . 70 Md. Sabir Ali v. Tahir Ali, AIR 1957 All 94(DB) : (1954) 2 All 556. 71 Baijnath v. Hajee Valley Mohammad, 30 CWN 242 : AIR 1925 PC 75. 72 Afshar M.M. Tacki v. Dharamsey, AIR 1947 Bom 98. 73 Beni Madhab Dass v. Sadasook Kotary, (1905) 32 Cal 437(FB) ; Ma Thin Myaing v. Maung Gyi, (1923) 1 Ran 351. 74 Mania (Smt. ) v. Dy. Director of Consolidation U.P., AIR 1971 All 151; following in Baijnath Singh v. Vally Mahomed Hajee Abba, AIR 1925 PC 75; Munna Singh v. Narain Singh, AIR 1929 Nag 91. 75 Pt. Krishna Chandra Sharma v. Ms. Ram Gulam, AIR 1958 MP 295(DB) ; Janki Bai v. K. Subba Rao, 1962 Mys LJ 534(Sup) . 76 Cheriyathu Mathai v. Thomas, AIR 1956 Tra/Co 193 (DB); relying on Maung Kyin v. Ma Shwe La, AIR 1917 PC 207; K.S. Mian Feroz Shah v. Sohbat Khan, AIR 1933 PC 178 ; Balkishendas v. Legge, ILR 22 All 149(PC) .

16. SURROUNDING CIRCUMSTANCES The question whether the document is a mortgage by conditional sale or a sale with condition for retransfer, is one of determination of real character of the transaction to be ascertained from provisions or document viewed in light of surrounding circumstances. 77 The evidence of the surrounding circumstances under which the document was brought about may, be given to show that the transaction is not what it appears to be and that the apparent tenor is not its real character. 78 Where any part of the consideration has not been paid to the vendor, and the property is not delivered to the vendee and the sale deed is in the custody of the vendor himself, it cannot be held that the title to the property has passed to the vendee, as there are telling circumstances to show that it was not the intention of the parties that title would pass irrespective of non-payment of consideration. 79 Evidence of contemporaneous conduct is always admissible as a surrounding circumstance but evidence of subsequent conduct of the parties is inadmissible. 80

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Extrinsic evidence can be considered in construction of a sale deed.

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It was held that under Section 5, Mysore Agriculturists' Relief Act, plaintiff can show that alleged usufructuary mortgage was a simple mortgage. 82 77 P.L. Bapuswami v. N. Pattay Gounder, 1966 SC 902; Mt. Qayum Unissa v. Rashidul Malik, AIR 1952 All 200(DB) ; Jhanda Singh v. Sheik Wahiduddin, AIR 1916 PC 49 : ILR 38 All 570. 78 Balumal Firm v. Venkata Chelapathi Rao, AIR 1955 Mad 78; dissenting from Martand Trimbak v. Amritrao, AIR 1925 Bom 501. 79 Ramchandra Biharilal, Firm v. Mathuramohan Naik, AIR 1964 Ori 239 : (1964) Cut 551. 80 Shyamlal v. Shyam Narain, AIR 1973 All 234. 81 Becharbhai v. Md. Patel Khushalbhai Ravjibhai, AIR 1975 Guj 98; relying on Abdulla Ahmed v. Animendra Kissen Mitter, AIR 1950 SC 15; Chunilal V. Mehta and Sons Ltd. v. Century Spinning and Manufacturing Co. Ltd., AIR 1962 SC 1314; Bhusawal Borough Municipality v. Amalgamated Electricity Co. Ltd., AIR 1966 SC 1652; distinguished Gurunath v. Suryakant, AIR 1940 Bom 225; dissented from Basudev v. Somenath Das, AIR 1964 Ori 63. 82 Marasimial v. Venkatappa, AIR 1957 Mys 86(DB) .

17. TERMS (a) Benami transaction . --This section applies only to the terms of a transfer and does not preclude the admission of any evidence to show the benami character of the transaction. 83 The Supreme Court allowed oral evidence to show that the real tenant was someone other than the ostensible tenant. 84 Section 92 does not exclude oral evidence to show who are real contracting parties as they are the authors of the terms of the contract and not the terms. 85 When the question is whether under the terms of contract, a contracting party acted for himself or as agent for some other principal, Section 92 does not apply and parol evidence is admissible. 86 A contract note is not conclusive of the real relation of the parties to the contract and evidence can be given to prove whether a party contracted as agent or in the capacity of seller or buyer in the transaction. 87 Where a particular place in a route is or is not covered by permit has to be determined by the Transport Authority by having recourse to the permit itself. Oral admission by the operator on this matter is inadmissible, unless he is entitled to give secondary evidence of the contents of the permit.

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A different view has been taken in the under mentioned cases where a party makes an agreement in writing in his own name and contributes his signature, he cannot produce evidence to show that he merely act ed as a third party's agent and the plaintiff had knowledge of the same. 89 Contract. --Oral agreement to liquidate the loan under the pronote from out of the usufruct of the land possession of which was given to plaintiff, can be proved to show the discharge of the loan under proviso 3 to Section 92 if it is not a case of a collateral agreement when by the plaintiff would be compelled to recover the consideration in a way different from the recitals in the promissory note in which case the oral agreement would be inadmissible as contrary to the terms. 90 A usufructuary mortgagee has a right to show that he has not been put into possession of the mortgaged property. 91 It does not prevent a party to a contract from showing by oral evidence that the consideration is different from that described in the contract. It is therefore open to a party to show that the part of the consideration as to rent payable in terms of a lease represented a past debt for rent and not a future liability arising under the contract. 92 Oral evidence can be adduced as to what exactly was the nature of consideration. 93 It is open to establish by evidence that the consideration was really different from the consideration recited in the deed as it is not a term of the sale deed. 94 Proving absence or failure of consideration is different from proving different amount of consideration i.e., something other than what was mentioned in the document. In the latter case evidence is not permissible as it will contradict the term regarding consideration. But in the former case it is not so; under Proviso 1 evidence may be adduced to prove want or failure of consideration. This is however, totally distinct from the amount of consideration. A statement in a document that a consideration has

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been paid is really a recital in a deed and does not constitute one of the terms of the contract. But the amount of consideration is obviously a term of the sale deed and, therefore, it is not open to a party to prove a variation in the amount of consideration. 95 Section 91 and 92 are a complete ban to any party to set up a case that the consideration for the sale is more than what was mentioned in the document, when it is not the case of the party that the consideration was not paid or that there was failure of consideration or the consideration agreed between the parties was of different kind than what was mentioned in the document. 96 The recital in a sale deed that there are no encumbrances on the property sold is not a term of contract and evidence to prove that the vendee was aware of certain liability on the property and purchased it subject to such liability is admissible. 97 Where the document consists of two parts namely, one, preamble or preliminary recital of a past fact and the other relating to terms of disposition of property. Section 92 of the Evidence Act prohibits only the varying of terms of the documents, not the memoranda or recitals of facts, bereft of dispositive terms, particularly when the correctness of the whole or any part of the recital is in question. It is settled law that a clear intimation by a co-parcener to the other co-parcener of his intention to sever the joint status need not be in writing. For these two fold reasons, the bar in Section 92, Evidence Act against the admissibility of extrinsic evidence for the purpose of showing that the insertion of the words 'for your maintenance' in the recitals was wrong, unreal, unmeaning and the coinage of the executant's own brain is not attracted. 98 Oral evidence of intention is not admissible in interpreting the covenants of the deed but evidence to explain or even to contradict the recitals as distinguished from the terms of the documents may, of course, be given. 99 These words when read with the words "as between the parties to any such instrument" which follow them, refer to bilateral instruments only and not to unilateral instruments, such as wills and powers-ofattorney. Oral evidence as to the 'terms' of a written contract is excluded. There is nothing to exclude oral evidence that there was no agreement between the parties and therefore no contract. 1 Plaintiffs sued for specific performance of an agreement in writing, which set forth, inter alia , that defendants had agreed to sell, etc., under "certain conditions as agreed upon". The defendants alleged that the written agreement did not contain the whole of the agreement between the parties and offered parol evidence in support of their contention. It was held that the parol evidence was admissible to show what was meant by the clause "certain conditions as agreed upon". 2 Section 92 applies only to concluded contracts and has nothing to do with negotiations before a written contract is concluded. Even if there is a concluded contract, it is always open under Section 92 provisos 2&6 to show how the terms of a document are related to the existing state of things. Where a document was a record of the terms of a validly concluded contract for sale between the parties the fact that it was described and called as receipt was immaterial. It was held, further that the document did not preclude the vendor from showing that the parties did not agree as to one of the terms in the sale deed and that there was no completed contract and the plea might either fall under proviso 3 or it might be taken as a plea not covered by Section 92 at all, namely that there was no contract at all. 3 If a hath-chitha is one, which contains only an acceptance of a liability and promise to pay a previous debt, there is no escape from the conclusion that it is an informal document, which need not contain all that had been agreed to between the parties. Therefore, it was open to the plaintiff to lead evidence to show a contemporaneous agreement between the parties in respect of payment of interest. 4 Section 92 does not debar the party to a contract from adducing evidence for the purpose of contradicting recitals of facts mentioned in the document. The bar imposed by this section applies only when a party seeks to rely upon the document embodying the terms of transaction. Consideration cannot be said to be a term of contract though it is interwoven with it. 5 The mere fact that both the parties have not signed a contract will not make the agreement oral within the meaning of Ss. 91 and 92, because these sections only require the terms to be reduced to writing and not the whole contract in the sense of signatures and dates and so forth. Even where signatures are absent on an agreement or the proposal and acceptance are not entered in it, it would still be hit

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by Ss. 91 and 92 provided the "terms" meaning all the terms, are embodied in the written agreement. The absence of signatures could be used as good evidence of the fact that the document was not intended to be final and binding. But the mere absence of signatures would not prevent the document from being the final depository of the intention of parties, any more than the presence of signatures would operate to bind if it could be established that the signing was conditional. 6 5b)   Deed of adoption.-- Where a party admits the existence of a deed of adoption and of its non-production in the court, his admission would not render oral evidence inadmissible to prove the adoptions it is not by virtue of the deed of adoption that a change of status of a person is effected. The adoption deed is only a piece of evidence and the failure of party to produce such a document does not render oral evidence in proof of adoption inadmissible. 7 Where adoption deed indicated that the adoption had taken place on the date of deed itself. The oral evidence that the adoption took place much before execution of said deed was held to be inadmissible in evidence as no oral evidence in contradiction with the terms of the written document could be adduced. 8 83 Richard Taylor v. Rajah of Parlakimedi, (1909) 32 Mad 443, 454; Pathammal v. Syed Kalai Ravuthar, (1903) 27 Mad 329. 84 Niranjan Kumar v. Dhyan Singh, AIR 1976 SC 2400. Oral evidence was allowed to show as to who were the parties to a benami transaction. Raj Ballav Das v. Haripada Das, AIR 1985 Cal 2. 85 Ram Narayan Pandey v. Kedarnath Tewari, AIR 1965 Pat 463; Guru Dayal Prasad v. L. Raghunath Prasad, ILR 31 Mad 45; Sohanlal Pachisia & Co. v. Bilasray, AIR 1954 Cal 179; Raj Ballav Das v. Haripada Das. AIR 1985 (Cal) 2. 86 AIR 1953 Sind 34. 87 Sohanlal Pachisia & Co. v. Bilasray Khemani, AIR 1954 Cal 179. 88 Shantilal Shivkumar v. Transport Appellate Tribunal, Rajasthan, 1967 Raj 138. 89 Ibrahmibhoy v. Hasan, AIR 1921 Bom 81; Rohtas v. Maharaja, (1951) 1 Cal 420; Sitaram v. Chimandas, ILR 52 Bom 640 (Agent of an undisclosed principal). 90 Ram Jatan v. Chandra Bali, AIR 1960 All 746. 91 Kanduri Naik v. Sapani Naik, AIR 1971 Ori 218. 92 Abdullakin v. Maung Ne Dun (1929) 7 Ran 292 : AIR 1929 Rang 240. 93 State Bank of India v. Premco Saw Mills, AIR 1984 Guj 93. 94 Rakkiyana v. Chinnu, AIR 1954 Mad 84(DB) . 95 Ananda Charan v. Hargobinda, AIR 1923 Cal 570 : 27 Cal WN 495; Motilal v. Fulia, AIR 1958 Pat 61; dissenting from Nabinchandra Chakravarthi v. Shuna Mala Ghose, AIR 1932 Cal 25; Muhammad Taqi Khan v. Jang Singh, AIR (1935) All 1(FB) ; Narasimhachari v. Indo Commercial Bank, AIR 1965 Mad 147; relying on Adityam v. Ramakrishna, ILR 38 Mad 514 : AIR 1915 Mad 868; Lala Singh v. Basdeo, AIR 1923 All 429. 96 Leelamma v. Narayanan, AIR 1992 Ker 115; relying on Md. Taki Khan v. Jang Singh, AIR (1935) 50 All 1(FB) ; Bai Hiradevi v. Official Assignee, AIR 1955 Bom 122; S. Rajamma v. S.M. Dhondusa, AIR 1970 Mys 270; Nabin Chandra v. Shuna Mala AIR 1932 Cal 25. 97 Munninarayan Reddi v. Chinnaswamy Gownder, (1953) Mys. 29. 98 Krishna Bai Ganpatrao Deshmukh (Smt. ) v. A.T. Nimbalkar, AIR 1979 SC 1880. 99 Sohansingh (Mrs. ) v. State Bank of India, AIR 1964 Punj 123(DB) . 1 Tyagaraja Mudaliyar v. Vedathanni, 63 IA 126, ILR 59 Mad 446 : AIR 1936 PC 70. 2 Cutts v. Brown, (1881) 6 Cal 328.

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3 Deep Chandra v. Rukhuddrulla Shamsher Jang Nawad Mohammed Sajjad Ali Khan, AIR 1951 All 93(FB) . 4 Rajendra Prasad v. Gaya Prasad Sah, AIR 1975 Pat 312; following in Nabin Chandra v. Devendra Mohan, AIR 1917 Cal 210; dissenting from Banwarilal v. Jagarnath Prasad, AIR 1916 Pat 406 (1); Moti Biswas v. Haripada Pal, AIR 1923 Cal 402. 5 K.M. Rajendran v. Arul Prakasam, AIR 1998 Mad 336 (para 15). 6 Abdullakin v. Maung Ne Dun, (1929) 7 Ran 292 : AIR 1929 Rang 240. 7 Jahuri Sah v. Dwarika Prasad Jhunjhunwala, AIR 1967 SC 109. 8 M.D. Gopalaiah v. Usha Priyadarshini, AIR 2002 Kant 73. See also S.T. Krishnappa v. Shivakumar, (2007) 10 SCC 761, 764 (para 10) : (2007) 6 JT 641.

18. APPLICABILITY TO DECREES Section 92 cannot refer to a decree which is imposed upon one of the parties by force. Then is no mutuality about a decree which is passed in accordance with the wishes of one party and contrary to the wishes of the other. Section 92, therefore, cannot bar the setting up of a pre-decretal oral contract. 9

9 Narain v. Basdeo, AIR 1950 All 437.

19. WILLS It was held that a registered will can be revoked by an unregistered will and Section 92(4) is no bar, as the will is neither a contract nor a grant nor a dispossession of property and it operates only after the death of the testator. 10 10 Md. Yunus v. Abdul Sattar, AIR 1938 Mad 616.

20. 'HAVE BEEN PROVED ACCORDING TO THE LAST SECTION' The provisions of the section come into force when the written instruments referred to in the section have been proved in accordance with the provisions of S. 91, that is, either by the production of the document itself, or by the production of the secondary evidence of it. Court can, on facts and circumstances of a case, consider whether two or more documents formed part of one and the same transaction and construe them accordingly. 11 11 Sidrapnappa Basappa v. Bipinchand Fulchand Gandhi, ILR (1978) Bom 344.

21. SURETYSHIP A loan transaction was contained in more than one document, a pronote by three including one B and deed of hypothecation, by two were executed in favour of a bank. It was held that both the documents are to be read together to satisfy the conditions of Section 126 of the Negotiative Instrument Act and that B was a surety and not a co-obligant as he was not setting up any oral agreement in derogation of the pronote and Section 92 did not apply. 12 It is open to the parties to a sale deed reciting the consideration as Rs. 1000/- to prove that the consideration was more than thousand relying on a prior agreement of sale in writing as what is precluded is only an oral agreement under Section 92.

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Evidence was sought to be adduced by answers to interrogatories which contained an admission. Such evidence was held to be not admissible in evidence in view of Section 92 as the same is at variance or in contradiction of the terms of the registered document. 13 This section is applicable only to cases as between parties to an instrument or their representativesininterest. Where, however, the dispute is between a stranger to an instrument and a party to it or his representative in interest, this section is inapplicable, and both the stranger and the party or his representative are at liberty to lead evidence of oral agreement notwithstanding the fact that such evidence, if believed, may contradict, vary, add to, or subtract from, its terms. 14 A stranger can show by oral evidence that the document is void or not valid. The section forbids the admission of evidence of an oral agreement for the purpose of contradicting, varying, adding to, or subtracting from, the terms of a written document as between the parties to such document or their representatives in interest. The rule of exclusion laid down in the section does not apply to the case of a third party who is not a party to the document. On the contrary, S. 99 distinctly provides that persons who are not parties to a document may give evidence tending to show a contemporaneous agreement varying the terms of the document 15 . Extraneous evidence to show that the parties to a sale-deed had no intention of conveying a particular item of property included in the deed is admissible where the person challenging the transfer is not a party to the deed. 16 Where the grantee took knowing that a third person was the owner of the property and the grantor was only a mortgagee, and that the intention of all parties was merely to transfer the mortgage, oral evidence of the third party's rights was admissible to prove the real nature of the transaction. 17 Section 92, Evidence Act, excludes the admission of any oral agreement or statement as between the parties to an instrument or their representatives-in-interest, the pre-emptor in a pre-emption suit is not such a party. Hence, the provisions of Section 92 have no application. 18 In a suit for declaration that certain properties were joint family properties of the plaintiff and their deceased father and their father had no right to dispose of the property by will, documents were executed by the father reciting that there was no property of the joint family; it was held evidence to contradict the recital in the documents was not precluded by Section 92 as the dispute in the suit did not arise between the parties to the documents but between persons who claimed under the executant of the document. 19 It is not open to the parties on the one side of the document, to prove as against each other that the document was a mortgage though it purports to be a sale. 20 Where a father executed a sale deed in favour of his daughter, the daughter contended that it was a gift in her favour but the father contended that it was a benami sale deed, it was held that oral evidence was admissible to prove that it was a gift, as the father and daughter could not be treated as parties contracting with each other. 21 Where an official assignee filed a suit for declaration that the gift deed executed by the insolvent in favour of his sons, as void, it was held that official assignee can lead oral evidence as he was not a party to the document nor a person representative in interest of the insolvent; the donees who are not contracting parties to the document can lead evidence to show it was a transaction for consideration as they are outside the scope of Section 92. The representative-in-interest of the insolvent can avoid the application of Section 92 and are entitled to lead oral evidence in support of the plea raised by them. 22 A subsequent purchaser from a party who was the vendor in a prior sale deed of the very same property will be a representative-in-interest of his said vendor within the meaning of Section 92, of the Evidence Act and he would be precluded from contending that the first sale deed was only a mortgage and not a sale deed. 23 The words "between the parties to any such instrument" occurring in Section 92 properly speaking, refer to the persons who come together to make the contract and do not apply to questions raised between the parties on one side only of a deed regarding their relations to the other under the contract to show that one of them is only nominally added as purchaser and the other is the real purchaser entitled solely to the property. 24 The section is limited to a party to a document. It, therefore, cannot be invoked by a person who is not party to a declaration made under Cl. 2 of Proviso of Goa, Daman and Diu (citizenship) Order, 1962 for preventing the maker thereof from producing evidence to vary its terms, though the declaration is a matter required by law to be reduced to writing in the form of a document. 25

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Section 92 does not bar a party to a sale deed as against a third party to the document from letting in oral evidence to show that the real consideration was different from what was shown in the sale deed. 26 Plaintiff sued to recover one-fourth of the price of a house alleged to have been sold by the first defendant to the second defendant, the claim being based upon a local custom. The transaction between the defendants was ostensibly not a sale but a usufructuary mortgage. It was held that the plaintiff, not being a party to the transaction, was entitled to give evidence to show that what purported to be a usufructuary mortgage was not in reality such, but was in fact a sale. 27 Where both grantor and grantee are dealing with the property of an owner who is a third person and not, in the language of Section 92, either party to the instrument or a representative-in-interest of a party to the instrument, there is no bar under Section 92 as to the admissibility of the evidence which is sought to be led in regard to the real nature of the transaction between the original parties. 28 The sub-section is not attracted when the case of a party is that the transaction recorded in the document was never intended to be act ed upon at all between the parties and that the document is a sham. Such a question arises when the party asserts that there was a different transaction altogether and what is recorded in the document was intended to be of no consequence whatever. For that purpose oral evidence is admissible to show that the document executed was never intended to operate as an agreement but that some other agreement altogether, not recorded in the document, was entered into between the parties. 29 12 S.Chattanatha Karayalar v. Central Bank of India, AIR 1965 SC 1856 : (1965) 3 SCR 318. 13 State Bank of India v. Mrs. J.K. Sohan Singh, AIR 1963 Punj 27. 14 Bai Hira Devi v. The Official Assignee of Bombay, AIR 1958 SC 448 : 1958 SCR 1384, 60 Bom LR 932; Rangubai v. Govind Laxman, ILR 1949 Nag 70 : AIR 1949 Nag 243. 15 Bageshri Dayal v. Pancho, (1906) 28 All 473. 16 Ram Sundar Mal v. Collector of Gorakhpur, AIR 1930 All 797 : ILR (1930) 52 All 793. 17 Maung Kyin v. Ma Shwe La, AIR 1917 PC 207 : (1917) 44 IA 286 : 20 Bom LR 278 : ILR 45 Cal 320. 18 Jana Bibi Mst. v. Qadir Beg; followed in AIR 1960 J&K 28 (DB); Bhullen Singh v. Kushi Ram, AIR 1924 All 229(2); Hiraji v. Vishnu, AIR 1923 Bom 429; Sheikh Usman v. Md. Shafi Khan, AIR 1927 All 204; Marimal v. Sharifan, 1949 Cal 194. 19 R. Viswanathan v. Rukn-ul-Mulk Syed Abdul Wajid, AIR 1963 SC 1 : (1963) 3 SCR 2. 20 Muthu Kumaraswami v. Govinda, AIR 1932 Mad 218; Ma Aye v. Daw, AIR 1941 Rang 99; see contra Lakshmana Sahu v. Simachala Patra, AIR 1941 Pat 211; Khudawand v. Narendra, ILR 58 All 548; Md. Sultan v. Ambhul Jalal, AIR 1927 Mad 1102. 21 Pathammal v. Kalai, ILR 27 Mad 329. 22 Bai Hiradevi v. Official Assignee of Bombay, AIR 1958 SC 448; reversing Bai Hiradevi v. Official Assignee., AIR 1955 Bom 122(DB) ; see also Haramani v. Bauri, AIR 1970 Ori. 203. 23 Nabakumar Singh v. Haridas Singh, AIR 1960 Manipur 11. 24 Urban Co-op. Bank Ltd. v. Mst. Gokal Devi, (1963) 13 Raj 377 relying on Mulchand v. Madho Ram, (1888) 10 All 421; Pathammal v. Syed Kalai Ravuthar, (1903) 27 Mad 329, dissenting in Ma Aye Tin v. Daw Thant, AIR 1941 Rang 99; which dissented in Chatar Singh v. Ganpatlal, AIR 1951 Ajmer 79. 25 G.Y. Bhandare v. Erasmo de Sequetra, AIR 1972 Goa 25. 26 Dhoddiah Chettiar v. M.E. Tea Factory, (1974) 1 Mad LJ relying on Bai Hira Devi v. Official Assignee of Bombay, AIR 1958 SC 448; Parattakath Mayan v. Mammad Kunhi, AIR 1949 Mad 852; Distinguished Motilal Singh v. Mt. Fulia, AIR 1958 Pat 61. 27 Bageshri Dayal v. Pancho, (1906) 28 All 473; Rahiman v. Elahi Baksh, (1900) 28 Cal 70, dissented from Ganu v. Bhau, (1918) 20 Bom LR 684, ILR 42 Bom 512; Kumara v. Srinivasa, (1887) 11 Mad 213, 215. 28 Narsingdas Takhatmal v. Radha Kisan, AIR 1952 Bom 425.

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29 Gangabai Smt. v. Chhabubai Smt., AIR 1982 SC 20 : (1982) 1 SCC 4, relied in Mahmooda Begum v. Badrunisa Begum, 1999 AIHC 2126 (para 20) (AP) and Bhargavi Amma v. Parukutty Amma, 1999 AIHC 4553 (para 6) (Ker), relying on Tyagaraja Mudaliyar v. Vedathanni, AIR 1936 PC 70. See also Parvinder Singh v. Renu Gautam, (2004) 4 SCC 794, 799 (para 9) : AIR 2004 SC 2299.

22. ANY FACT WHICH WOULD INVALIDATE ANY DOCUMENT [PROVISO (1)] This proviso applies to cases where evidence is admitted to show that a contract is void, or voidable, or subject to reformation, upon the ground of fraud, duress, illegality, etc., in its inception 30 . See illustrations (d) and (e). The instances given in the proviso are not exhaustive. They are set out by way of illustration only. If the validity of a written agreement is impeached, it is no defence to point to the apparent rectitude of the document and to claim protection from inquiry under a rule which exists against the contradiction and variance of the terms only of those instruments the validity of which is not in question. In such cases, the Court is not bound by what has been described as the mere paper expressions of the parties and is not precluded from inquiring into the real nature of the transaction between them. The proviso declares that any fact may be proved which invalidates any document. 31 In T AYLOR ' S E VIDENCE (10th Ed., Section 1135, P. 814) it is stated "The rule contained in the section is not infringed by the admission of parol evidence, showing that the instrument is altogether void, or never had any legal existence of binding force, either by reason of forgery or fraud or of illegality of the subject-matter, or for want of due execution and delivery......", "Parol evidence may be given to show that the contract in writing was really made for objects forbidden by law, that such writings were obtained by improper means as duress, that the party was incapable of contradicting by reason of some legal impediment, such as infancy, coverture, idiocy, insanity, or intoxication; or that the instrument came into the hands of plaintiff without any absolute final delivery by the obligor or party charged." (at page 816). P HIPSON ON E VIDENCE (15th Ed. (2000), para 42-33, page 1182) states "Extrinsic evidence is admissible to prove any matter which by substantive law affects the validity of a document, or entitles a party to any relief in respect thereof, notwithstanding that such evidence tends to vary, add to, or, in some cases contradict the writing, e.g. defective or conditional execution, contractual incapacity, fraud, forgery, duress, undue influence, illegality of subject-matter, mistake, or want or failure of consideration". Receipt of notice under Section 80,C.P.C. was acknowledged by defendant. If the defendant wants to prove that it was defective it is for the dependent to produce the notice and show that it does not fulfil the requirements of law. The contents of the notice cannot be proved by oral evidence in view ofSection 92. 32 Oral evidence to invalidate a document is admissible to show that document was never intended to operate according to its terms. 33 The bar with Section 92 will apply to a proceeding inter partes to a document and not to a criminal proceeding, where the prosecution is trying to prove that a particular document or set or documents are fictitious documents created to offer an explanation for disproportionate wealth. Oral evidence can always be led to show that a transaction under a particular document or set of documents is sham or fictitious or nominal, not intended to be acted upon. 34 Where in respect of a deed of exchange, one of the executants took the stand that, what was intended to be exchanged was only the business and not the RCC building which was supported by the oral evidence, the High Court held that the finding that the said building included in the deed on the basis of the recital in the deed alone, was held to be unsustainable. 35 In Venkata Rama Rao v. Appa Rao 36 it was held that if the question which has to be decided, is the intention of the parties, evidence must be admissible. If that evidence shows that the document did not relate to the land within the jurisdiction of the Sub-Registrar who registered it, such evidence tends to render the document invalid, as it amounts to fraud on registration law and so such evidence is admissible u/proviso 1 of Section 92. 37

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Evidence to show that a person who signed as a partner is not a partner and he signed on behalf of another who was the only partner is not admissible. Proviso 1 and 6 are not applicable were the language of the document (partnership deed) are clear. 38 The illustration in this proviso 1 is not exhaustive by the use of the words "such as".

39

Oral evidence of the witnesses in the proceedings of the Board in a Court Martial case are admissible in evidence. 40 30 P ER G ARTH , C.J., in Cutts v. Brown, (1880) 6 Cal 328, 338. 31 Beni Madhab Dass v. Sadasook Kotary, (1905) 32 Cal 437(FB) ; Ma Thin Myaing v. Maung Gayi, (1923) 1 Rang 351. 32 Mast Ram v. Deputy Commissioner Bahraich, AIR 1968 All 321. 33 Baikali Dibya v. Hari Chakravarty, ILR (1966) Cut 236. 34 R. Janakiraman v. State of Tamil Nadu, AIR 2006 SC 1106, 1113 (para 11.6) : (2006) 1 SCC 697. 35 Krishna Prasad v. Shyam Narayan Prasad, AIR 2006 Sik 25, 35-36 (para 34). 36 AIR 1936 PC 91. 37 See also Gopinath v. Rup Ram, AIR 1930 All 786. 38 Shankar Bandu v. Sankar Babaji, AIR 1956 Bom 165. 39 Pandurang v. Viswanath, AIR 1939 Nag 20; Benimadhab v. Sadasook Kotary, ILR 32 Cal 437(FB) . 40 General Court Martial v. Anitej Singh Dhaliwal, AIR 1998 SC 983 : 1998 Cr LJ 1402.

23. FRAUD AND MISREPRESENTATION It has been observed that it would constitute fraud only where either there has been a promise made without any intention of performing it or where there has been an act ive concealment of fact by one having knowledge or belief of the fact. 41 Under Proviso (1) to Section 92 only a fact which would invalidate a document such as fraud can be proved which clearly means the fraud as committed in the execution of the document or that a document which was not intended to be executed was executed fraudulently in favour of the defendants. 42 The parole evidence rule is well entrenched in Section 92 of the Act which has always been subject to a proviso that it does not exclude adducing of any evidence which may prove fraud, illegality, want of due execution and want of capacity etc. It is well settled that fraud transcends all presumptions. 43 In cases of fraud the important thing that has got to be proved is the intention to defraud. It would constitute fraud only where either there has been a promise made without any intention of performing it or where there has been an act ive concealment of fact by one having knowledge or belief of the fact. 44 Where one party induces the other to contract on the faith of representations made to him any one of which is untrue, the whole contract is in a Court of Equity considered as having been obtained fraudulently. 45 Where there was gross inadequacy of consideration, unconscionable nature of the transaction, factum of transfer of possession for atleast 4 to 5 years and mutation had taken place after 10 years 9 months of the sale without notice to the appellant and proclamation coupled with the oral statement of the witnesses, had clearly proved that there had been fraud, and the sale deed was held to be void due to fraud. 46 In order to plead fraud effectively the particulars of fraud must be given by the party, and in the absence of such particulars, there cannot be any proper averment of fraud. The fraud which is alleged must be such as enters into the transaction itself and enables the party to avoid the transaction. It must be fraud within the meaning of the term as used in Sections 17(3) of the Indian Contract Act ,

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and unless and until the allegations amount to that, there cannot be any valid plea of fraud which can be taken up by a party.47 The section does not prevent proof of a fraudulent dealing with a third person's property or proof of notice that the property purporting to be absolutely conveyed in fact belonged to a third person who was not a party to the conveyance. 48 Where one party to a contract does not agree to any of its stipulations and the other party induces him, not indeed to agree to it, but to agree to its formal insertion in the written contract, by representing that the stipulation in question would be in reality treated by him as a dead letter, it cannot be enforced because the party induced had never assented to it and its inclusion in the written contract was the result of misrepresentation 49 . Where, at the time of executing a document, a representation is made that the document though in form a sale-deed will not be enforced as against the executant as a sale-deed, and where on the faith of that representation the executant executes the document, the sale-deed cannot be upheld as a sale-deed as against him. 50 The fraud which is contemplated by Proviso 1 of Section 92 is at the very inception a fraud which vitiates the transaction itself, and not any subsequent conduct or representation of the party or his representative-in-interest, which, however reprehensible it may be, is not enough to vitiate the transaction. Evidence of such conduct or representation cannot be led under the proviso. It must be fraud within the meaning Section 17(3) of the contract Act . 51 When fraudulent mis-representation was pleaded, oral evidence is admissible to prove it. 52 In a case relating to an agreement to sell the seller pleaded that the agreed consideration was more than the stated one in the agreement. He admitted all the other terms in the agreement and did not allege any misrepresentation or fraud. He led no evidence except his oral testimony as to the value of the property. The valuation of the property given by the seller himself in a loan application belied his case. It was held that he had failed to prove that the agreed consideration was higher. 53 Extraneous evidence apart from the compromise petition was admissible for the purpose of proving fraud. In most of the cases of fraud it can be established only by introducing extraneous conditions and circumstances. 54 41 Yeshwant Deo Rao v. Walchand Ramchand, AIR 1951 SC 16; Dagadu Valad v. Nana, ILR 53 Bom 93. 42 Thatha Rao v. Jummarlal, AIR 1953 Hyd 179(DB) ; relying on Yeshwant Deo Rao v. Walchand Ramchand, AIR 1951 SC 16; Dagadu Valad v. Nana, ILR 53 Bom 93. 43 Harmesh Kumar v. Maya Bai, AIR 2006 P&H 1, 8 (para 23) : 2006 AIHC 347(P&H) . See also Shiva Nath Prasad v. State of W. B., (2006) 2 SCC 757 : AIR 2006 SC 1181. 44 Thatha Rao v. Jummarlal, ILR (1952) Hyd 373. 45 Abaji v. Laxman, (1906) 30 Bom 426 : 8 Bom LR 553. 46 Balram Kirar v. Ram Krishna, AIR 2002 MP 139, 144. 47 Narsingdas Takhatmal v. Radhakisan, (1951) 54 Bom LR 492. 48 Maung Kyin v. Ma Shwe La, (1911) 13 Bom LR 797, ILR 38 Cal 892. 28 IA 146. 49 Sangira v. Ramappa, (1909) 11 Bom LR 1130, ILR 34 Bom 59. 50 Navalbhai v. Sivubai, (1906) 8 Bom LR 761. 51 Narsingadas v. Radhakisan, AIR 1952 Bom 425(DB) ; relying on Dagdu v. Nana, AIR 12 Bom LR 972. See also Chewag Dorjee Lama v. Lerap Dorjee Bhutia, AIR 2006 Sik 37, 47-48 (para 45). 52 Balaramireddigari v. Thippa Reddi, AIR 1949 Mad 301; Suryanarayana v. Alwandarao, AIR 1946 Mad 111. 53 K.M. Rajendran v. Arul Prakasam, AIR 1998 Mad 336 (paras 13 and 16). 54 Niranjan Samal v. Tirilochan Kuar, AIR 1956 Orissa 81(DB) .

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24. ILLEGALITY Oral evidence is admissible to prove that the real object or consideration of an agreement in writing is unlawful and that therefore the agreement is void. 55 ( Sections 23 of the Indian Contract Act ). 55 Kashi Nath Chukerbati v. Brindabun Chukerbati, (1884) 10 Cal 649; Anupchand Hemchand v. Champsi Ugerchand, (1888) 12 Bom 585.

25. WANT OF DUE EXECUTION The term 'execution' means the last act or series of acts which completes a document. It is formal completion of a document. Thus, execution of deeds is the signing, sealing and delivery of them in the presence of witnesses. Execution of a will includes attestation 56 . Writing, stamp, registration, attestation are all formalities necessitated by statutes. 56 Bhawanji Harbhum v. Devji Punja, (1894) 19 Bom 635, 638.

26. WANT OR FAILURE OF CONSIDERATION Want of consideration, or failure of consideration, or difference in the kind of consideration may be proved. But parol evidence to vary the consideration is not admissible. 57 The want or failure of consideration contemplated by the proviso is a complete want or failure of consideration. 58 It was held that it is open to a party to what was nominally a sale deed for consideration to show that no consideration did pass, and that what was a nominal sale was a real gift. 59 Though the sale deed may recite that the consideration has been paid, this is nothing to prevent the parties from adducing evidence to show that the recital is untrue and in fact the consideration was not paid. 60 Statement of a fact in a written document is not a term of the contract and hence would not come within the purview of Section 92 and oral evidence may be given to prove that the amount mentioned in the document to have been paid, has not been paid. 61 If this was not so, facilities would be afforded for the grossest frauds. It is no infringement of this section for a Court to accept proof that by a collateral arrangement between the vendor and the purchaser, the consideration money remained with the purchaser under the conditions agreed upon between them 62 . The section does not say that no statement of fact in a written instrument may be contradicted by oral evidence, but that the terms of the contract may not be varied 63 . Where a part of the sale consideration is on the face of the document still outstanding and to be paid by the vendee, it is not open to him to produce evidence to show that there was a separate contemporaneous oral agreement that this sum would not be payable and was merely fictitious 64 . The amount of sale consideration is a term of a deed of sale and no evidence of any oral agreement can be given for the purpose of varying the amount. An agreement made without consideration is void except in the three cases specified in Sections 25 of the Indian Contract Act . When it is brought to the notice of a Court that the consideration for a contract which it is asked to enforce is, in whole or in part, an unlawful consideration, such Court is bound to give effect to the fact thus brought to its notice, notwithstanding that the contract may appear upon the face of it to be a perfectly legal contract, and that the unlawfulness of the consideration was never pleaded by the defendant. 65 Where in a suit for possession the plaintiff based his title on a registered sale deed executed in his favour and the defendant based his title on subsequent sale deed in his favour alleging that the previous sale deed in favour of the plaintiff was without consideration and that the same was subsequently cancelled by the vendor, it was held that the onus was on the defendant to prove the absence of consideration for the sale in favour of plaintiff, the defendant having admitted the execution of the sale deed. 66 It was held that proviso (1) to Section 92 did not apply to the case as no question of want or failure of consideration of the deed of sale arose. 67 Evidence of failure of consideration can always be adduced under proviso 1 of Section 92 passing of consideration in a document is not a term

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of the contract. 68 If it appears on the face of the document that the consideration is no more than nominal, evidence can be given to show the real circumstance and the true consideration. 69 Where a renewed pronote was executed for the amount due under a prior pronote, the defendant was allowed to prove that he paid some amount under the prior pronote and thereby to that extent his liability under the renewed pronote should be proportionally reduced. 70 The Karnataka High Court held that it is permissible to prove either that no consideration as set out in the document had been received or that a portion thereof above had been received. 71 Evidence to show that non-receipt of consideration is admissible. 72 In the case of Shahjog Hundi under Section 118(a) of Negotiable Instrument Act, the defendant was held entitled to prove want or illegality of consideration. 73 Where in the documents executed in connection with the contract for sale there was a recital with regard to the payment of earnest money by the plaintiff to the executant, it is open to the defendants successors-ininterest of the executant, in a suit for specific performance, to show that the payment of earnest money was never made. In order to explain how and why that amount was not paid it is open to plead a collateral oral agreement to the effect that the amount was to be paid by the plaintiff not in cash to the executant but to the mortgagee of the property and in fact no such payment was ever made by the plaintiff either to the executant or to the mortgagee. 74 Though the sale deed recited that the consideration was paid, there is nothing to prevent the parties from adducing evidence to show that the recital is untrue and that in fact the consideration was not paid, and such evidence is not barred by Section 92 of the Evidence Act. 75 In a pre-emption suit intention of the parties can be gathered from the evidence led by the parties as well as their conduct in terms of Section 92 of the Evidence Act, the vendor is not prevented from adducing evidence to show that recitals in the said deed to the effect that consideration has been paid is incorrect and in fact no consideration was paid to him. 76 Evidence may be admitted to prove that there was mutual mistake in the working of an agreement and to prove what the real intention of the parties was, and such evidence as to the alleged mistake may be given not only in a suit for the rectification of the mistake brought under Sections 31 of the Specific Relief Act, but also in a suit based upon the agreement itself. 77 The combined effect of this proviso and Sections 31 of the Specific Relief Act is to entitle either party to a contract, whether plaintiff or defendant, to protect his right by proving a mistake in a written contracti.e., a mistake in the description of the property sold by given a wrong survey number to the same. Mistake in the belief of a party to a document may be pointed out under this proviso. 78 Under the terms of the proviso (1) of the Section 92, it will not be competent for the party to a contract to prove the variation of the consideration recited in the consideration. 79 57 Motilal Singh v. Mt. Fulia, AIR 1958 Pat 61; K.S. Narasimha v. Indo Commercial Bank, AIR 1965 Mad 147. 58 Keshavrao v. Raya, (1906) 8 Bom LR 287. 59 Hanif-un-nisa v. Faiz-un-nisa, ILR 33 All 340(PC) ; relying on the decision in Balkishnen Dass v. Legge, ILR 22 All 149(PC) ; see also Chunni Bibi v. Basanta Bibi, ILR 36 All 537. 60 Panchoo Sahu v. Janki Mandar, AIR 1952 Pat 263(DB) ; relying on Md. Mumtaz Hussain v. Abdul Rahman, AIR 1949 Pat 364; and Radhamohan Thakur v. Bipin Behari Mitra, AIR 1938 Pat 505; Irpan Ali Laskar v. Jogendra Chandra Das, AIR 1932 Cal 708; Md. Taki Khan v. Jang Singh, AIR 1935 All 529; Baloramireddigari v. Thippa Reddi, AIR 1949 Mad 301; Bhawanbhai v. Vahali, AIR 1955 Bom 320; Ramaswami Chettiar v. Lodd Govindass, AIR 1926 Mad 35; Munna Singh v. Narain Singh, AIR 1929 Nag 91; Baldeo Singh v. Dwarika Singh, AIR 1978 Pat 97; on the consideration was agreed to be paid in a different manner, Indrajit v. Lalchand, (1895) 18 All 168. 61 B.N. Venkataswamy v. P.S. Rukminiamma, AIR 1999 AIHC 1979 (paras 9 and 10) (Kant). 62 Irfanali Laskar v. Jogendrachandra Das Patni, (1932) 59 Cal 1111. 63 Shah Lal Chand v. Indrajit, (1900) 2 Bom LR 553 : 27 IA 93 : ILR 22 All 370; Lala Dholan Das v. Ralya Shah, (1899) PR No. 85 of 1898 (Civil); Mussammat Zohra Jan v. Mussammat Rajan Bibi, (1915) PR No. 48 of 1915 (Civil). 64 Muhammad Taqi Khan v. Jang Singh, (1935) 58 All 1, FB. 65 Alice Mary Hill v. William Clarke, (1904) 27 All 266.

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66 Michhu Kumar v. Raghu Jene, AIR 1961 Orissa 19; relying on Bhagwan Singh v. Bishambar Nath, AIR 1940 PC 114. 67 Nokhelal v. Kisanlal, AIR 1950 Nag 44. 68 Mutyalu v. Veerayya, AIR 1946 Mad 452; Mahalakshmi Amma v. Krishna Holla, AIR 1938 Mad 320; Mohafazul Rahim v. Babulal, AIR 1949 Nag 113; Nagendra Nandni Dasi v. Bholanath, 41 Cal WN 734; Pandurang v. Vishwanath, AIR 1939 Nag 20. 69 Turner v. Forwood, (1951) 1 All ER 746; Clifford v. Turrel, 14 L.J. Ch 390; followed in Kasturi Bai v. Ramlal, 66 Cal WN 8. 70 Balasubrahmania v. Venkatarama, 67 MLJ 650. 71 Karidasmma v. Patel Sangappa, (1980) 2 Kant LJ 409; S. Ranjanna v. S.M. Dhondusa, (1970) 1 Mys LJ 489. 72 Hiralal Seal v. Sankarlal Sharma, (1969) 2 Cal 503. 73 Kundal Mal v. Ratanlal, AIR 1950 Ajmer 54. 74 Md. Sulaiman Mian v. Israil, 1964 BLJR following; Motilal Sahu v. Ugrah Narain Sahu, AIR 1950 Pat 288; Panchoo Sahu v. Janki Mandar, AIR 1952 Pat 263; Dhanasajagirji v. Parthasaradhi, AIR 1924 PC 226. 75 Baldeo Singh v. Dwarika Singh, AIR 1978 Pat 97. 76 Savitri Devi v. State of Bihar, AIR 1989 Pat 327. 77 S. Narayanswamy v. James D. Rodrigues, (1906) 3 LBR 227; Janardan v. Venkatesh, (1938) 41 Bom LR 191, ILR (1939) Bom 149 : AIR 1939 Bom 149. 78 Tani Mahesha v. Secretary of State for India in Council, (1894) PR No. 67 of 1894 (Civil). 79 K.M. Rajendran v. Arul Prakasam, AIR 1998 Mad 336 (para 20).

27. MISTAKE OF FACT A mutual mistake relating to the survey number in the document, can be corrected by allowing evidence. 80 Where by a written contract A sold goods to B to arrive 'Ex Peerless, from Bombay' and there proved to be two ships of that name each party intending a different one, extrinsic evidence was allowed to show that the parties were not really ad idem . 81 A party who has entered into a wrong contract and thereby represented to the other parties to the document that he intends to be bound by the terms thereof is not entitled to give evidence that in fact he intended something else. If that were so, there would be no finality in written contracts. 82 The Court can act on the intrinsic evidence on the face of the document itself that there was a mutual mistake. The parties can also prove about their concurrent intention at the time of execution of the document and that it failed to give effect to their concurrent intention. 83 The mistakes contemplated in this section are genuine and accidental mistakes just as misdescription of property. Evidence can be allowed to know whether a particular land was conveyed under the document. 84 Though oral evidence can be admitted for correcting, a typing error which have crept in while expressing the contract between the parties, if it would amount to changing the entire contract, in interpreting the word parol evidence cannot be given. In the instant case it was found that for the word "sock" the word "rock" was typed, it was a typographical mistake and held that it can be corrected. 85 It is open to the Court to allow oral evidence of mutual mistake of fact to vary the terms of a deed. Oral evidence will be admissible even if the mistake is due to innocent misrepresentation. 86 A mistake induced by innocent misrepresentation by the opposite party comes within the proviso. Where a document written in a language which a person could not read was signed by him on an assurance by the opposite party that it contained all the terms agreed upon but in fact it contained only some of the

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terms. It was held that oral evidence was admissible to prove the terms agreed upon and not contained in the memorandum. 87 Where a promissory note stated that the interest was payable at the rate of rupees two per mensem and in a suit on the promissory note the plaintiff contended that the interest agreed upon was two per cent, per mensem and that the words "per cent" had been omitted by mistake, it was held that oral evidence was admissible to prove that the rate of interest agreed upon was two per cent, per month. 88 The proviso is not limited in its application to a suit for rectification of instrument. A defendant may plead and prove any mistake in the expression of the contract notwithstanding that he had not filed a suit for rectification and can resist a suit on the ground that what was sold to him was different from what the document described. Oral evidence is thus admissible to prove the same. 89 Where it is established that there was a mistake as to the description of the property in the sale deed, a third person, who being aware of such mistakes and intending to take advantage of it, subsequently purchases that property from the original vendor, cannot plead that he acquires his right in good faith in answer to a claim made by the first purchaser. 90 Similarly, the mutual mistake regarding Khasra number in a sale deed can be allowed to vary by leading oral evidence. 91 Where there was intrinsic evidence to prove that the vendor intended to convey right, title and interest with respect to suit property in favour of the plaintiff, the mistake in plot number must to be treated as a mere misdescription which did not affect the identity of the property sold. 92 A person who seeks to rectify a deed upon the ground of mistake must be required to establish, in the clearest and most satisfactory manner, that the alleged intention to which he desires it to be made conformable, continued concurrently in the minds of all the parties down to the time of its execution, and also must be able to show exactly and precisely the form to which the deed ought to be brought 93 . The mistake referred to in proviso (1) refers to both unilateral as well as a mutual mistake. 94 However a different view was expressed in the under mentioned cases. The mistake which can be proved by oral evidence under this proviso must be one which would found a claim for rectification of cancellation of the instrument. Since unilateral mistake is not a grant, for rectification or cancellation evidence of such a mistake does not come within the proviso. 95 Oral evidence is admissible to fill a blank which has been left in the document by fraud or mistake. 96 Oral evidence is admissible to prove that the name of A in a document is mistaken for the name of B.

97

Under the Indian Contract Act an agreement is not voidable because it was caused by a mistake as to any law in force in India, but a mistake as to law not in force in India has the same effect as a mistake of fact (s. 21). But Courts do relieve against mistakes in law as well as mistakes in fact, in cases where there is some circumstance which makes it inequitable that the party who has received the money of other party should retain it. 80 Baluswami Aiyar v. Lakshmana, AIR 1921 Mad 172(FB) ; Mahadeva v. Gopala, ILR 34 Mad 51; Abdul Hakim v. Ram Gopal, 44 All 246 : AIR 1922 All 42; Kurpal v. Shamrao, 47 Bom 589; Sabhaji v. Nawal Singh, AIR 1928 Nag 4. 81 Raffles v. Wichelhaus, (1864) 2 H&C 906; Preston v. Luck, 27 Ch D 497. 82 Kamalamma v. Kenche Gowda, AIR 1972 Mys 184; Santi Ranjan Das v. Dasuram Mirzamal Firm, 1957 Assam 49(DB) ; Shiddappa v. Rudrappa, AIR 1954 Bom 463(DB) ; see also Janardan v. Venkatesh, AIR 1939 Bom 149; Siddappa v. Rudrappa, AIR 1954 Bom 463; Sayamma v. Venkata, AIR 1931 Mad 785. 83 Nooruddin v. Md. Umar, AIR 1940 Bom 321; following Shipley U.D.C. v. Bradford Corp., (1936) 1 Ch 375; Fitzgerald v. F., 1 I. R. 477. 84 Rikhiram Pyarelal v. Ghasiram, AIR 1978 MP 189; Haji Khan v. Chotthu Ram, AIR 1936 Pesh 41; Arya v. Daundi, AIR 1940 Lah 236; Mohendra v. Jogendra, (1897) 2 Cal WN 260. 85 Gujarat Electricity Board v. S.A. Jais & Co., AIR 1972 Guj 192. 86 Chimanram v. Divanchand, (1931) 34 Bom LR 26 : ILR 56 Bom 180 : AIR 1932 Bom 151. 87 Chimanram V. Divanchand v. Diwanchand, ILR 56 Bom 108 : AIR 1932 Bom 151. 88 Kamla Prasad Pandey v. Hasan Ali Khan, ILR (1939) All 329 : AIR 1939 All 308.

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89 Rajaram v. Manik, AIR 1952 Nag 90 relying on Mohendra Nath Mukherjee v. Jogendra Nath Roy Choudary, (1897) 2 CWN; Rajaram v. Manik, AIR 1952 Nag 90; Balaprasad v. Asamabi, AIR 1954 Nag 328(DB) ; Santi Ranjandas Gutpa v. Dasuram Mirzamal Firm, AIR 1957 Assam 49; Rangaswami v. Sowri, ILR 39 Mad 792 : AIR 1916 Mad 519; Minalal v. Kharsetiji, ILR 30 Bom 395; Sooramma v. Venkayya, AIR 1938 Mad 589. 90 Rikhiram Pyaraelal v. Ghasiram, AIR 1978 MP 189. 91 Tulsiram v. Durgaprasad, 2002 AIHC 317, 319 (para 10) (MP) relying on Rajaram v. Manik, AIR 1952 Nag 90; Bala Prasad v. Asmabai, AIR 1954 Nag and Rikhiram Pyareylal v. Ghasiram, AIR 1978 MP 189. 92 Ram Jiwan Rai v. Deoki Nandan Rai, AIR 2005 Pat 23, 26 (para 13), following Sheodhyan Singh v. Sanichara Kuer, AIR 1963 SC 1879. 93 Rajaram v. Manik, (1951) Nag 948 : AIR 1952 Nag 90. 94 Sateri Shiddappa v. Rudrappa Shettepa, AIR 1954 Bom 463 : (1953) 56 Bom LR 394. 95 Sayamma v. Venkata, ILR 54 Mad 793 : AIR 1931 Mad 785; Janardhan v. Venkatesh, AIR 1939 Bom 149. 96 Maung Re Gye v. Hakim Ally, ILR 2 Rang 113 : AIR 1924 Rang 345. 97 Ajaiz Hussain v. Ram Sarup, AIR 1931 Oudh 54.

28. PRINCIPLE, SCOPE OF PROVISO (2)--ORAL AGREEMENT CONSISTENT TO TERMS OF DOCUMENT This proviso 2 has to be read with illus. (f ), (g ) & (h ). In T AYLOR ' S Evidence (10th Ed., Section 1049, P. 929). It is stated "The rule as to the inadmissibility of parol evidence to vary the terms of a document is not infringed by proof of any collateral parol agreement, which does not interfere with the terms of the written contract, though it may relate to the same subject- matter......The rule as to the exclusion of parol evidence to vary written instrument does not prevent parties to a written contract from proving that, either contemporaneously or as a preliminary measure, they entered into a distinct oral agreement on some collateral matter". Under this proviso evidence of any collateral parol agreement which does not interfere with the terms of the contract may be given. See ills. (f ), (g ) and (h ). Parties can prove that, either contemporaneously or as a preliminary measure, they entered into a distinct oral agreement on some collateral matter. The only case in which oral evidence will be admitted under this proviso is where the instrument is silent on the matter sought to be proved and the agreement to be proved is consistent with the terms of the document. It is allowable to urge an oral agreement which will have the effect of leaving matters otherwise than if they had depended on the written agreement alone, but such oral agreement must be clearly proved and the onus lies on him who sets it up. 1 Proviso (2) to Section 92 authorises the Court to admit and go into oral or other evidence for the purpose of explaining the real intention of the parties to the documents. 2 Where the plaintiff agreed on an oral agreement to advance a certain amount to one H on some specified dates and H along with another defendant had to execute a pronote, and accordingly he advanced money and H and another defendant executed the pronote acknowledging the debt, it was held that evidence of such an agreement was admissible under proviso (2) of Section 92, being a separate agreement on a matter on which the pronote was silent and not inconsistent with its terms. 3 Where the document does not record all the terms of the contract between the parties, oral evidence is admissible to explain the real nature of the transaction. 4 An incomplete agreement was entered into in terms of a Court decree, external evidence was allowed to supply its missing links. 5 If there is a rule of law which requires the transaction to be in writing, any separate agreement must also be in writing.

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The amount of the price agreed to be paid is an essential term of a contract of sale; and consequently no evidence of an oral agreement at variance with the provisions of a registered sale-deed as to the amount of the price fixed for the sale is admissible 6 . Evidence that a sale-deed was not intended by the parties thereto to be operative for the purpose of passing title is inadmissible 7 . This section does not bar oral evidence to transactions which were intended to be something else. 8 The two vendees in a transaction can vary the contents as between themselves. 9 Where parties enter into a sale-deed, it is not competent to them to prove a contemporaneous oral agreement to reconvey the property sold on payment of the sum advanced, in the absence of fraud, misrepresentation, or failure of consideration, etc. , rendering the sale invalid. 10 1 Motabhoy Mulla Essabhoy v. Mujli Haridas, AIR 1915 PC 2 : (1915) 42 IA 103, 17 Bom LR 460, 39 Bom 399; Badal Ram v. Jhulai, (1921) 44 All 53 : AIR 1922 All 165. 2 B.B. Lohar v. Prem Prakash Goyal, AIR 1999 Sik 11 (para 9). 3 Motabhoy Mulla Cssabhoy v. Mulji Haridas, ILR 39 Bom 399 : AIR 1955 PC 2. 4 Sir Mohammad Akbar Khan v. Attar Singh, AIR 1936 PC 171 : (1936) 38 Bom LR 739 : 17 Lah 557, 63 IA 279. 5 Leena Roy v. Indumati, AIR 1980 Pat 120. 6 Adityam Iyer v. Rama Krishna Iyer, AIR 1915 Mad 868 : (1913) 38 Mad 514. 7 Lachman Das v. Ram Prasad, (1927) 49 All 680 : AIR 1927 All 422. 8 Habeeb Khan v. Yalasula Devi, AIR 1997 AP 53. 9 Mohan Lal v. Board of Rev., AIR 1982 All 273. 10 Sangira Malappa v. Ramappa, (1909) 11 Bom LR 1130 : ILR 34 Bom 59.

29. ON WHICH THE DOCUMENT IS SILENT Sections 91 and 92 do not bar giving evidence of a separate oral agreement when parties enter into a written agreement on one matter and a separate oral agreement on another matter. 11 Oral evidence is permitted by the proviso-2 as to "any matter" on which the document is silent. Any separate oral agreement as to such matter should not be inconsistent with "the terms" of the document. Hence, if consideration is to be regarded as one of terms of the transaction, no oral evidence under the proviso-2 can be permitted of a matter which would be to any extent inconsistent with the said terms of the document. If document act ually states or sets out the consideration for the contract or for the transaction, it is not permissible by oral evidence to contradict, vary add to or subtract from the same. It is of course permissible to prove either no consideration as set out in the document had been received or that satisfaction has been received in respect of consideration in a manner otherwise than set out in the document. But those are matters, which come more appropriately under the first proviso. 12 When there is a document in writing which does not contain the entire agreement between the parties, but embodies only some of the conditions, oral evidence to prove some other terms which had been agreed upon and which are not inconsistent with the written instrument is clearly admissible in evidence. 13 It is well-settled that where the document is a formal one no oral evidence relating to any contemporaneous agreement inconsistent with the terms of the document would be permitted. The same cannot however be said in respect of an informal document. If a hath chitha is one, as in the present case, which contains only an acceptance of a liability and promise to pay a previous debt there is no escape from the conclusion that it is an informal document which need not contain all that had been agreed to between the parties. Therefore, it was open to the plaintiff in the present case to

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lead evidence to show a contemporaneous agreement between the parties in respect of payment of interest. 14 Where a separate oral agreement pleaded by the party, was on a distinct and collateral matter, although it might have been a part of the same transaction, and if the instrument was silent on that point which is the subject matter of the agreement, such oral agreement would fall within the proviso (2), and oral evidence is admissible. 15 11 Loknath v. Jagbir Suri, 1982 Cr LJ 1328(J&K) . 12 S. Rajanna v. S.M. Dhondusa, AIR 1970 Mys 270; Narasimhachari v. Indo Commercial Bank, AIR 1965 Mad 14; dissenting from Ranbahadur Singh v. Awadhbehari Prasad, AIR 1939 Pat 411. 13 Balaram Agasti v. Ramesh Chandra Mohanty, AIR 1973 Ori 13; Rati Singh v. Ram Prasad Singh, AIR 1971 Pat 156. 14 Rajendra Prasad v. Gaya Prasad Sah, AIR 1975 Pat 312; Asad Ali Tahsildar v. Answar Ali, AIR 1959 Tripura 40; following in Afsar Shaik v. Saurava Sundari Dasi, (1917) 217; Dissenting in Banwarilal v. Jagar Nath Pershad, AIR 1916 Pat 406(1); Moti Biswas v. Haripada Pal, AIR 1923 Cal 402. 15 Nagendra Nandini Dasi v. Bholanath Khonsa, (1917) 41 Cal WN 734, 736; Kunja Behari v. Raman Behari, AIR 1937 Cal 619; Nokhelal v. Seth Kishanlal, AIR 1950 Nag 44.

30. DOCUMENT SILENT AS TO CERTAIN MATTERS Where there was a contract in writing that the defendant having a tea estate has to supply Pasupara 'A' dust for 12 months but was silent as to the quantity to be supplied every month, it was held that Cl. (i) of the contract providing for the sale of the entire out put of Pasupara 'A' dust produced in the estate for 12 months had reference to whatever was produced as a dust, subject to the exercise of the discretion under clause IX of the contract given to the defendant to make any portion of the tea produced into leaf grade. A fixation of the quantity of Pasupara 'A' dust to be supplied to the plaintiff would, therefore, be inconsistent with the express liberty given to the defendant under Cl. (ix). Hence, the oral agreement was inadmissible in evidence. 16 Where a contract of sale is alleged to be by sample and the contract reduced to writing between the parties is silent about a sample being exhibited or about the quality conforming to a sample shown at the time of the contract, no evidence can be given to determine whether the contract was by sample. 17 A mortgage deed reciting that entire consideration money was received by mortgagor. The mortgagee admitted that only part of it was paid to the mortgagor. Extrinsic evidence was held admissible to prove that a duty was cast on mortgagee to pay off dues of mortgagor as the document was silent on the point. 18 Document has to be treated as a mere acknowledgement when it is silent as to interest. Hence oral evidence as to interest should be allowed. 19 Where a member of Hindu Joint Family executed an agreement to sell joint property, oral evidence is admissible to prove the character of the execution i.e., the member executed the document as Karta of the family, when the agreement itself is silent on the point. 20 Where cattle seized from the accused were put in safe custody of another person who undertook that he will produce them when so ordered by court, pending the trial and there was no provision for expenses for keeping cattle, it was held oral understanding to that effect can be proved under Section 92, Proviso 2. 21 Where a deed of transfer is silent on the point of consideration, parol evidence may be allowed to be given in order to show that the transfer was for consideration. 22 Where an agreement of partnership is silent as to the liability to pay income-tax due in respect of the profits of the partnership, Section 92, Evidence Act, would not prevent the partners from proving that the intention was that the tax should be paid on the individual profits of the partners and not on the profits of the business. 23 16 A.V. Thomas & Co. Ltd. v. M.P. Fernandez, 1952 Tra/Co. 117 (FB). 17 Mahadev Ganga Prasad v. Gouri Shankar, AIR 1950 Ori 42(DB) . 18 Ram Rup Singh v. Jang Bahadur Singh, AIR 1951 Pat 566(DB) .

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19 Briji Kishore Rai v. Lakhah Tewari, AIR 1978 All 314. 20 Harisingh v. Umrao Singh, AIR 1979 All 65. 21 Jagannath Harlal v. State, AIR 1953 MB 192. 22 Kanak Sunder Bibi v. Ram Lakhan Pandey, AIR 1955 Pat 458(DB) . 23 Manilal Bacharlal Sanghvi v. Keshabji Pitamber, AIR 1952 Pat 33(DB) .

31. IMPLIED WARRANTY Though there was a written contract between the parties, it contained nothing which exempted B from his liability for breach of contract with regard to the quality of goods. An oral agreement which contained the guarantee of quality and formed a separate agreement was held admissible in evidence under Section 92, Proviso 2 of the Evidence Act . 24 When a registered mortgage deed did not mention any kind of interest simple or compound, it was held that the mortgagee, was not prevented from showing that the interest was compound and he is entitled to plead on oral agreement and to prove on the strength of the account stated that the interest agreed upon between the parties was really compound. It was held that that would not be a variation of the original mortgage bond but would be an independent agreement. 25 Where a deed of possessory mortgage also provides for a lease back to the mortgagor on a monthly rent corresponding to the monthly interest on the mortgage debt and a rent note is executed giving effect to the lease, effect must be given to each deed according to its terms and the court can not by reading the two together spell out a transaction totally different in character. Their being component parts of the same transaction does not mean that the two deeds are inconsistent with each other. Nor are the circumstances that rent is liable to be appropriated towards interest, which like rent was payable every month, inconsistent with the transaction being a lease. Thus, in a suit for eviction by the mortgagee based on the rent-note which is executed as a sequel to the mortgage deed, it is not open to the mortgagor to plead that he is not in fact a tenant. 26 A lessee under a registered lease wanted to prove an oral agreement regarding his preferential right to purchase the leased property if it was brought for sale. The lease was silent on the point. It was held that under Section 92, evidence of such a collateral contract, if there were such, would not be excluded, though it would be strange to omit such a condition if it had been agreed. 27 24 Indian Textiles Co. Ltd. v. Kanhaiya Lal Agarwalla, AIR 1959 Pat 378. 25 Sital Prasad Jag Mohan Singh v. Kusban Hussain, AIR 1952 Nag 25(DB) . 26 Trustees of Motidas Beragi Sadhu Ratlam Trust Board v. Ramjatan Ram Prasad Sonar, AIR 1963 MP 265(IB) ; relying on Abdullah Khan v. Basharat Hussain, ILR 35 All 48(PC) ; Commer. of I.T. Bihar & Orissa v. Kameshwar Singh, AIR 1935 PC 172; Mian Feroz Shah v. Sohbat Khan, AIR 1933 PC 178; Abdul Khadir v. Subrahmanya Pattar, AIR 1940 Mad 946 dissenting from Haji Muhammad (Dr.) v. Shah Akhtar Hussain, AIR 1960 Pat 106; Harilal Bhagwanji v. Shastri Hemshanker, AIR 1958 Bom 8. 27 Jehangir Shapoorji Taraporevala v. Reverand Swarkar, AIR 1932 PC 231; Secretary of the Bombay Tract and Book Society, AIR 1932 PC 231.

32. NEGOTIABLE INSTRUMENTS Where a promissory note was silent as to where money under it was payable and evidence was sought to be given on that point, it was held that the proviso-2 of Section 92 allowed proof of any separate oral evidence about any matter on which a document was silent and which was not inconsistent with its terms. The creditor was, therefore, entitled to prove that the parties agreed that the promissory note was to be paid at a specified place. 28

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Where on the date of execution of a pronote, there was collateral agreement giving ten months time for repayment of the debt, it was held that under Section 63 of the Contract Act an agreement to give time is operative in India and the English decisions to the contrary were inapplicable. 29 An agreement is not admissible in evidence when there is no stipulation regarding interest on the hundi (promissory note). In such cases the payee of the hundi is entitled only to interest at the rate of six per cent, per annum as provided by Sections 80 of the Negotiable Instruments Act 30 . If there is a collateral written agreement, fixing the rate of interest in accordance with the custom prevailing in the district, the interest is recoverable at the rate agreed upon between the parties. 31 Where the customers of a bank used to overdraw from their account and give a letter in a printed form agreeing to pay interest on the daily balances in the account and the fact that the bank charged compound interest with monthly rests was shown in their pass books, it was held that Section 92 would not prevent from proving an agreement to pay compound interest which could be implied from the customers long acquiescence in such a method of calculation of interest. 32 A receipt which purported to show that simple and not compound interest was to be charged (though the mortgage-bond contained provision for the payment of compound interest), was held to be admissible in evidence 33 . The receipt did not require registration and was therefore admissible in evidence. It operated as a waiver. 28 J.N. Sahani v. State of M.B., AIR 1954 MB 184(FB) : ILR 1954 MB 343. 29 Annamalai v. Valayudu, ILR 39 Mad 129(FB) . 30 Banwari Lal v. Jagannath Prasad, (1916) 1 PLJ 71; Fathuma Bivi v. Hanumantha Row, (1907) 17 MLJ 296; Kishor Chand v. Guram Ditta Mal, (1911) PR No. 52 of 1911 (Civil). See, however, In re.: Sowdamonee Debya v. A. Spalading, (1882) 12 CLR 163. 31 Goswami Sri Ghanshiram Lalji v. Ram Narain, (1906) 34 IA 6, 9 Bom LR 1 : ILR 29 All 33. 32 Haridas v. Mercantile Bank, AIR 1920 PC 61; also Sital Prasad v. Kurhan Hussain, AIR 1952 Nag 25, 28; (a case of mortgagee proving compound interest). 33 Kailash Chandra Nath v. Sheikh Chhenu , AIR 1951 Cal 513 (1).

33. AND WHICH IS NOT INCONSISTENT WITH ITS TERMS Where there was an oral arrangement between the parties to a mortgage, to the effect that the mortgagee was to be put in possession of the mortgaged property and the profits arising from it should be taken in satisfaction of the interest, it was held that such an oral arrangement did not vary contradict, add to the terms of the mortgage deed and it provided for the satisfaction of one of the conditions of the deed, evidence was admissible under proviso (2) of Section 92. 34 Oral evidence to prove that pronote is by way of security is not admissible.

35

34 Bal Govind Babu v. Ram Singh, AIR 1946 All 283; Sukh Lal v. Murari Lal, AIR 1926 Oudh 273; Sahib Din v. Dhanush Dhariji, AIR 1948 Oudh 129; Jagatpal Singh v. Harnam Singh, AIR 1916 Oudh 313. 35 N. Chella Perumal Chetty v. N.M. Jayarathnam Chettiar, AIR 1960 Mad 314.

34. EXISTING ORAL AGREEMENT, PROVABLE [PROVISO (3)] Under this proviso a contemporaneous oral agreement to the effect that a written contract was to be of no force or effect and that it was to impose no obligation at all until the happening of a certain event, may be proved. In a sale of property, payment of consideration was a condition precedent. Failure of consideration was allowed to be proved by independent evidence. 36 See ills. (i ) and (j ).

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Oral evidence to prove some other terms which have been agreed to and which constitute a condition precedent to the obligation under the written agreements and not inconsistent with written agreement, is admissible. T AYLOR on Evidence (10th Ed., Section 1135, P. 814-15) observed "The rule against the admissibility of parol evidence contained in the section does not exclude evidence of oral agreement, which amounts to a condition subject to which the written agreement had been entered into, and subject to which the performance of the written agreement is to depend, e.g., that a bill or mortgage was only to stand as security for certain moneys or otherwise to show the real nature of the transaction. Thus, it may be shown by parol evidence that an instrument, apparently executed as a deed, had really been delivered simply as an escrow, or it may also be shown that the document was really meant to be conditional on the happening of an event which had never occurred". The distinction in point of law is that evidence to vary the terms of an agreement in writing is not admissible, but evidence to show that there is not an agreement at all is admissible. There is no rule of law to estop parties from showing that a paper purporting to be a signed agreement, was in fact signed by mistake, or that it was signed on the terms that it should not be an agreement till money was paid or something else was done 37 or that is was intended to be a sham and not operative. 38 G ARTH C.J., observed "The proviso is intended to introduce into the law of evidence of this country the rule which is well-established and understood in England and treated in Section 1038 (11th Ed, Section 1135) of M R . T AYLOR ' S book on Evidence. That rule is that, when at the time of a written contract being entered into, it is orally agreed between the parties that the written agreement shall not be of any force or validity until some condition precedent has been performed, parol evidence of such oral agreement is admissible to show that the condition has not been performed and consequently the written contract has not become binding. Until the condition is performed, there is, in fact, no written agreement at all......But this rule can never apply to a case where the written agreement had not only become binding, but had actually been performed as to a large portion of its obligation". 39 The true meaning of the words "any obligation" is any obligation whatever under the contract, and not some particular obligation which the contract may contain. 40 Where, at the time of the execution of a written contract, it is orally agreed between the parties that the written agreement shall not be of any force or validity until some condition precedent has been performed, parol evidence of such oral agreement is admissible to show that the condition has not been performed, and consequently, the written agreement has not become binding. This rule will not apply to a case where the written agreement had not only become binding, but had act ually been performed as to a large portion of its obligations. 41 In Rowland Ady & Others v. Administrator General of Burma 42 , the Privy Council observed that the accompanying or collateral agreement which was the condition of the execution of the promissory note was a written agreement and therefore outside Section 92. Even if the collateral agreement was an oral agreement so as to come within Section 92, it would fall within Proviso (3) of the section which states the Indian Law in terms which are in accord with English Law. They further observed that it is necessary to distinguish a collateral agreement which alters the legal effect of the instrument from an agreement that the instrument should not be an effective instrument until some condition is fulfilled or to put it in another form, it is necessary to distinguish an agreement in defeasance of the contract from an agreement suspending the coming into force of the contract contained in the promissory note. In their Lordships judgment, this collateral agreement came under the latter description and was within the proviso. The promissory note, by its express terms provided that the amount was payable on demand, that is at once. The obligation under the note attaches immediately. But the agreement not to make a demand until the specified condition is fulfilled has the intention and effect of suspending the coming into force of that obligation, which is the contract contained in the promissory note. Thus the oral agreement constitutes a condition precedent to the attaching of the obligation and is within the terms of the Proviso (3) of Section 92. 43

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In Narandas v. Papammal 44 where a pronote was executed and the parties entered into a collateral oral agreement to the effect that no demand for payment was to be made until certain specified condition was fulfilled, the Supreme Court, following the decision of the Privy Council in Rowland Ady. v. Administrator General of Burma 45 held that though under the pronote by its express terms payable on demand, the obligation to pay attaches immediately, the parol agreement of the parties to suspend the coming into force of the obligation until the specified condition is fulfilled constitutes a condition precedent to the attaching of the obligation and it is open to the plaintiff to adduce evidence of oral agreement under the 3rd proviso. 46 This proviso presupposes that the contract, grant or disposition of property itself remains intact, but the condition precedent pleaded must in its very nature be extraneous to the contract, grant or disposition itself and as agreed must come into existence before the obligation attaches thereunder.

47

If the oral agreement pleaded was one stating that the amount was to be adjusted in the making up of partnership accounts, it was held that proviso (3) was not applicable as the oral agreement had the effect of total denial of the legal liability under the pronote. 48 Evidence of oral contract regarding the debt embodied in a promissory note was allowed. The note was taken as a collateral security for the debt. 49 36 Ganesh Pd. v. Deo Nandan, AIR 1985 Pat 94. See also Satyanarayan Prasad Jaiswal v. Jamuna Prasad Jaiswal, 1999 AIHC 2479 (para 20) (Gau). 37 Pym v. Campbell, (1856) 6 El & B1 370, 371. 38 Gangabai v. Chhabubai, AIR 1982 SC 20. 39 Jugtanand v. Nerghan, (1880) 6 Cal 433. 40 Jugtanund Misser v. Nerghan Singh, (1880) 6 Cal 433; Radhakissen Chamaria v. Durga Prasad Chamaria, (1931) 59 Cal 106 : AIR 1932 Cal 328; Tirvenagada v. Rangasami, ILR Mad 19. 41 Jugtamund Misser v. Nerghan Singh, (1880) 6 Cal 433; Walter Mitchell v. A.K. Tennent, (1925) 52 Cal 677 : AIR 1925 Cal 1007; C.W. Kinlock v. Asa Ram, (1877) PR No. 51 of 1877 (Civil); Khuda Baksh v. Budhar Mal, (1882) PR No. 186 of 1882 (Civil). 42 AIR 1938 PC 198. 43 See also Narandas Morardan Galiwala v. S.P.A.M. Papammal, AIR 1967 SC 333; Bhogiram v. Kishorilal, (1928) 50 All 754 : AIR 1928 All 289; Ali Jawad v. Kulanjan Singh, (1922) 44 All 421 : AIR 1922 All 262; Donolatram v. Vasdeo, (1942) Kar 516. 44 AIR 1967 SC 333. 45 AIR 1938 PC 198. 46 Rowland Ady. v. Administrator General of Burma, 1938 PC 198; Balaram v. Ramesh, AIR 1973 Ori 13; Dungarmull Kissen Lal v. Sambhu Charan Pandey, AIR 1951 Cal 55; Satyanarayana v. Anjaneyulu, AIR 1935 Mad 310; Sk. Jamu v. Md. Ibrahim, AIR 1926 Nag 194. 47 Chhaganlal Kalyandas v. Jagjiwandas Gulabdas, (1939) 41 Bom LR 1263 : AIR 1940 Bom 54. 48 Chhaganlal v. Jagjiwandas, AIR 1940 Bom 54; Dowlatram Mohandas v. Vasdeo, AIR 1943 Sind 67; Dungarmull v. Sambhu, AIR 1951 Cal 55. 49 Khitish Chandra v. Rajkishore Sahu, AIR 1980 Ori 10.

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Ratanlal & Dhirajlal: Law of Evidence, Updated 23rd Edition/THE INDIAN EVIDENCE ACT (ACT 1 OF 1872)/PART II ON PROOF/CHAPTER VI OF THE EXCLUSION OF ORAL BY DOCUMENTARY EVIDENCE/S. 92.

35. CONDITION PRECEDENT Where there is a sale-deed by A in favour of B an oral agreement, that the sale was to be effective only in case A dies of illness without paying the expenses incurred by B, can be admissible. 50 Evidence of a contemporaneous oral agreement to suspend the operation of a written contract of sale until an agreement for re-sale is executed is admissible. 51 An oral agreement that the execution of a deed of reconveyance should be a condition precedent to the execution of the sale-deed in pursuance of the written contract to sell immovable property can be proved under this proviso. 52 Where the contract was to sell property for Rs. 30,000 which sum was erroneously stated to have been paid, it was competent for the vendor, without infringing any provision of the Act, to prove a collateral agreement that the purchase-money should remain in the vendee's hands for the purposes and subject to the conditions alleged by the vendor 53 ; because the section does not say that no statement of fact in a written instrument may be contradicted by oral evidence but the terms of the contract may not be varied, etc. Separate oral agreement to the effect that the contract was subject to the condition that the vendor was to persuade the lessee in possession to surrender his possession within the time specified for the sale, is a condition precedent to the arising of obligations under the contract for sale and has not the effect of varying or contradicting the terms of the contract. Evidence of that agreement which falls within the proviso (3) to Section 92 can be given, since its effect is to prove the nature of the contract, viz, that it is a contingent contract. 54 Where the defendant challenged the surrender deed executed by her on the ground of playing fraud by giving empty promises that she would be paid Rs. 300/- and half of the lands would be settled on her grandchildren, it was held that it would fall under provisos (1) and (3) of Section 92 and extrinsic evidence is admissible for proving fraud. 55 Oral agreement set up in defence that if sale deed was not presented for registration on the same day on which it was written and if consideration was not paid before the Sub-Registrar, sale deed should be regarded as cancelled, null and void. It was held that such agreement does not fall under any of the provisos of Section 92 and could not be allowed to be proved. It is submitted that the decision is not correct. 56 In respect of written agreement which has come into force forthwith and has been partly act ed upon, there can be no condition precedent and therefore oral evidence against the terms of contract cannot be adduced. 57 50 Syed Noor v. Qutbuddin, AIR 1956 Hyd 114(DB) : ILR (1956) Hyd. 328. 51 Dada Honaji v. Babaji Jagushet, (1865) 2 Bom HCR 38; Rowland Ady. v. Administrator-General of Burma, AIR 1938 PC 198 : (1938) 40 Bom LR 1075. 52 Sahdeo v. Namdeo, (1949) Nag 15. 53 Sah Lal v. Inderjit, (1900) 2 Bom LR 553, 27 IA 93 : ILR 22 All 370. 54 Kochuvareed v. Mariappa Gounder, 1954 Tra/Co. 10. 55 Ullasmoni Dasi v. Sukhomani Dasi, AIR 1945 Pat 311; Niranjan Samal v. Trilochan Kuar, AIR 1956 Ori 81. 56 Shama Rao v. Patel Kanake Gowda, AIR 1962 Mys 203; relying on Walter Mitchell v. A.K. Tennent, AIR 1925 Cal 1007; Jugtanand v. Nerghan Singh, ILR 6 Cal 433. 57 Palaniappa v. P.T. Kandaswamy, (1971) 1 Mys. LJ 258.

36. DECREE

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The understanding between the parties was to the effect that the compromise, filed in the suit according to the terms embodied in the decree itself, would have force or effect only on conditions that all other civil and criminal litigations were withdrawn. Withdrawal of other cases was manifestly a condition precedent to the attaching of any obligation under the contract of the compromise and the case falls within the language of provisos (1) & (3) to Section 92 Evidence Act. 58 58 Niranjan Samal v. Tirlochan Kuar, ILR 1955 Cut 95 : AIR 1956 Ori 81.

37. CONSENT DECREE Where a consent decree does not refer to the entire disputes between the parties and some vagueness remains, the factual background as also the manner in which existence of rights have been claimed by the parties would be relevant. 59 A consent decree is a contract between the parties with the seal of the court superadded to it. In order to find out the meaning of the words employed in the decree, the Court has to ascertain the circumstances under which these words came to be used. In the event the document is vague, the same must be construed having regard to surroundings and/or attending circumstances and the evidence led by the parties. 60 59 Parayya Allayya Hittalamani v. Parayya Gurulingayya Poojari, AIR 2008 SC 241, 244 (para 18). 60 Parayya Allayya Hittalamani v. Sri Parayya Gurulingayya Poojari, (2007) 14 SCC 318 (paras 14 to 17).

38. ESCROW An escrow is a document deposited with the third person to be delivered to the person purporting to be benefited by it upon the performance of some condition, the fulfilment of which is only to bring the contract into existence. Oral evidence is admissible under proviso to Section 92 to show that the deed was executed or delivered conditionally as an escrow. Escrow has also been explained as an intended deed after sealing and any signature required for execution as a deed, to be delivered as an escrow, that is as a simple writing which is not to become the deed to the party expressed to be bound by it until some condition has been performed. Escrow has also been defined to mean that where an instrument is delivered to take effect on the happening of a specified event or upon condition that it is not to be operative until some condition is performed then pending the happening of that event or the performance of the condition, the instrument is called an escrow. 61 61 Hira Mistan v. Rustom Jamshedji Noble, 2000 AIHC 1543 (para 25) (Bom).

39. EXISTING ANY DISTINCT SUBSEQUENT ORAL AGREEMENT [PROVISO (4)] This proviso is based on the principle--"Nothing is so agreeable to natural equity as that a thing be unbound in the manner in which it was bound." Under this proviso a prior written contract may be varied by a subsequent verbal one, in cases in which the law does not require the contract to be in writing. Where the original contract is of such a nature as that the law requires it to be in writing or where its execution has been followed by the formality of registration, the only way of proving the rescission or modification of the original contract must be by proof of an agreement of the like formality and not by an oral agreement. Only those agreements come within the proviso which affect the terms of the previous transaction directly by virtue of the consensus of those who alone are competent to rescind or modify the original contract, viz., all the parties concerned or all their representatives 62 T AYLOR ' S E VIDENCE (10th Ed., Section 1142, p. 820) observed: "After an agreement has been reduced to writing, it is competent to the parties, at any time before breach of it, by a new contract not in writing, either altogether to waive, dissolve, or annul the former agreement, or in any manner to add

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to, or subtract from, or vary or qualify the terms of it, and thus to make a new contract, which is to be proved, partly by the written agreement, and partly by the subsequent verbal terms, engrafted upon what will thus be left of the written agreement. The rule against varying or contradicting a written instrument by parol evidence, does not exclude verbal evidence adduced to prove, that the written agreement has been totally waived or discharged". Where a later registered deed did not mention the consideration for the sale which was however mentioned in the earlier unregistered transfer deed of the same property and the later registered deed was intended to supersede the earlier unregistered deed, it was held relying on 1969 SC 136 that the earlier deed is not admissible as the terms of a registered deed cannot be varied by an unregistered deed. 63 It was held that, it was open to the appellants to lead evidence to show that there was, apart from the rent note, a distinct subsequent oral agreement under which the terms of the oral contract or grant was modified and that the partners of the firm, both before and after its recomposition were the real tenants of the shop. 64 Where there was a lease, the lessor can recover enhanced rent on the basis of a subsequent oral agreement. Oral evidence is permissible of the subsequent oral agreement, as the original lease was neither by law required, to be in writing nor to be registered. 65 This proviso does not exclude evidence of a subsequent oral agreement substituting a new contract for one reduced to writing and registered according to law, the said proviso only refers to a subsequent oral agreement to rescind or modify such contract. 66 The distinction between a substituted new agreement by novation and the mere alteration of an old contract is that in the former case the old contract is extinguished, while in the latter it remains binding subject to the alteration which the parties have agreed to. 67 According to the Rangoon, the Lahore and the Bombay High Courts a judgment-debtor can set up a new verbal agreement with the decree-holder to accept some variation or a new contract in substituting of the original decree 68 but not according to the Allahabad High Court. 69 Where the terms of the registered document were ambiguous, oral evidence could be permitted to be adduced in order to determine the true intention of the parties. 70 62 Goseti Subba Row v. Varigonda Narasimham, (1903) 27 Mad 368, 370. 63 S. Rajanna v. S.M. Dhondusa, AIR 1970 Mys 270. 64 Niranjan Kumar v. Dhyan Singh, AIR 1976 SC 2400. 65 Abdul Kadir v. Noor Mohammed Sait, AIR 1959 Ker 400. 66 Jaggat Singh v. Devi Ditta Mal, 1883 PR No. 169 of 1883 (Civil). 67 Lakhu Ram v. Amir Khan, (1888) PR No. 14 of 1889 (Civil). 68 Ma Shwe Pee v. Maung San Myo, (1928) 6 Ran 573; Abdul Karim v. Hakam Mal Tani Mal, (1933) 14 Lah 688; Kalyanji Dhana v. Dharamsi Dhana & Co., (1934) 37 Bom LR 230. 69 Lachhman Das v. Baba Ramnath Kalikamliwala, (1921) 44 All 258. 70 B.R. Mulani v. A.B. Aswathanarayana, AIR 1993 Kant 257 (para 22).

40. MORTGAGE An oral agreement, subsequent to the registered mortgage deed, entered into to take less amount than due under the mortgage deed was held inadmissible as the oral agreement modified the terms of the written deed. 71 No unregistered agreement varying terms of the mortgage could be recognised. 72 Subsequent oral agreement allowing usufructuary mortgagee to remain in possession for a further period in lieu of interest on debt incurred subsequent to mortgage is not administrable. 73 In a suit for

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redemption, the mortgagees pleaded that the mortgaged property was subsequently sold to them verbally for the mortgage debt and a further loan. It was held that the mortgage being by a registered deed, evidence of a subsequent oral agreement of sale was inadmissible under this proviso. 74 The Bombay and the Lahore High Courts have held that a subsequent agreement to take less than is due under a registered mortgage-bond is an agreement modifying the terms of a written contract and oral evidence is inadmissible in proof of it 75 . In another suit for redemption of mortgage, the mortgagee contended that the document in question was not a mortgage but a lease. It was held that nomenclature of a document was not conclusive and oral evidence as regards the intention of the parties was not barred by virtue of Section 92. 76 The Calcutta and the Madras High Courts have held that oral evidence is admissible to prove the discharge and satisfaction of a mortgage bond 77 . The Bombay High Court has subsequently held that where all that the defendant wants to prove, is some fact tending to show that the obligation has been discharged, either by payment, or by remission of anything that was due, such fact may be proved as not amounting to a modification of the conditions of the mortgage but relating mainly to the discharge of the contract, and not involving any question of its terms. 78 A Full Bench of the Allahabad High Court has held that an agreement between parties to a mortgage deed cannot be proved by oral evidence to show that on payment of a sum of money less than what would be due on calculating the correct amount of principal and interest at the stipulated rate entered in the mortgage deed the debt would be discharged. Such evidence would be admissible to prove the satisfaction of the debt, as resulting from a mutual agreement by which the mortgagee accepted, in full discharge of the obligation, payment of a part of the sum due and remitted the balance. A plea of such agreement and satisfaction is not one setting up an agreement contradicting, varying, adding to or subtracting from the terms of the contract of mortgage and does not contravene the provisions of this section 79 . A debtor cannot prove that his creditor agreed verbally to take less, but he can prove that the creditor act ually did accept less in full satisfaction. Where the agreement was that the mortgagee is to enjoy the profits by keeping possession of one of the items of mortgaged property for 5 years, in full satisfaction of the mortgage debt, it was held that such agreement can be proved because it was in fulfilment of the obligation under the mortgage and not in any way altering the terms of the deed. 80 The fact that the mortgagee actually came into possession of the mortgaged property, after the execution of the mortgage deed, can be proved by evidence as it would not come under proviso (4) and as such evidence is not to vary add or contradict the terms of the mortgage deed. 81 Oral testimony of the plaintiff that the property was mortgaged by him against the loan taken by him which was urgently needed for contract work and for treatment of his elder brother and testimony of PW-2 stating that he went to the appellant along with the plaintiff to tender the mortgage money and to claim the redemption of suit property but appellant was persistently refusing to agree to the demand, and his testimony was corroborated. It was held that the bar under Sections 91 and 92 would not be applicable to mortgagor's oral testimony. Moreover, no attempt was made to supplement the contents of the mortgage deed to attract the bar under Sections 91 and 92. 82 An unregistered contract of mortgage is inadmissible in evidence. If that document is considered as a mere memorandum evidencing the deposit of title deeds in pursuance of earlier contract, then the correctness of the recitals therein can be gone into without being exhibited by Section 91 and 92 of the Act . 83 71 Mallappa v. Matam Nagu Chetty, ILR 42 Mad 41(FB) ; Jagannath v. Shankar, AIR 1920 Bom 115; see also Narayan Singh v. Keshosa, AIR 1930 Nag 235; Md. Niaz v. Nanhe Mal, AIR 1929 All 615; Yegnanarayana v. Suppan Chetty, AIR 1927 Mad 1111; Chundooru Lakshmana Setti v. Duygisetty Chenchuramayya, (1918) 34 MLJ 79; Kashinath Bhaskar Datar v. Bhaskar Visheshwar, AIR 1952 SC 153, 155 para 10. 72 Chimanlal v. Amar Chand, 1965 Raj 3 : (1964) 14 Raj 1096. 73 Vishwanatha v. Fatima Bi, AIR 1952 Hyd 5. 74 Maung Myat Tun Aung v.Maung Lu Pu, (1925) 3 Ran 243. 75 Jagannath v. Shankar, (1919) 44 Bom 55 : 22 Bom LR 39; Ghanaya Lal v. Rallia Ram, (1928) 9 Lah 597; But see Sukhlal v. Jetha, (1928) 30 Bom LR 1455. 76 Hathika v. Puthiapurayil Padmanabhan, AIR 1994 Ker 141 (paras 9 and 14).

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77 Ramlal Chandra Karmokar v. Gobinda Karmokar, (1900) 4 CWN 304; Mahim v. Ram Dayal, (1925) 42 CLJ 582 : 30 CWN 371; Bhaba Sundari v. Ram Kamal Dutta, (1925) 44 CLJ 269; Balasundra Naiker v. Rangantha Aiyar, (1929) 53 Mad 127; Manuswami Mudaliar v. Govindaraja Chettiar, (1934) 58 Mad 371. 78 Sukhlal v. Jetha, (1928) 30 Bom LR 1455, 1462. 79 Collector of Etah v. Kishori Lal, (1930) 53 All 157, FB; Jwala Prasad v. Mohan Lal, (1926) 48 All 705; disapproved. 80 Lakshmi Narasimha Rao v. Raghavamma, AIR 1936 Mad 380; Tarapada Mandal v. Hajia Khatum Bibi, AIR 1956 Cal 625; following in Afsar Sheik v. Saurawa Sundari Dasi, AIR 1917 Cal 217. 81 Narain Mishra v. Mahanth Mishra, AIR 1952 Pat 421 : (1972) 1 Cut WR 355. 82 Serajuddin v. Md. Abdul Khalique, AIR 2004 Gau 126, 133 (para 19) : 2005 (1) Gau LR 299 : 2003 (3) Gau LT 696. 83 Yeeramachineni Gangadhara Rao v. Andhra Bank Ltd., AIR 1971 SC 1613 : (1971) 1 SCC 874.

41. LEASE Any variation of rent reserved by a registered lease deed must be made by another registered instrument. The agreement between the landlord and the tenant by which the rent was increased being in variation of a written contract evidence of it was barred under Section 92. 84 A lease contained a covenant for renewal of the lease whereby if the lessee desired to renew the lease he should give three months' notice in writing of his intention to do so. The lessee, however, failed to observe this covenant and relied on an oral agreement between himself and his lessors for renewal of the lease. It was held that evidence of such oral agreement was not admissible. 85 Oral evidence was similarly not allowed to show that another person than the one mentioned in the deed was intended to be lessee. 86 Though no writing is ordinarily necessary for surrendering a tenancy, if the original lease is registered, the surrender of a portion of the tenancy with an abatement of rent can only be effected by a registered instrument as in such a case surrender involves a variation of the original contract of tenancy. Oral evidence as regards such surrender is inadmissible under Section 92 of the Evidence Act. 87 A stipulation in a registered lease deed about payment of certain amount of rent is a term of the contract and no oral evidence is admissible to contradict or vary the rent when the lease is intended to be an operative transaction, except under another registered document. 88 Where by a written document the lessor had scored off a certain portion of his property from the lease and the said document was initialled by both the parties, it was not permissible to the lessee to adduce oral evidence to urge or prove or attempt to prove that the scored off portion of the property was a part of the leased premises. 89 84 Raval & Co v. K.G. Ramachandran, AIR 1974 SC 818. 85 Mark D'Cruz v. Jitendra Nath Chatterjee, (1919) 46 Cal 1079; Karampalli Unni Kurup v. Thekku Vittil Muthorakutti, (1902) 26 Mad 195. 86 Roshanlal v. Munshi Ram, AIR 1981 P&H 73; Ram Chander v. Mangal Singh, AIR 1981 P&H 94. 87 Ahmed Mara cair v. Muthu Valliappa Chettiar, AIR 1961 Mad 28; Kadavannoor Illath Subramanian Nambudiri v. Kallu Veettil Present Karanavan Madhavan Nair, AIR 1971 Ker 333; The Indian Craft Village Trust v. The Calcutta Municipal Corporation, AIR 2007 (NOC) 2300(Cal) . 88 K.S. Narasimha Chari v. Indo Commercial Bank Ltd., AIR 1965 Mad 147; Mayandi v. Oliver, ILR 22 Mad 261; Karampalli v. Thekku, ILR 26 Mad 195; Preonath v. Madhusudhan, (1898) 25 Cal 603(FB) ; Adityam Iyer v. Ramkrishna Iyer, ILR 38 Mad 514; dissenting from Jyagaraja v. Vedathanni, AIR 1936 PC 70. 89 Inder Sain Beni v. Chopra Electricals, (2004) 7 SCC 277, 285 (para 13).

42. SALE Where the registered sale deed was for the land and the super structure thereon and the vendee under contemporaneous unregistered agreement agreed to pay compensation in case he failed to

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build hospital on land sold, it was held that unregistered agreement cannot be enforced and agreement is not admissible. 90 Where a sale deed is registered and on the date it was executed money was paid by the purchaser and was received by the seller and it was the intention of the parties that it should be an effective transaction, a subsequent unregistered document cancelling the sale cannot prevail over the sale deed. 91 An agreement to convey, though reduced to writing, need not be registered under the Indian Registration Act . The agreement can therefore be validly modified by an oral agreement entered into between the parties92 but where the vendor accepted the fact of the execution of the sale-deed and the case was not that any fraud was played by the vendee but the vendor only named it a sham transaction, oral evidence could not be permitted to be considered to vary the terms of the deed which had been recorded in writing. 93 A lessor can never enhance rent on the basis of a subsequent agreement when the original lease is either required by law to be in writing or to be registered. 94 Where the plaintiff specifically pleaded that the transaction evidenced by the sale-deed in question was nominal, that it was executed by way of security of the amount borrowed by the plaintiff from the defendant and the defendant was to reconvey the suit plot to him on return of the money with interest, it was held that the plaintiff was entitled to lead oral evidence to prove that the document was sham and not to be act ed upon by the parties. 95 Sections 92 and 115, Evidence Act must be read together. When the alleged oral representation made by a party is not provable under Section 92,Section 115 cannot be invoked to support oral representation. Hence oral consent by landlord is not enough to validate sub-tenancy under Section 16(3), Rent Act and Section 115 will not help to prove sub-tenancy. 96 Normally, ownership and title to the property, will pass to the purchaser on registration of the sale deed with effect from the date of execution of the sale deed. But this is not an invariable rule as the true test of passing of property is the intention of parties. Though registration is prima facie proof of an intention to transfer the property, it is not the proof of operative transfer, if payment of entire consideration is a condition precedent. This intention is primarily to be gathered and determined from the recitals of the sale deed which, if ambiguous and insufficient, require the surrounding circumstances and conduct of the parties to be looked into, subject to the limitations placed by Section 92 of the Evidence Act. 1 90 Ram Kumar Himat Singha v. Gajendra Chandra Bora, AIR 1957 Assam 68. 91 Doddamadiah v. Mallappa, 1953 Mys 6. 92 Hutchi Gowder v. Bheema Gowder, AIR 1960 Mad 33(DB) : ILR 1959 Mad 552. 93 Neelagangavva v. Ningana Gowda, 1996 AIHC 3124 (para 14) (Kant). 94 Abdul Kadir v. Noor Mohammed, 1959 Ker 400. 95 Shankarlal Ganulal v. Balmukund Surajmal Bharuka, AIR 1999 Bom 260 (para 4). See also Mahadev Prasad v. Munnibai, 1999 AIHC 4696 (paras 15, 16 and 19) (MP); Ishwar Dass Jain v. Sohan Lal, AIR 2000 SC 426 (para 18). 96 Ramboxy Laboratories v. Doon Apartments, (1979) 1 Del 84. 1 Kaliaperumal v. Rajagopal, (2009) 4 SCC 193, 197 (paras 18 and 19).

43. GIFT Where the family arrangement was by registered deed where under 1/4 share of properties were given to their mother to be enjoyed for her life, her right to proportionate compensation cannot be defeated by an unregistered compromise deed under which she agreed to forego her interest and such compromise deed could not be put in evidence by virtue of proviso (4) to Section 92. 2 A gift deed of the disputed land was executed by the landlord in favour of his farm servant who was cultivating the said land and who put his thumb impression on the gift deed by way of acceptance and was present at the time of execution of the deed. The truth of the contents of the deed were admitted.

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It was held that mere oral evidence of the donee that notwithstanding the factum of gift, he continued to cultivate the land for the benefit of the donor landlord without his having independent possession. To destroy the tenor and effect of the gift deed, clinching evidence was required to be adduced which the donee's mere oral evidence was not. 3 2 Kamal Mukhi Devi v. Siya Raman Prasad, AIR 1962 Pat 215; distinguishing Yyranan Chetti v. Subramanian Chetti, 1920 PC 33. 3 Ganpat Mahadeo Gawand v. Shrinivas M. Pendre, (2003) 5 SCC 409 (paras 3 and 4). See also Asokan v. Lakshmikutty, (2007) 13 SCC 210, 218 (para 23).

44. CONTRACT Registration of a contract, whether compulsorily registrable or not, is a complete bar to acceptance of oral evidence in proof of modification thereof. 4 A contract reduced to writing and registered, either voluntarily or as required by law, can be modified or rescinded only by a registered instrument and no evidence of subsequent oral agreement to modify or rescind the contract is permissible. 5 The intention of the legislature in enacting proviso (4) to Section 92 appears to be that registration of a document should imply and carry with it a certain solemnity and that when parties enter into the formality of registration even though the formality may not be obligatory, they should be confined to the terms and conditions of their agreement. The view that it is only when a document is compulsorily registrable that proviso (4) can come into operation is erroneous in view of the wording of this proviso. 6

The construction of a contract must depend upon import of words used and not upon what the parties choose to say afterwards. Nor does subsequent conduct of the parties in the performance of contract affect the true effect of clear and unambiguous words used in contract. Intention of the parties must be ascertained from the language they have used, considered in the light of the surrounding circumstances and the object of the contract. Nature and purpose of contract is an important guide in ascertaining intention of the parties. Contract must be read as a whole in order to ascertain true meaning of its several clauses and the words of each clause should be interpreted so as to bring them in harmony with other provisions, if that interpretation does no violence to the meaning of which they are naturally susceptible. 7 4 Idris Alli v. Abdul Samad Barbhuva, AIR 1973 Gau 132. 5 Madan Mohan Jena v. Srinath Samal, AIR 1973 Ori 22; Dr. Harish Chandra Ray v. K.C. Singh, AIR 1977 Ori 76; Ramboxy Laboratories v. Doon Apartments, (1979) 1 Del 84; Subayya Chowdary v. Garikapati Yeeraya, AIR 1957 AP 307; Hindu Khandan Mushtarka v. Shri Hem Raj, AIR 1962 J&K 41; Bhan Singh v. Gokal Chand, AIR 1919 Lah 42; dissenting from Devi Prasad Ram Dayal v. Manohara Sundarpal, AIR 1953 MB 157(GB) ; Bhola Nath Rastogi v. Santosh Prakash Arva, AIR 1975 Pat 336; Balwant Singh Walia v. Maya Devi, 1979 Cur LJ 7(Civil) ; Madina Rice Mills v. Y. Sampangirmaih, AIR 1953 Mys. 66(DB) : ILR 1952 Mys 230. 6 Chatar Singh v. Ganpatlal, AIR 1951 Ajmer 79(II) . 7 Bank of India v. K. Mohandas, (2009) 5 SCC 313, 328 (paras 28 and 31), relying on Ottoman Bank of Nicosia v. Ohanes Chakarian, AIR 1938 PC 26; Ganga Saran v. Firm Ram Charan Ram Gopal, AIR 1952 SC 9 and North Eastern Railway Co. v. Lord Hastings, 1900 AC 260 : (1900-03) All ER Rep 199 (HL).

45. SETTLEMENT DEED Where the settlement deed executed by the father was required to be written and was in writing, parol evidence to substantiate any subsequent arrangement, having the effect of modifying the earlier written deed, could not be permitted. 8 8 S. Saktivel v. M. Venugopal Pillai, AIR 2000 SC 2633 (paras 5, 6 and 8).

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46. RECONVEYANCE DEED Whether a non-testamentary document in respect of immovable property is compulsorily registrable or not depends on the facts and circumstances and the terms of the document. No hard and fast rule can be laid down. The crucial test in each case is as to the nature of the document itself. If it does create a right, title or interest in itself, whether in the present or future it is compulsorily registrable under Section 17(1)(b) of the Registration Act . In the instant case, a bare reading of the agreement in dispute showed that it was a simple agreement to recovery property under certain conditions mentioned therein and, thus, was not compulsorily registrable. Under the circumstances, even provisions of section 92(4) of the Evidence Act are not applicable in such a case and therefore subsequent document varying the terms of reconveying deed would not be required to be registered. 9 9 Bhikkilal v. Shanti Devi, AIR 2008 Raj 128, 131 (para 9).

47. WHERE, SUCH CONTRACT, GRANT OR DISPOSITION OF PROPERTY IS BY LAW REQUIRED TO BE IN WRITING OR HAS BEEN REGISTERED [EXCEPTION] Where there is a registered sale, and a subsequent unregistered agreement stating that the vendee or his heirs will not alienate or dissipate or fritter away the land, it was held that no proof of the unregistered agreement is admissible under Section 92 and the sale can not be revoked and the bar of estoppel or waiver would not operate against the vendee. 10 10 Brahama Nand v. Roshani Devi, 1989 HP 11.

48. ANY CUSTOM OR USAGE PROVABLE [PROVISO (5)] "This proviso is based on the following Maxims: 2i )   Consuetudo loci est observanda (i.e. ) the custom of the place is to be observed. 1ii)   Magister rerum uses (i.e. ) use is the master of things (i.e. ) usage is a principal guide in practice. 1iii)   Optimus interpres rerum usus (i.e. ) usage is the best interpreter of things.

11

"The reception of evidence of usage is often not only justifiable in principle, but absolutely necessary; and without it, the intention of the parties would be often defeated......The rule, for admitting evidence of usage must be taken always with this qualification that the evidence proposed is not repugnant to or inconsistent with the written contract. It sought never to be allowed to vary or contradict the written instrument either expressly or by implication"..... "where the incident sought to be annexed to a contract is of such a nature" that the parties are not themselves competent to introduce it by express stipulation, such an incident cannot be annexed by the tacit stipulation arising from usage." 12 Parol evidence of usage or custom is admissible in aid of the construction of a written instrument. Such evidence is received for explaining or filling up terms used in commercial contracts, policies of insurance, negotiable instruments, and other writings of a similar kind,--when the language, though well-understood by the parties, and by all who have to act upon it in matters of business, would often appear to the common reader scarcely intelligible, and sometimes almost a foreign language. The terms used in these instruments are to be interpreted according to the recognised practice and usage with reference to which the parties are supposed to have acted; and the sense of the words, so interpreted, may be taken to be the appropriate and true sense intended by the parties. 13 "When the words of a document are used in relation to places or people where, or amongst whom, established usages prevail, proof of such usages may be given to construe the document, although the words themselves are unambiguous 14 and where particular terms have a double meaning, the

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one common and the other local or peculiar, similar evidence may be given to explain such terms, although their ordinary meaning might also apply. Evidence of usage, however, cannot be given to vary the statutory meaning of words 15 nor where it is expressly excluded by, or is inconsistent with, the terms of the document; nor where there is nothing in the context or surrounding circumstances pointing to a peculiar use of the words. 16 .....Such usages, when not judicially noticed, are provable by witnesses; but they raise an inference for the jury merely, and not a conclusion of law that the parties used the words in the conventional sense." 17 A trade usage is a usage so general and well known and properly understood in fact with reference to the business that the parties are presumed to have their contract with tacit reference to it and to have intended to be governed by it the same way and to the same extent as other like persons in like cases. 18 The Supreme Court in Mahindra and Mahindra v. Union of India 19 held "It is true that a clause in an agreement may embody a trade practice and such a trade practice may have the act ual or probable effect of restricting or destroying competition and hence they constitute a restrictive trade practice. To know the effect of such clause oral evidence can be adduced "to determine whether a particular trade practice set out in the agreement has or may have the effect of preventing, distorting or restricting competitions so as to constitute "a restrictive trade practice" under the Monopolies and Restrictive Trade Practice Act 1969 and that Sections 91 and 92 are no bar as it would not amount to contradicting varying, adding to, or subtracting from the terms of the document." The Supreme Court held that the decision in Hindustan Liver Ltd., Bombay v. Monopolies and Restrictive Trade Practices Commission 20 is not good law. Where there is a custom and practice in trade, of supplying free meals to passengers in air travel, it was held that it is not repugnant to or inconsistent with the printed terms and the custom and practice is admissible in evidence. 21 Recently it was decided by a consumer forum that supply of dinner to Railway passengers included supply of drinking water also. In respect of sale of liquid molasses, by "F.O.R." or "Ready Delivery" contracts, evidence is admissible to prove usage as to who should procure tank wagons at the siding for pumping the liquid. 22 Interest, though not expressly stipulated in a written contract, may be claimed on the ground of usage. 23

Mercantile usage need not be ancient. It is sufficient if it is so well known and acquiesced in that it may be reasonably presumed to have been an ingredient tacitly included in the contract. 24 In K.M.P.R.N.M. Firm v. Somasundara 25 ; it was held that according to custom, piece-goods merchants in godown street Madras in respect of sales, known as " Thavanni " charge 3/4% per month after 60 days. It was held that if the custom pleaded is well known locally and to the parties to it, it may be presumed to have been an ingredient tacitly imported by the parties into the contract. In the case of custom or usage it is permissible to import into contract such custom even though a party to the contract was not actually aware of the custom or usage. But in the case of a practice, it must be shown that it was known to the person whom it is sought to bind and that he tacitly agreed to its being a term of the contract. 26 11 B EST ON E VIDENCE (9th Edn., Section 228, P. 211). 12 B EST ON E VIDENCE (9th Edn., Section 228, P. 212). 13 P HILIPS , 407. 14 Dashwood v. Magniac, (1891) 3 Ch 306 (usage of a district admissible to show that trees are included in the term "timber" in a particular county); Mysers v. Sarl, 3 E&E 306 (Building trade usage admitted to show "weekly accounts" meant accounts of day work only, and not of measured work). 15 Smith v. Wilson, (1832) 3B & Ad 728; O' Donnell v. O'Donnell, 13 L.R. Ir. 226. 16 Holt v. Collyer, (1881) 16 Ch 718; Malcomson v. Morton , 11 Ir.L. R. 230; Abbott v. Bates, 33 LT 491.

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17 P HIPSON ON E VIDENCE 15th Edn. (2000), paras 43-59, Page 1241. 18 Ram Deo v. Firm Birdhichand Sumermal, (1970) 20 Raj 427. 19 AIR 1979 SC 798. 20 AIR 1977 SC 1285. 21 (1977) 2 Cal LJ 108. 22 Bejoy Krishna v. N.B. Sugar Mills Co., 1949 Cal 490. 23 Juggo Mohan Ghoss v. Kaisreechaud, 9 MIA 256. 24 Juggamohan v. Manikchand, 7 MIA 263(PC) . 25 AIR 1925 Mad 161 : 48 Mad 275. 26 Mana Vikram v. Rama Pathar, ILR 20 Mad 275.

49. ANNEXING OF SUCH INCIDENT IS NOT REPUGNANT OR INCONSISTENT WITH THE EXPRESS TERMS OF THE CONTRACT But the rule for admitting evidence of usage must be taken always with this qualification, that the evidence proposed is not repugnant to, or inconsistent with, the written contract. It ought never to be allowed to vary or contradict the written instrument, either expressly or by implication... where the incident sought to be annexed to a contract is unreasonable or illegal, it cannot be annexed to the contract by evidence of usage". 27 Evidence of custom in respect of tenancies is inadmissible where the custom alleged is contrary to the terms of the written contract. Where there is an express term in the kabuliat, that the tenant had no right of sale, gift or transfer in any manner, no evidence of custom on the question of transferability and heritability, is admissible. 28 The inconsistency may be evinced by the express terms of the written instrument or by implication therefrom. 29 Oral evidence of a custom that when the due date of performance of a contract falls on a holiday, the contract may be performed on the next working day, is admissible. 30 27 B EST , 12 Edn., S. 228, p. 213; Lu Gale v. Maung Mo, (1904) 2 LBR 268; K.M.P.R.N.M. Firm v. Somasundara Chetty & Co., AIR 1925 Mad 161 : (1924) 48 Mad 275. 28 Md. Ayesuddin v. Prodyot, AIR 1921 Cal 741; see also Holmes Wilson & Co. v. Bata Kristo De, ILR 54 Cal 549 : AIR 1927 Cal 688; Chandanmull v. National Bank of India, 51 Cal 43 : 1924 Cal 552Morris v. Panchananda, (1870) 5 MHC 135. 29 Smith v. Ludna Dhalla Damodar, (1892) 17 Bom 129. 30 Kasiram Pania v. Hurnundroy Roy, AIR 1921 Cal 809.

50. ANY FACT SHOWING HOW THE LANGUAGE OF A DOCUMENT IS RELATED TO EXISTING FACTS [PROVISO (6)] The proviso is a substantive provision laying down the law relating to the admissibility of extrinsic evidence as an aid to the construction of a document in cases in which it is necessary to find out how the document is related to the existing facts. 31 The Bombay High Court observed "that is one of the provisos which is the despair of the Judge and the joy of the lawyers. Where a document itself is a perfectly plain, straight forward document, no extrinsic evidence is required to show in what manner the language of the document is related to

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existing facts. There may be cases where such extrinsic evidence is required, and it will therefore be admitted. But it can only be in such cases where the terms of the documents themselves require explanation, evidence can be led within the restrictions laid down by proviso". 32 Proviso (6) to Section 92 is not an exception to the rule laid down in the main part of the section. it is a substantive provision itself laying down the law relating to the admissibility of extrinsic evidence as an aid to the construction of a document in cases in which it is necessary to find out how the document is related to existing facts. Proviso (6) to Section 92 does not take away or qualify anything that would, but for that proviso, have fallen within the substantive portion of that section unlike the main portion of Section 92. Proviso (6) is not restricted to extrinsic evidence of an oral agreement or statement. 33 Under Section 92, proviso (6) extrinsic evidence is admissible for the purpose of showing the circumstances in which the document came to be prepared and executed with a view to arrive at the true effect of the transaction to which the document relates. 34 Where meaning is doubtful, the surrounding circumstances can be looked into as to the creation of the document and subject matter to which it was designed and intended to apply. 35 Oral evidence regarding the intention of the parties is only excluded. But the surrounding circumstances and conduct of parties can be shown in what manner the language was used relating to the existing facts and to arrive at the true meaning of the document. 36 For considering whether a specification of a prior invention describes the invention claimed by the subsequent inventor is a question of construction and parol evidence is only admissible for the purpose of explaining words or symbols of art and other alike technical matters, and of informing the court of relevant surrounding circumstances. 37 31 Belapur Co. v. Maharashtra Farming Corpn., (1968) 74 Bom LR 246 : AIR 1969 Bom 231; See also P.B. Bhat v. V.R. Thakkar, (1971) 74 Bom LR 509 : AIR 1972 Bom 365. 32 Ganpatrao Appaji v. Bapu Thakaram, 1920 Bom 143. 33 Belapur & Co. Ltd. v. Maharashtra State Farming Corporation, AIR 1969 Bom 231. 34 Bhat v. Y.R. Thakkar, 1972 Bom 365 PB; Buddhu Shaw v. Mongal Shaw, (1966) 2 Cal 641. 35 Sobhadroyamma v. Yenkatapati Raju, AIR 1924 PC 162. 36 Husson Ally v. Tribhowandas, AIR 1921 PC 40; Baijnath v. Haji Yally Mahomed, AIR 1925 PC 75; Narasingherji v. Parthasaradhi, AIR 1924 PC 226. 37 Canadian General Electric Co. Ltd. v. Fada Radio Ltd., AIR 1930 PC 1.

51. INTENTION OF PARTIES Extrinsic evidence to determine the effect of an instrument is permissible where there remains a doubt as to its true meaning. Evidence of the act s done under it is a guide to the intention of the parties in such a case and particularly when acts are done shortly after the date of the instrument. 38 Objection that the proceedings for possession by the landlord after the expiry of the tenancy period were camouflage and the real intention was to create a general tenancy, could not be raised after the expiry of the period of tenancy. 39 The rule of construction in this proviso enables the Court to examine the facts and surrounding circumstances to which the language of the document may be related and is applicable when the words of the document taken by themselves are not so clear in their meaning and the Court cannot understand the true intent of an indenture, but only by the words of indenture. 40 The intention of the parties is to be gathered from the words used in the agreement. If the words are clear, there is very little that the court can do about it. 41 Intention of the parties must be ascertained from the language they have used, considered in the light of surrounding circumstances and object of the contract. 42

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Where preamble portion of power of attorney deed refers to the pending suit and under it power was conferred to continue those suits and apart from that a general power was conferred by the plaintiff on his agent to institute new suits, it could not therefore, be said that the deed conferred only specific powers and no power to institute suit pending or new suits has been conferred. 43 38 Abdulla Ahmad v. Animendra Kisser, AIR 1950 SC 15 : 1950 SCR 30; see also Becharbhai v. Khushalbhai, 1975 Guj 98; Madalsa Devi v. Mridula Chandra, AIR 1994 Pat 91 (paras 17 and 18); Hindu Public v. Rajdhani Puja Samithee, AIR 1999 SC 964 (para 19). 39 Sunil Puri v. Modi Spinning & Weaving Mills Company Ltd., AIR 1994 NOC 336(Del) : (1993) 50 DLT 257. 40 S.T. Industries, Surat v. Chief Controlling Revenue Authority (SB), AIR 1994 Guj 153 (paras 18-20). 41 M.P. Housing Board v. Progressive Writers and Publishers, (2009) 5 SCC 678, 692 (para 49). 42 Bank of India v. K. Mohandas, (2009) 5 SCC 313, 328 (para 28). 43 N.A.S. Ansari v. T. Ramalingam, AIR 2003 Mad 286, 289. On this point the High Court has discussed decisions of its own Court and that of the Apex Court.

52. ACT S AND CONDUCT OF PARTIES In the case of an ambiguous instrument, there is no reason why subsequent interpreting statement should be inadmissible. Extrinsic evidence to determine the effect of an instrument is permissible where there remains a doubt as to its true meaning and evidence of the acts done under it is a guide to the intention of the parties particularly, when act s are done shortly after the date of the instrument. When the terms of the document are ambiguous, the right of the parties may be determined by a reference to the subsequent statements or conduct of the parties. 44 Where the question was whether some properties attached in execution, were included in the trust deed, it was held that the ambiguity was latent and proviso (6) was applicable to know the conduct of the parties in construing the expression used in the deed. 45 44 The Godhra Electricity Co. Ltd. v. State of Gujarat, AIR 1975 SC 32; New Garage Ltd. v. Khuswant Singh, AIR 1952 Punj 82(DB) ; Abdulla Ahmed v. Animendra Kesser, AIR 1950 SC 15; B.N. Sinha v. Midnapore Zamindary Co., 1922 Cal 300. 45 Subramania Iyyar v. Rajan Rajeshwari Dorai, 40 Mad 1016; following Tulsi Pershad Singh v. Ramnarain Singh, ILR 12 Cal 117(PC) .

53. IS RELATED TO Where there was a misdescription of the officer who authorised to file a complaint, it was held that extraneous evidence was admissible under Section 95 and proviso (6) to Section 92, Evidence Act, to understand in which sense the language used in the complaint had been used. The language used in the complaint was plain in itself, but was unmeaning in reference to existing facts, there being no Municipal Board which was replaced by Nagar Maha Palika Board many months before. Evidence could, therefore, be admitted to understand in which sense the unmeaning words had been used, and extraneous evidence is admissible to prove that the complaint was made by a duly authorised person. 46

If the recitals in the document are indecisive and ambiguous, then only the courts will take into consideration surrounding circumstances and the conduct of parties in deciding the passing of title.

47

It is always open to show how the terms of a document are related to existing state of things, it is therefore always open to prove that the terms of a particular document are those given to a subcontractor though the word sub-contractor has not been used in the document. Oral evidence is such cases is not excluded. 48

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Where the language of a surety bond though plain in itself, is unmeaning with reference to the existing facts and circumstances, extraneous evidence is admissible to show the act ual intention of the parties thereto and as to contingencies contemplated by them while executing the bond. 49 In a Fire Insurance Policy-Description of building contained in policy was vague and not exhaustive, oral evidence by agent explaining intention of parties while filling proposal form neither contradicting, varying, adding to or subtracting from terms of policy is not excluded by Section 92. 50 The ruler of erstwhile Chamba State had by a deed, made an inam grant of certain land along with Namasi in favour of G and her son D. During regular settlement operation, the cultivable land granted under the deed was mutated in the ownership of D, but Namasi was not mutated in his name and it was recorded as owned by the State Government. And only the name of the forest was specified. Where the deed contained the words 'along with Namasi ' after the description of the cultivable lands, those words indicated that besides cultivable land. Namasi was also granted. Though the word ' namasi ' was vague and did not by itself lead to the inference that any area, in Namasidhar forest, was granted but that ambiguity about ' namasi ' was a latent one and extrinsic evidence was admissible, under proviso (6) of Section 92, for resolving the ambiguity and for showing that the word Namasi related to some existing state of things. 51 When the words of a written instrument are free from ambiguity and where external circumstances do not create any doubt or difficulty as to the proper application of the words, such instrument is always to be construed according to the strict plain common meaning of the words themselves and evidence de hors the instrument for the purpose of explaining it according to the surmises or alleged intention of the parties to the instrument is utterly inadmissible. The cases in which parol evidence when objected to is, apart from fraud or mistake, receivable to correct written instruments are cases, where, for example, the evidence supplements, but does not contradict, the terms of the deed; where the provisions of the deed leave the question doubtful whether merely a mortgage and not an out-and-out sale was intended or where the language sought to be explained in evidence is language in an ordinary conveyancing form not exhaustively accurate but without an actual misstatement of fact. 52 While construing a written contract, the court will be erring in approaching the question of what formed the subject matter of the negotiations which preceded the written contract between the parties, without first settling to what extent the contract was so ambiguous as to justify resort to evidence as to the negotiations. It was held that there was no ambiguity as to the meaning of the words 'works of a similar nature'. They clearly referred to work 'for the excavation of stone and construction thereof by means of machineries'. Such works being similar to the works which were the subject of the negotiations and there was no justification for excluding such works on the ground that the means of carrying out the works, though it was machinery, was machinery which was not discussed during the negotiations. Therefore, resort to oral evidence was not justified. 53 46 Nagar Mahapalika of Kanpur v. Sri Ram, AIR 1964 All 270(DB) : (1964) 1 CrLJ 626(All) . 47 Hara Bewa v. Banchanidhi Barik, AIR 1957 Ori 243(DB) . 48 Sukumar Banerjee v. Hiralal Chatterjee, AIR 1954 Cal 48 : 1954 CrLJ 13. 49 State v. Jati Ram, 1973 Cr LJ 1208(All) . 50 General Assurance Society Ltd. v. Mohd. Salim, AIR 1965 All 561(DB) . 51 Union of India v. Nand Kishore, AIR 1966 HP 54. 52 Tsang Chuen v. Li Po Kwai, AIR 1932 PC 255. 53 Joseph Darmanin v. Carmel Micallef, AIR 1946 PC 50.

54. THE EXISTING FACTS

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It is well settled that no evidence is admissible on a question of construction of a contract or grant, which must be based solely on the terms of the document which are clear and where there is no dispute as to how the contents of the document are related to existing facts. 54 When the terms of a document are clear, conduct of parties as to how they understood them is not admissible, as it is irrelevant. 55 Generally speaking, evidence of surrounding circumstance is admissible only where there is some ambiguity or doubt as to the meaning of the terms of documents. Under this proviso, the terms of an unambiguous document cannot be controlled by the conduct of the parties. 56 In construing a written instrument the plain meaning of the express words are to be adhered to irrespective of the question of the intention of the parties. 57 54 Radha Sundar Dutta v. Md. Jahadur Rahim, AIR 1959 SC 24; relying on Balkishan v. Legge, ILR 22 All 149(PC) ; Yenkateshwarlu & Co. v. B.Y.P. & Co., AIR 1969 AP 88; Ramdip Sharma v. Baldeo Singh, AIR 1977 Pat 234; Shaik Khasim Saheb v. Yasireddy Ramanadha Babu, AIR 1989 NOC 157(AP) . 55 G. Yalia Raja v. T. Yareed, AIR 1961 Ker 293; Union of India v. Kishorilal Gupta, AIR 1959 SC 1362; Surayya v. Bala Gangadhara, AIR 1948 PC 3; Kondiram v. Gundappa, 1955 Hyd 179; (case of sale deed) Maung Kyin v. Ma Shwe Law, AIR 1917 PC 207; relied on Baraboni Coal Concern v. Gokulanande, AIR 1934 PC 58; Gurubasappa v. Gurulingappa, AIR 1962 Mys 246; Bhagwat Rai v. Ramasi Rai, AIR 1952 Pat 431(DB) . 56 1968 Cur LJ 674. 57 Madanlal v. Ghasi Ram, ILR 30 Pat 613 : 1951 Pat 254(DB) .

55. IN WHAT MANNER THE LANGUAGE OF A DOCUMENT Where the operative part of the document is clear and free from ambiguity no oral evidence is admissible in ascertaining the intention of the parties. If the question is not what the parties may have intended but what is the meaning of the words which they have used, oral evidence is permissible. 58 Section 92 of the Evidence Act forbids the admission or consideration of evidence to prove the intentions of the party and the nature of the transaction will have to be decided "on a consideration of the contents of the documents themselves with such extrinsic evidence of the surrounding circumstances as may be required to show in what manner the language of the document is related to existing facts". 59 Sections 94 and 95, Evidence Act, define the sphere of operation of proviso (6) to Section 92 and it is manifest from these two sections that it is only in cases where the terms of the document leave the question in doubt, that resort can be had to proviso (6) to Section 92, Evidence Act . It cannot be postulated that the legislature intended to nullify, the object of Section 92 by enacting exceptions to that section. Exceptions or proviso to the section are not meant to render the section itself nugatory, when there is a latent ambiguity in a document and not when the language is plain with reference to existing facts, Section 92(6) would come into play. 60 Intention of parties has to be determined from document itself and not from surrounding circumstances. Inadequacy of price or payment of cost of stamp by executant cannot alter its nature.

61

The nature of a document is to be ascertained on a conspectus of the whole of it. It is not possible to gather the intention of the parties to a document by ignoring a part of it. The deposition of any party to a document at the trial is not at all relevant for the purpose of ascertaining the intention at the time of the execution of document. The intention is to be gathered 'from the language used when it is clear and unequivocal. 62 When the terms of an ancient grant are unambiguous, it is not open to the court to say that the document means something else than what it clearly says, merely because the parties have gone on for a long time so understanding it. In a case of ambiguity, however, the court can uphold, the construction of deed which justifies a long usage; but where there is no ambiguity, the court will not accept an erroneous interpretation though consistent with usage, so as to sanction a manifest breach of trust. 63

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58 Saradarmal Ammal v. Natesa Mudaliar, (1972) 1 Mad LJ 244, following Maharaj Mahindra Chandra Nandi v. Durga Prasad Singh, 32 MLJ 559. 59 K.K. Nambiar v. P. Kusup, AIR 1970 Ker 16(FB) ; Sukumar Bysack v. Sushil Kanta Banerjee, AIR 1972 Cal 207; Mamnadissa v. Asyakutty Umma, (1967) 2 Ker 282; Saradambal Ammal v. Netesa Mudaliar, (1972) 1 MLJ 244; Gurubari Lenuka v. Dulani Thakurani, AIR 1971 Ori 147. 60 Firm Bolumal v. Venkatachelapathi Rao, AIR 1959 AP 612 : ILR (1959) AP 929 Letters patent Appeal No. 218/1954 dt. 28-1-59 against judgement and decree of the High Court in Second Appeal No. 2342/50 dt. 7-5-1954 J. K RISHNA S WAMI N AYUDU ; see also Ram Narain v. Manki Singh, AIR 1954 Pat 562; Darshan Dass v. Ganga Bux, AIR 1962 Pat 53; Chandrasekhar v. Mural Gope, AIR 1957 Pat 673; Basant Devi v. Official Receiver, AIR 1936 Lah 508; Shambhu Dutt v. Balwant Lal, (1968) 70 Punj LR 790. 61 Darshan Dass v. Ganga Bux, AIR 1962 Pat 53(DB) . 62 Hiralal Seal v. Sankarlal Sharma, (1969) 2 Cal 503. 63 Somar Puri v. Shyam Narain Gir, AIR 1954 Pat 586.

56. SALE AND MORTGAGE Where the question is whether the sale deed can be treated as a mortgage by reason of incorporation of a condition for repurchase the property, the intention of the parties is to be gathered from the language of the deed in the light of surrounding circumstances. If the language is ambiguous, intention can be gathered from the contents of the deed with such extrinsic evidence permissible u/proviso (6) of Section 92. Oral evidence of intention though not admissible, can be permitted to explain or even to contradict the recitals as distinguished from the terms of the document. Evidence of contemporaneous conduct is always admissible as a surrounding circumstance. But evidence of subsequent conduct of the parties is inadmissible. 64 It is not permissible to consider the surrounding circumstances with a view to holding that a document which on the face of it is a sale deed is intended to operate as mortgage. There must be some limit to the suggestion that the surrounding circumstances can always be scrutinized so as to enable the court to alter or change the nature of a document to something different from what it purports to be. Otherwise, there can be no certainty as to the proper construction to be placed on a document which to all appearances is unambiguous. 65 Extrinsic evidence is admissible for purpose of showing that a document, which purports to be, and, on the face of it, a deed of sale, is in reality a deed of gift. 66 Where the terms in the bond clearly indicate that the transaction was that of a usufructuary mortgage and not an absolute sale, oral evidence of subsequent events would not be admissible to prove the contrary, and proviso (6) would not apply. 67 In a sale deed the value of the land is found to be far more than the consideration mentioned therein, the vendee does not take possession and allows the vendor to remain in possession, and the vendor continues to pay the revenue and this state of affairs continues for a long time, evidence of these existing facts and the manner in which the language was adopted in the document in respect thereto will certainly have to be allowed. All these facts will really act as an estoppel on the vendee from claiming that the sale deed really conveyed title to him and was nor a mortgage. 68 It was held, that the court was right in applying proviso (6) to Section 92 read with Sections 94 and 95 of the Evidence Act in allowing the existing facts to be proved by the plaintiff in order to show that the suit document was really only a mortgage and not sale deed. 69 64 Bhaskar Waman Joshi v. Shrinarayan Rambilas Agarwal, AIR 1960 SC 301; P.L. Bapuswami v. N. Pattay Gounder, AIR 1966 SC 902 : (1966) 2 SCR 918; Chunchun Jha v. Ebadat Ali, AIR 1954 SC 345; Dhanarajagirji v. Pasthasaradhi, AIR 1924 PC 226; Jhanda v. Wahiduddin, AIR 1916 PC 49; Bishan Lal v. Banwari Lal, AIR 1937 All 724; Bishambar Nath v. Muhammed Ubaidullah Khan, 45 All 581; see also Rajat Chandra v. Dhani Ram, 1965 Assam 90. 65 Martand v. Amritrao, (1925) 27 Bom LR 951, ILR 49 Bom 662 : AIR 1925 Bom 501. 66 Hanif-un-nisa v. Fiaz-un-nisa, (1911) 13 Bom LR 391, ILR 39 IA 85, 33 All 340. See Maung Kyin v. Ma Shwe La, (1911) 38 IA 146, oral evidence is admissible to show that a mortgage was subsequently converted into a sale, Badhawa Mal v. Hira, (883) PR No. 30 of 1884 (Civil).

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67 Chandra Sekhar Patrhak v. Mural Gope, AIR 1957 Pat 673(DB) ; Rambujhawan Prasad Singh v. Jugal Singh, AIR 1957 Pat 126; Bhagwat Rai v. Ramasis Rai, AIR 1952 Pat 431; Martand v. Amritrao, AIR 1925 Bom 501; See Contra Balumal v. Venkata Chelapathi, AIR 1955 Mad 78; Kaluram v. Gajasa, AIR 1928 Nag 182; Nipamacha Singh v. Ibohal Sarma, AIR 1965 Mani 31. 68 Thongam Ningol Mema v. Thongam Bokul Singh, AIR 1962 Mani 45. 69 Nipamacha Singh v. Ibohal Sarma, AIR 1965 Mani 31; dissenting from Firm Bolumal Dharmdas Firm v. Gollapudi Venkata Chelapathi Rao, AIR 1959 AP 612; In L.P. Appeal against Balumal v. Venkata Chelapathi Rao, AIR 1955 Mad 78; relying on Thongam Ningol Mema v. Thongam Bokul Singh, AIR 1962 Mani 45; Narsingerji Gyanagerji v. Parthasaradhi Rayanim Garu, AIR 1924 PC 226; Firm Balumal Dharmdas v. Gollapudi Venkata Chelapathi Rao, AIR 1955 Mad 78; see also Kaniyan-kandiyil Kunhiraman Nambiar v. Pairu Kurup of Tarwad, AIR 1970 Ker 16(FB) .

57. LEASE The proposition of law is well-settled that if the recitals in the lease itself and the terms thereof make out non-agricultural purposes and are free from all ambiguity, the only guide for determination of the nature of the lease would be the lease deed itself. But if the terms are not decisive and free from ambiguity, extraneous evidence will be admissible for the purpose of determining the nature of the lease. 70 When there was oral and documentary evidence, not proving the tenancy chit executed, it could be challenged under Section 92(6) of the Evidence Act. 71 70 Orient Paper Mills Ltd. v. Sitaram Agarwala, AIR 1957 Ori 256(DB) : ILR 1957 Cut 509. 71 Balachandran v. Gopalan, AIR 2001 Ker 337 (paras 15 and 17).

58. WILLS Plain and natural meaning to the words used in the wills, has to be given.

72

When two wills were executed on two different dates and when there is ambiguity of language in the later will as to whether it was in substitution of or in addition to the earlier will, extrinsic evidence can be admitted to clear up that ambiguity and to certain testator's intention. 73 72 Bolo v. Koklan, AIR 1930 PC 270. 73 Rajalu Naidu v. Kothandarama Naidu, AIR 1965 Ker 122 : (1964) 1 Ker 532.

59. CONSTRUCTION OF WILLS In Soorjeemoney v. Denobudhoo 74 it was observed: "The Hindu Law, no less than the English Law points to the intention as the element by which we are to be guided in determining the effect of a testamentary disposition; nor, so far as we are aware, is there any difference between the one law and the other, as to the materials from which the intention is to be collected. Primarily, the words of the will are to be considered. They convey the expression of the testator's wishes; but the meaning to be attached to them may be affected by surrounding circumstances, and where this is the case, those circumstances, no doubt, must be regarded. Among the circumstances thus to be regarded, is the law of the country under which the will is made, and its dispositions are to be carried out. If that law has attached to particular words a particular meaning, or to a particular disposition a particular effect, it must be assumed that the testator, in the dispositions which he has made, had regard to that meaning or to the effect, unless the language of the will or the surrounding circumstances displace that assumption." 75 The circumstances prevailing at the time of execution of the will can be taken in deciding the question as to the daughter's claim to an absolute estate. 76

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It is not improper to take into consideration the ordinary notions and wishes of a Hindu in respect of devolution of property. 77 The court should put itself into the testator's arm chair and give effect to the intention by taking into consideration the surrounding circumstances the language used, his outlook and manners etc., factors. 78 All parts of a will are to be construed as a whole, and should try to reconcile one with the other, if there is any conflict, and if it is not possible to reconcile, the latter part would prevail over the earlier part. That should be done after taking all the surrounding circumstances to ascertain the intention of the testator. 79 Court has no power to give effect to a hypothetical intention by supplying lacunae in the will, and thereby making practically a new will for the testator. 80 This section makes evidence as to the intention of a document contrary to its express language inadmissible; but its proviso (6) lets in evidence to show in what manner the disputed transaction or the language of the document was related to existing facts. 81 Sections 93- 97 partly develop and partly restrict the principle laid down by this proviso. 74 6 MIA 526. 75 See also Nathu Ramu v. Gangabai, AIR 1938 PC 228; Chunil Lal v. Bai Samarath, ILR 38 Bom 399(PC) : AIR 1914 PC 60; Md. Shamsool v. Sewkram, 11 Bom LR 226(PC) . 76 Joydurga Dasi v. Saroj Ranjan, AIR 1929 PC 214. 77 Md. Shamsool v. Sewkram, 11 Bom LR 226(PC) . 78 Rajendra v. Gopal, AIR 1930 PC 242. 79 Rameshwar Bakhsh v. Balraj Kuar, AIR 1935 PC 187. 80 Gnanambal v. Raju, AIR 1950 SC 103; Ramautar Singh v. Ram Sundari Kur, AIR 1959 Pat 585; Parvabati v. Sarojini , (1931-32) 36 Cal WN 1015. 81 Manindra Nath Bose v. Narendra Krishna Mitra, (1956) 1 Cal 59.

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Ratanlal & Dhirajlal: Law of Evidence, Updated 23rd Edition/THE INDIAN EVIDENCE ACT (ACT 1 OF 1872)/PART II ON PROOF/CHAPTER VI OF THE EXCLUSION OF ORAL BY DOCUMENTARY EVIDENCE/S. 93.

CHAPTER VI OF THE EXCLUSION OF ORAL BY DOCUMENTARY EVIDENCE S. 93. Exclusion of evidence to explain or amend ambiguous document. When the language used in a document is, on its face, ambiguous or defective, evidence may not be given of facts which would show its meaning or supply its defects. ILLUSTRATION 4a )   A agrees, in writing, to sell a horse to B for "Rs. 1,000 or Rs. 1,500." Evidence cannot be given to show which price was to be given. 4b )   A deed contains blanks. Evidence cannot be given of facts which would show how they were meant to be filled.

1. PRINCIPLE AND SCOPE Sections 93 to 98 deal with rules for construction of documents with the aid of extrinsic evidence. Sections 91 and 92 define the cases in which documents are exclusive evidence of the transactions which they embody. Sections 93- 99 deal with the interpretation of documents by oral evidence. Where the language employed in a document is ambiguous, the question of admissibility or otherwise of extraneous evidence is regulated by the provisions contained in Section 93 and Sections 95 to 98. 82

Under this section no evidence is admissible to show the meaning or to supply the defects in a document when the language used is, on its face, ambiguous or defective. There are two sorts of ambiguities of words-the one is ambiguitas patens and other latens . Patens is that which appears to be ambiguous upon the deed or instrument; latens is that which seems certain and without ambiguity, for anything that appears upon the deed or instrument; but there is some collateral matter out of the deed that breeds the ambiguity. 83 A good test of the difference is to put the instrument into the hands of an ordinary intelligent educated person. If, on perusal, he sees no ambiguity, but there is nevertheless an uncertainty as to its application, the ambiguity is latent; if he detects the ambiguity from merely reading the instrument it is patent. Thus, in illustration (b ), the blanks would be patent ambiguities and they could not be filled in by parol testimony as to the intention of the parties, etc. In the illustration to S. 95 no one could detect any ambiguity from merely reading the instrument. The ambiguity does not consist in the language, but is introduced by extrinsic circumstances. 84 This section deals with patent ambiguities. If the language of a deed is, on its face, ambiguous or defective, no evidence can be given to make it certain. 85 S TEPHEN in his digest (Art. 91) states, "If the words of a document are so defective or ambiguous as to be unmeaning, no evidence can be given to show what the author of the document intended to say."

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N ORTON on Evidence (p. 279-280) quotes the following observation of S TARKIE which runs: "By patent-ambiguity, 'must' be understood an ambiguity inherent in the words and incapable of being dispelled, either by any legal rules of construction applied to the instrument itself, or by evidence showing that terms, in themselves unmeaning or unintelligible, are capable of receiving a known conventional meaning. The great principle on which the rule is founded is that the intention of parties should be construed, not by vague evidence of their intention, independently of the expressions which they have thought fit to use, but by the expressions themselves. How, those expressions which are incapable of any legal construction and interpretation by the rules of art, are either so because they are in themselves unintelligible, or because being intelligible they exhibit a plain and obvious uncertainty. In the first instance, the case admits of two varieties; the terms though at first sight intelligible, may yet be capable of having a meaning annexed to them by extrinsic evidence just as if they were written in a foreign language, as when mercantile terms are used, which amongst mercantile men have a distinct and definite meaning, although others do not comprehend them; the term used may, on the other hand, be capable of no distinct and definite interpretation. Now it is evident that to give effect to an instrument, the terms of which though apparently ambiguous are capable of having a distinct and definite meaning annexed to them, is no violation of the general principle, for in such a case effect is given, not to any loose conjecture as to the intent and meaning of the party, but to the expressed meaning and that, on the other hand where either the terms used are incapable of any certain and definite meaning, or, being in themselves intelligible, exhibit a plain and obvious uncertainty and are equally capable of different applications, to give an effect to them by extrinsic evidence as to the intention of the party, would be to make the supposed intention operate independently of the definite expression of such intention. By patent ambiguity, therefore, must be understood an inherent ambiguity, which cannot be removed either by the ordinary rule of legal constructions, or by the application of extrinsic and explanatory evidence, showing the expressions prima facie untelligible, are yet capable of conveying a certain and definite meaning." W IGRAM in his books on Extrinsic Evidence (2nd Ed., p.130) observed, "A written instrument is not ambiguous because an ignorant and uninformed person is unable to interpret it. It is ambiguous only if found to be of uncertain meaning when persons of competent skill and information are unable to do so. Words cannot be ambiguous because they are unintelligible to a man who cannot read, nor can they be ambiguous merely because the Court which is called upon to explain them may be ignorant of a particular fact, art, or science, which was familiar to the person who used the words and a knowledge of which is therefore necessary to a right understanding of the words he has used. If this be not a just conclusion, it must follow that the question, whether a will is ambiguous, might be dependent, not upon the propriety of the language, the testator has used, but upon the degree of knowledge, general or even local, which a particular judge might happen to possess; may, the technical precision and accuracy of a scientific man might occasion his intestacy a proposition too absurd for an argument" ... (W IGRAM -E XTRINSIC Evidence 2nd Edn. p. 130). W IGRAM further says as to the inaccuracy of expression and ambiguity as follows "A distinction must be taken between inaccuracy and ambiguity of language. Language may be inaccurate without being ambiguous and it may be ambiguous although perfectly accurate. If for instance, a testator, having one leased whole house in a given place, and another house, were to devise his free hold house there to A.B, the description, though inaccurate would occasion no ambiguity. If however, a testator were to devise an estate to J OHN B AKER , of Dale, the son of Thomas, and there were two persons to whom the entire description accurately applied, this description, though accurate would be ambiguous. It is obvious, therefore, that the whole of that class of cases in which an inaccurate description is found to be sufficient, merely by the rejection of words of surplusage are cases in which no ambiguity really exists. The meaning is certain, notwithstanding the inaccuracy of the testator's language." "Latent ambiguities are of two kinds. First where the description of the devisee or the property devised is clear upon the face of the will, but it turns out that there is more than one estate or person to which the description applies; and second where the devise or property devised is imperfectly, or in some respects, erroneously described, so as to leave it doubtful what person or property is meant." 86

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According to Section 100 of this Act, Sections 91 to 99 covered by Chap. VI in this Act shall not affect any of the provisions of the Indian Succession Act (X of 1865) (which was later replaced by the Indian Succession Act 39 of 1925) as to the construction of wills.Sections 74 to 111 of Act 39 of 1925 provide rules of construction of wills. Even in Act 39 of 1925, Section 81 states that where there is ambiguity or deficiency on the face of a will, no extrinsic evidence, as to the intentions of the testator shall be admitted. When the name of a legatee is left blank, extraneous evidence was held not admissible to show who was intended. 87 When a bequest was made in favour of the son of LNG, no evidence is admissible who was meant. The Supreme Court observed that Section 93 is clear on the point that if on a fair construction the condition mentioned in the document is held to be vague or uncertain, no evidence would be admitted to remove the vagueness or uncertainty. It is the language of the document alone that will decide the question. It would not be open to the parties to the court to attempt to remove the defect of vagueness or uncertainty by relying upon any extrinsic evidence. 88 82 Belapur Co. Ltd. v. Maharashtra State Farming Corporation, AIR 1969 Bom 231. 83 B EST , 12th Edn., 226, p. 211. 84 N ORTON , S. 633, pp. 351, 352. 85 Deojit v. Pitambar, (1876) 1 All 275. 86 Johu Patch v. White, 117 US 210. 87 Bylis v. Attorney General, 2 Atk 239. 88 Keshaulal Lallubhai Patel v. Lalbhai T. Mills Ltd., AIR 1958 SC 512.

2. GENERAL PRINCIPLES OF INTERPRETATION OF DOCUMENTS The duty of the court is always interpretation to find out not what really was the intention of the parties, as distinguished from what mere words expressed, but merely to find out the meaning of the words used by them. 89 L ORD A TKIN observed "When the meaning of the words is plain it is not the duty of the courts to busy themselves with supposed intention." 90 When ordinary or commonly used words are used they should be given their ordinary meaning. In the construction of a deed, the question is not what the parties may have intended, as the intention of the parties is not admissible, but what is the meaning of the words they have used. 91 The Supreme Court held that in the first place intention must be gathered from the document itself; that if the words are express and clear, effect must be given to them and any extraneous enquiry into what was thought or intended is ruled out. 1 The general principles may be summarised as follows.-- Where the document is plain and unambiguous, one has to read the words in their ordinary and grammatical meaning unless it leads to an absurdity and is repugnant to the intention of the parties as can be gathered from the other parts of the document. 2 Subsequent conduct of parties would be an irrelevant consideration, where the words are clear or the question is purely one of construction of the deed. 3 However, it is open to see what preceded the execution of the document, when the meaning of the words is not clear. 4 When the question of interpretation is involved, it would not be permissible for any court to call upon a witness to explain the language of the document unless the witness is an expert within the meaning of the Evidence Act, as it is the duty of the Court to interpret. 5

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Extrinsic evidence of every material fact which will enable the Court to ascertain the nature and qualities of the subject-matter of the instrument, or, in other words, to identify the person and things to which the instrument refers, is admissible (1). Thus, where there is a written agreement to deliver a quantity of grain at a particular time, parol evidence is admissible under certain limitations to show what kind of grain the contracting parties had in their contemplation at the time the contract was made (2). 6 Normally extrinsic evidence is not admissible to explain the patent ambiguity because the court is not expected to make instruments but only to interpret them. The Allahabad High Court held that Section 93 does not affect the power of the court to fill in the blanks or omissions by applying the ordinary rules of construction of documents, though extrinsic evidence is not admissible. 7 Where the question is as to the meaning of the words in a document, evidence is admissible to show in what peculiar sense a particular word was used, and extrinsic evidence including the evidence of subsequent conduct of the parties to determine the intention of the parties and the effect of the document is admissible. 8 Where Khasra numbers were not given in the sale deed due to inadvertence and later a rectification deed was executed it was held that evidence of the later deed was not extraneous evidence as contemplated by Section 93 and it was admissible. 9 89 Doe Dem, Gwillim v. Gwillim, (1833) 5 B & Ad. 122, 129. 90 Narayana Swami v. R, AIR 1939 PC 47. 91 Manindra v. Durga, 1917 PC 23. 1 Chunchun Jha v. Ebadat Ali, AIR 1954 SC 345. 2 Khan Gul v. Lakha Singh, AIR 1928 Lah 609(FB) ; Ramprashad Sahu v. Basantia, AIR 1925 Pat 729. 3 Baraboni Concern Ltd. v. Gokulananda, AIR 1934 PC 58; Rustomji v. Dhairyawan, AIR 1930 PC 165. 4 Secretary of State v. Abdul Rahim, 1928 Mad 1246. 5 R. v. Nathalal, AIR 1939 Bom 339. 6 Valla Hataji v. Sidoji Kondaji, (1868) 5 BHC 87(ACJ) ; Ibid. 7 U.P. Government v. Lala Nanhoo, 1960 All 420. 8 State v. Bundi Electric Supply Co., 1970 Raj 36. 9 Brij Lal v. Kartar Kaur, AIR 1988 P&H 88.

3. CASES OF PATENT AMBIGUITY Where a document showed acknowledgement of debt and also the mode of repayment in annual installments of Rs. 500/- and over, it was held that the mode of payment was void for uncertainty but as that clause was severable from the clause acknowledging the debt, the document is to be considered as a receipt simpliciter without an agreement to pay and no oral evidence can be given under Section 93 as to mode of repayment. 10 Where a notice was sent purporting to cancel two powers of attorney, one special and one general, and when only "a power of attorney" was referred three times in the notice, but did not refer to any special or general power of attorney, it was held that it could not be deemed to have cancelled any of such powers when the two powers of attorney were different in nature and served two different purposes and under Section 93 evidence can not be given of the facts which would show its meaning or supply its defects. 11

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In the case of an arbitration clause in a contract either the word "Chief Engineer" or the "Additional Chief Engineer" was intended to be retained by striking of one of them. But both of them were retained in the particular clause . It was held that though by inadvertence or neglect, the parties had not struck out any one of the two from the standard clause it was absolutely necessary to give the clause a definite meaning; ambiguity was therefore patent and so void for uncertainty, unless the ambiguity could be cured by election. 12 10 Hiralal Seal v. Sankarlal Sharma, (1969) 2 Cal 503. 11 Harbans Singh v. Shanti Devi, (1977) 2 Del 649. 12 Kerorimal Adwani Seth v. Union of India, AIR 1959 Cal 430.

4. LATENT AMBIGUITY In the case of latent ambiguity it was held that the construction put on the document by the parties themselves is the one which may safely be adopted. 13 13 Abdulla Fazal v. Virji, AIR 1951 Kutch 42.

5. NO AMBIGUITY Before Section 93 of this Act could apply, it must be shown that there is patent ambiguity. Section 93 cannot possibly be a bar for showing how a challan filed along with an election petition is to be interpreted, when there is no ambiguity in the challan at all. 14 Where the terms of a bonus agreement, between the employer and the workers, are free from ambiguity, it was held that the evidence of the employer either to explain or to contradict the terms cannot be allowed. 15 14 Beli Ram v. Election Tribunal, AIR 1958 J&K 54. 15 Dalmia Cement Co. v. Industrial Tribunal, Madras, (1960) 1 Lab LJ 628(Mad) .

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Ratanlal & Dhirajlal: Law of Evidence, Updated 23rd Edition/THE INDIAN EVIDENCE ACT (ACT 1 OF 1872)/PART II ON PROOF/CHAPTER VI OF THE EXCLUSION OF ORAL BY DOCUMENTARY EVIDENCE/S. 94.

CHAPTER VI OF THE EXCLUSION OF ORAL BY DOCUMENTARY EVIDENCE S. 94. Exclusion of evidence against application of document to existing facts. When language used in a document is plain in itself, and when it applies accurately to existing facts, evidence may not be given to show that it was not meant to apply to such facts. ILLUSTRATION A sells to B , by deed, "my estate at Rampur containing 100 bighas." A has an estate at Rampur containing 100 bighas. Evidence may not be given of the fact that the estate meant to be sold was one situated at a different place and of a different size.

1. PRINCIPLE AND SCOPE This section says that when the language is plain in itself i.e. does not admit any ambiguity and applies to the existing facts, no evidence is permissible to show that it was not meant to apply to such facts. This section does not speak of any patent or latent ambiguity in any document. L ORD H ALSBURY observed "The words of a written instrument must be construed according to their natural meaning, and it appears to me that no amount of acting by the parties can alter or qualify words which are plain and unambiguous. So far as I am aware, no principle has ever been more universally or vigorously insisted upon than that written instruments, if they are plain and unambiguous, must be construed according to the plain and unambiguous language of the instrument itself." 16 The general rule is to give the words their natural meaning unless when applied to the subject-matter they result in an absurdity or such great inconvenience that the court concludes that the words would not have been used in their proper signification. 17 In re : Gale 18 the testator gave his property to an unmarried woman with whom he was living 'during her widowhood'. Her identity was clear but as she was unmarried she could not be the testatory widow after his death and the expression 'during her widowhood' was unmeaning and hence it was ignored and the bequest upheld. Where the language in its ordinary sense properly applies to the facts without any difficulty, evidence to show that it bears a different meaning will be rejected, as it contradicts the document. Section 94 will apply only when the execution of the document is admitted and no vitiating circumstance has been put forward against it. Oral evidence of the witnesses in the proceedings of the Board in a Court Martial case are admissible in evidence. 19 16 North Eastern Ry. Co. v. Hastings, 1900 AC 260. 17 Great Western Ry. v. Bristol Corporation, (1918) 87 LJ Ch 414.

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18 (1941) Ch 209. 19 General Court Martial v. Anitej Singh Dhaliwal, AIR 1998 SC 983 : 1998 Cr LJ 1402.

2. CONSTRUCTION OF BONDS The Supreme Court in Kamala Devi v. Takhatmal 20 held that Section 94 lays down a rule of interpretation of the language of a document when it is plain and applies accurately to existing facts; it says that evidence may not be given to show that it was not meant to apply to such facts. (Note:--the words "may be given" was used by the Supreme Court though in the section "may not be given" was used; it is obviously a mistake). The Supreme Court observed that when a court is asked to interpret a document, it looks at its language; if the language is clear and unambiguous and applies accurately to existing facts, it shall accept the ordinary meaning; sometimes when it is said that a court shall look into all the circumstances to find an author's intention, it is only for the purpose of finding out whether the words apply accurately to existing facts; but, if the words are clear in the context of the surrounding circumstances, the court cannot rely on them to attribute to the author an intention contrary to the plain meaning of the words used in the document; In construing the terms of a security bond, if the language is plain and applies to the existing facts and in which no ambiguity or inconsistency of the kind dealt with by Sections 95 to 98 exists, it is not permissible to rely on the surrounding circumstances under which the bond came to be executed. 21 Under this section evidence to show that common words, whose meaning is plain, not appearing from the context to have been used in a peculiar sense, have been in fact so used, is not admissible. 22 20 AIR 1964 SC 859. 21 Bhadu v. Ganpati, 1931 Nag 25. 22 S TEPHEN ' S Dig., Art. 91.

3. NATURAL MEANING HAS TO BE GIVEN TO THE WORDS The duty of the court is not to probe in depth to ascertain one's undisclosed intention, but only to take the ordinary and natural meaning of the words used. 23 If the words in a document are unambiguous and the difficulty is only grammatical, extrinsic evidence is not admissible. 24 Where the document shows that only 5 pies share in the Zamindari was mortgaged, oral evidence is not admissible to prove that the mortgagor intended to mortgage his entire Zamindari, when the deed is clear and unambiguous. 25 Where ' Sir lands' were sold extrinsic evidence cannot be allowed to show that what were intended to be sold were not ' Sir lands' but ' Sir rights.' 26 In P HIPSON on Evidence (15th Edn. (2000), Paras 43-46, page 1232) it is observed, "In the case of property, where proof has been given of a subject- matter satisfying all the terms of a written description, the maxim non accipi debent verba in demonstrationem falsam quae competunt in limitationem veram applies, and extrinsic evidence cannot be given to show that something more or less extensive was intended. 27 ..... This applies not only to descriptions in the deed itself but to those in a map or schedule referred to therein; 28 though it is otherwise where such map is clearly erroneous 29 , or on too small a scale to be effective 30 or where, though attached to the deed, it is not referred to therein. 31 A plan attached to a conveyance may rebut the presumption that would otherwise arise from the existence of a hedge and ditch on the boundary. 32 So, with regard to personal property; thus, where there is a specific bequest and proof of property correctly answering the description, evidence is not admissible to extend it to other property. 33 If a person, known to the testator, accurately fufils the words in a will, evidence cannot be given to show that such person was not intended. 34

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Children means legitimate children and any evidence de hors the instrument itself to show that the settlor must have meant to use ordinary words otherwise than in their usual meaning cannot be allowed. 35 In England, by the Family Law Reform Act 1969 any reference to the child of any person is construed as or as including a reference to the illegitimate child of that person. The Privy Council observed that it would not be permissible to allow evidence of subsequent conduct to show that it was not meant to apply to such facts. 36 Where the language is plain and unambiguous the intention of the parties has to be gathered from the language. 37 itself without taking the aid of surrounding circumstances. While the true construction of an obscurely framed document may be determined by reference to the conduct of the parties, no such procedure is admissible when the terms of the instrument are unambiguous, for no amount of acting by the parties can alter or qualify words which are plain and unambiguous. 38 If there is no ambiguity in a document, the mere fact that parties have act ed on an erroneous construction of an instrument furnishes in itself no reason why the Courts should not follow the general rule that an instrument should be construed according to its natural meaning in the light of the circumstances in which it was executed. 39 When the original Sanad in regard to an ancient grant was produced and no ambiguity was found, it was held that conduct of parties cannot be looked into in interpreting the Sanad . 40 When a document like a promissory note, having some value and sanctity is in evidence, it outweighs everything else on record. Hence, it is not the calibre of oral evidence but intrinsic evidence of the promissory note that is material. 41 In a libel case the Privy Council held that the plaintiff's witnesses can not be asked what they would mean by the words used, which were complained of, because it is a question for the court or the jury to decide; the witnesses can only depose that they understood the words as referring to the plaintiff. 42 23 Kamala Devi v. Takhatmal, AIR 1964 SC 589; Rahim Baksh v. Shajad, 19 CWN 1311. 24 North Eastern Ry. Co. v. Hastings, 1900 AC 260; Higgins v. Dawson, (1902) AC 1. 25 Uma Shanker v. Ram Agyan, AIR 1939 All 231; Gobind Behari v. Shujaad Mond. Khan, AIR 1938 All 364. 26 Dhanpatti v. Badri Singh, AIR 1935 All 729. 27 Horwood v. Griffith, 4 De G.M. & G. 700, 708; Hardwick v. Hardwick, LR 16 Eq 168, 175; Re : Seale, (1894) 1 Ch 316. 28 Lyle v. Richards, LR 1 H.L. 222; Barton v. Dawes, 10 CB 261; Llewellyn v. Jersey, 11 M&W 183; Boyle v. Mulholland, Ir. R. 10 C.L. 150. 29 Lyle v. Richards, ante; Re Boulter, 4 Ch. D. 241; post Rule III. 30 Taylor v. Parry, 1 Scott N. R. 576; St. Leonards v. Ashburner, 21 L.T. 595; Wigginton & Milner Ltd. v. Winster Engineering , (1978) 1 W.L. R. 1462; Scarfe v. Adams , (1981) 1 All E. R. 843 at 851; Mayer v. Hurr , (1985) 49 P&C. R. 56; Scott v. Martin , (1987) 1 W.L. R. 841. 31 Ibid; Wyse v. Leahy, Ir. R. 9 C.L. 384; Re : Otway, 13 Ir. Ch. 22, 233-234. 32 Fisher v. Winch, (1939) 1 K.B. 666; see also Rouse v. Gravelworks, (1940) 1 K.B. 489. 33 Horwood v. Griffith, 4 De GM & G 700, 708. 34 Sherrat v. Mountford, (1873) LR 8 Ch 928; Re Woodverton, 7 Ch D 197, 199. 35 Hooi Leong v. Khoo Hean Quee, 96 LJPC 94. 36 Baraboni Concern. v. Gokulananda, AIR 1934 PC 58. 37 Babu v. Sitaram, 3 Bom LR 768; Velappa v. Palani, 1915 MWN 325 : AIR 1915 Mad 1079.

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38 Ghellabhai Atmaram v. Nandubai, ILR (1896) 21B 335, 344. 39 Dhanpatti v. Badri Singh, AIR 1935 All 729 : 156 IC 53; Velappa Gounden v. Palani Gounden, 29 IC 201; President, Taluq Board, Peddapur v. Chilakamani Dharmacharlu Garu, 12 IC 146; Dhanpatti v. Badri Singh, AIR 1935 All 729 : 156 IC 53. 40 Somar Puri v. Shyam Narain Gir, AIR 1954 Pat 586. 41 A. Rangappa v. P. Krishnamurthy, 1996 AIHC 4488 (para 3) (Kant). 42 Advocate Co. Ltd. v. Arthur Leslic Abraham, AIR 1946 PC 13.

4. ADMISSIBILITY OF EXTRINSIC EVIDENCE Where there were two wills executed on two different dates and the later will was ambiguous on the face of it, as to whether it was in substitution or in addition to the earlier will, it was held that extrinsic evidence can be admitted to ascertain the testator's intentions. 43 Where in a lease agreement payment of interest on arrears of rent was stipulated but not its mode of payment, it was held that the collector was not prevented by Section 94 from deciding the mode and direct writ petition for the purpose was not maintainable. 44 A vendee filed a suit for declaration that he was the owner of Khasra No. 867 and that by mistake No. 855 was mentioned in the sale deed. In the sale deed it was mentioned that the vendors were in possession of No. 855 and put in possession of the vendees. It was held that Section 94 would not apply because the language in the sale deed did not apply to the existing facts, inasmuch as it was stated in the sale deed that the vendors were in possession of No. 855 and the vendee was put in possession, while as a matter of fact vendors were not in possession, though they were the owners thereof, of No. 855. 45 Section 92 proviso (6) states that any fact may be proved which shows in what manner the language of a document is related to the existing facts. Under Section 94 no evidence can be allowed to show that the language in the document was not meant to apply to facts to which it accurately applies. Thus the difference is clear. The main principle of Section 92 is to see that no evidence should be permitted for the purpose of contradicting, varying, adding to or subtracting from the terms of a contract, grant or other disposition of property or any matter required by law to be reduced to the form of a document. Sections 94 and 95 when read with the main principle laid down in Section 92 clearly suggest that Section 92 proviso (6) comes into play only when there is latent ambiguity in a document. 46 Where the sale deed showed a particular land having been sold to the plaintiff's father and the language used was plain and clear, it was held that evidence could not be allowed to show that the land sold was some other land. 47 Oral evidence cannot prevail over compromises entered into between the parties. 48 43 Rajalu Naidu v. Kothandarama Naidu, AIR 1965 Ker 122. 44 Tata Iron & Steel Co. Ltd. v. State of Bihar, AIR 1996 Pat 37 (paras 11 and 13). 45 1963 Cur LJ 156 (Punj). 46 Ram Narain Prasad Singh v. Manki Singh, AIR 1954 Pat 562; Bolumal Dharamdas Firm v. Venkatachalapethi Rao, AIR 1959 AP 612; Darshan Dass v. Ganga Bux, AIR 1962 Pat 53. 47 Basanta Kumar Prusty v. Krupasindhu Sahu, AIR 2008 (NOC) 181(Ori) . 48 Rajlingu Pentu Parkewar v. Sayamabai Rajlingu Parkewar, 2006 CrLJ 3710, 3711 (para 5) (Bom).

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Ratanlal & Dhirajlal: Law of Evidence, Updated 23rd Edition/THE INDIAN EVIDENCE ACT (ACT 1 OF 1872)/PART II ON PROOF/CHAPTER VI OF THE EXCLUSION OF ORAL BY DOCUMENTARY EVIDENCE/S. 95

CHAPTER VI OF THE EXCLUSION OF ORAL BY DOCUMENTARY EVIDENCE S. 95 Evidence as to document in, unmeaning reference to existing facts. When language used in a document is plain in itself, but is unmeaning in reference to existing facts, evidence may be given to show that it was used in a peculiar sense. ILLUSTRATION A sells to B , by deed, "my house in Calcutta". A had no house in Calcutta, but it appears that he has a house at Howrah, of which B had been in possession since the execution of the deed. These facts may be proved to show that the deed related to the house at Howrah. 1. PRINCIPLE AND SCOPE

This section and Sections 96 and 97 deal with documents which contain latent ambiguities. Where the language of a document is plain in itself but is unmeaning in reference to existing facts, evidence may be given to show that it was used in a peculiar sense. It is based upon the maxim falsa demonstratio non nocet (a false description does not vitiate the document). The illustration to this section shows that if A sells to B "my house in Calcutta", and if A has no house in Calcutta but has a house in Howrah, of which B has been in possession since the execution of the deed, these facts may be proved to show that the deed related to the house in Howrah. 49 Section 96 deals with a case where the language used might have been meant to apply to any one by several persons or things and could not have been meant to apply to more than one. Section 97 refers to a case where the language in the document applies partly to one set of existing facts and partly to another set of facts as explained by the illustration thereunder. Section 97 is a part of the rule in this section, and both the sections must be read together. The rule regulating the admission of extrinsic evidence in the latter of these classes, i.e., cases falling within Section 97, is merely in extension and application of the rule governing the admission of extrinsic evidence in the former class of cases, i.e., cases falling within Section 95. 50 Section 95 of the Evidence Act "formulates the general rule with regard to imperfect descriptions embodied in the maxim falsa demonstrati non nocet (a false description does not vitiate the document), while the former (Section 97) deals with a particular form of imperfect description, namely, when such description applies to a double and not to a single set of facts". 51 The rule embodied in Sections 95 and 97 is the same as that prevailing in England. Whereas all kinds of extrinsic evidence is admissible in the cases covered by the sections, in England direct declarations of intention of the maker of the instrument cannot be given.

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The law in England is stated by P HIPSON as follows: (P HIPSON ON E VIDENCE , 15th Edn. (2000), Paras 43-40, page 1227) "(a ) When the words of a document, in their primary or ordinary sense, are applicable to the facts, and are not modified by the context, extrinsic evidence cannot be given to show that they were not used in that sense (b ). But where it is clear, either from the context or the facts, that such meaning cannot have been intended, extrinsic evidence (including surrounding circumstances, treatment and habits of speech, but not declarations of intention) may be given to show that they were used in some secondary or less ordinary sense, provided it is one which the words can properly bear." It was held by the Privy Council that where it was impossible to reconcile the statement in an agreement for the sale of land with the recitals in the schedule as to the extent of the land to be conveyed, extrinsic parol evidence is admissible to explain the facts that led to the execution of the document in order to reconcile the conflicting statements in regard to the property sold. 52 Where the words of a grant are clear, certain, and unambiguous they should be interpreted in their plain ordinary grammatical meaning, but where they give rise to latent ambiguity extrinsic evidence would be admissible for construing the grant. 53 Where a Jalkar "situated in Mauza Moriar " was leased but in fact it was situate in a village Morsandi , it was held that the reference to Mauza Moriar was through misapprehension as the Jalkar was in the vicinity of Moriar, and oral evidence was admissible to show that what was leased out was the Jalkar in Morsandi . 54 Where there was an order of allotment referring to accommodation situated at a particular place though in fact the accommodation was situated at another place and the parties were aware which accommodation was meant by the order, it was held that under this section the allottee can adduce evidence to prove to which accommodation the order relates and the slight error in location would not make the order invalid. 55 Where two wills were executed on two different dates, and the later will raised ambiguity on the face of it as to whether it was in substitution for or in addition to the earlier one, it was held that extrinsic evidence can be admitted to ascertain the testator's intention. 56 Where a bequest was made to "A, my aurasa son " knowing that A was not his aurasa son, it was held that the misdescription was immaterial and oral evidence was admissible to show A was the legatee. 57 Where the recitals in a sale certificate though plain in themselves, do not fit in with the admitted facts namely the survey number, the names of the tenants and the area of the plot of land sold and a doubt arises that either the survey number or the names of the tenants and the area given must be wrong, extrinsic evidence was held admissible. 58 Where a notice for forfeiture of a bond was given, stating that in case of non- appearance the amount of the bond would be forfeited to "King Emperor" instead of "State", it was held that the misdescription in the notice does not invalidate the notice. 59 Where there was a conflict between the description of area given in a compromise petition and the decree based on it, and the act ual measurements, it was held that the former would prevail. 60 Where sufficient description of the premises is set forth by giving the name of the particular field or otherwise, a false description added thereto (e.g., the mention of a wrong survey number) may be rejected. 61 In the case of sale of property in the execution of a decree (under Order XXI, Rule 90, C.P.C.), the doctrine was applied and the misdescription of property was ignored and the sale was upheld.62 It is settled law that in a private sale the area within the boundaries specified prevailed over the extent, on the application of the principle of Falsa demonstratio non nocet (false description does not vitiate). Even in the case of sale certificates (issued in court sales) in the first instance the area within the boundaries must be held to prevail over the extents. But under Sections 95 and 97 of the Evidence Act, the parties can lead extrinsic evidence to show what was the true state of affairs that is to say, whether the whole land lying within the boundaries described was taken possession of and enjoyed in fact or only the extent specified was taken possession of and enjoyed. The real intention of the parties has to be gathered not merely from what is set out ex facie in the document in question, but also from the extrinsic evidence of user. 63 In a contract of sale where there was conflict between the boundaries given for the land and extent of the area, it was held that the intention must be gathered from the circumstances that led to the contract of sale. 64

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49 Karuppa Goundan alias Thoppala Goundan v. Periathambi Goundan, (1907) 30 Mad 397, 399. 50 W OODROFFE , Ev. 9th Ed. 689; C UNNINGHAM , Ev. 276. 51 W OODROFFE , Ev. 9th Ed. 689. 52 Hussanally v. Mangaldul, AIR 1921 PC 40. 53 Devandra Singh v. State of M.P., 1976 MPLJ 437. 54 Ramlakhan v. Digbijay, AIR 1948 Pat 274. 55 Shamsher Bahadur v. State of U.P., AIR 1964 All 395; see also Annathuri v. Ramanuja, 22 MLJ 411. 56 R. Souri Rajulu Naidu v. Kothandarama Naidu, AIR 1965 Ker 122. 57 Court of Wards v. Venkata, ILR 22 Mad 383, see also Aijaz v. Ram Sarup, AIR 1931 Oudh 54, (creditor's name was noted as K instead of R in the acknowledgement.) 58 Basudev Das v. Somenath Das, AIR 1964 Ori 63. 59 Rahimullah v. State, (1973) 1 All 167. 60 Kali Saran Nanak Chand v. Hari Ram, AIR 1958 Punj 13. 61 Santaya v. Savitri, (1902) 4 Bom LR 871; Mahabir Prasad v. Masiatulah, (1915) 38 All 103. 62 Sheodhyan Singh v. Sanichara Kuer, AIR 1956 Pat 349. 63 Basava-punna-reddy v. Krishnayya, AIR 1966 AP 260; Perraju v. Venkamma, AIR 1971 AP 74; Roy & Co. v. Nani Bala Dey, AIR 1979 Cal 50; P.K.A.B. Co. Op. Society v. Govt. of Palestine, AIR 1948 PC 207; Kasuppa Goundan v. Pesjathambi Goundan, (1907) 30 Mad 397. 64 Hara Krishna Dewan v. Ram Surat Pandey, AIR 1952 Tripura 28.

2. SECURITY BONDS Where the words or terms of a security bond which was ordered by the court to be given, are ambiguous, the bond is to be construed in the light of the order of the court and the antecedent circumstances. 65 65 Jiban Krishna v. N.B. Coal Co. Ltd., AIR 1965 Cal 242; B. Nagappa Naik v. Manianath Das Desai, AIR 1959 Mys 165; Swaminatha Iyre v. Srinivasa Ammal, (1970) 2 MLJ 636; Raghunandan v. Kirtyanand, AIR 1932 PC 1; Mahendra Nath v. Satish Chandra, AIR 1934 Cal 569 : ILR 61 Cal 590.

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CHAPTER VI OF THE EXCLUSION OF ORAL BY DOCUMENTARY EVIDENCE S. 96. Evidence as to application of language which can apply to one only of several persons. When the facts are such that the language used might have been meant to apply to any one, and could not have been meant to apply to more than one, of several persons or things, evidence may be given of facts which show which of those persons or things it was intended to apply to. ILLUSTRATIONS 5a )   A agrees to sell to B , for Rs. 1,000, "my white horse". A has two white horses. Evidence may be given of facts which show which of them was meant. 5b )   A agrees to accompany B to Haidarabad. Evidence may be given of facts showing whether Haidarabad in the Dekkhan or Haidarabad in Sind was meant. 1. PRINCIPLE AND SCOPE

This section also deals with latent ambiguity. In this section, the ambiguity arises when the facts in the language of the document are meant to apply to one, but they may also mean as applying to more than one person or thing. Illustrations (a ) and (b ) amply demonstrate, how the latent ambiguity would arise from the words in the document. In illus. (a ) selling of a white horse is a fact which is clear and unambiguous because "a horse" means only one horse. As the vendor had two white horses the ambiguity arises as to which horse was intended to be sold. Similarly, in illus. (b ) to which Hyderabad A agreed to accompany B is the ambiguity. To have the clarification of the fact, declaration of the intention by the party who agreed either to sell or to accompany illus. (a ) and (b ) would become necessary and such evidence may be given under this section. Where the language of a document, though intended to apply to one person or thing only, applies equally to two or more, and it is impossible to gather from the context which was intended, an equivocation arises, e.g., when the same name or description fits two persons or things accurately; when the same name or description fits two objects equally but subject to a common inaccuracy, provided that the inaccuracy be a mere blank or applicable to no other person or thing. This section modifies the rule laid down in Section 94 by providing that where the language of a document correctly describes two sets of circumstances but could not have been intended to apply to both, evidence may be given to show to which set it was intended to apply. Here the language is certain. The doubt as to which of similar persons or things the language applies has been introduced by extrinsic evidence. 66 S TEPHEN in his Digest (Art. 91) observed "Proof may be given of every fact which identifies any person or thing mentioned in a document in which the relation of the words to facts has to be

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ascertained. If the language of the document, though plain in itself, applies equally well to more objects than one, evidence may be given, both of the circumstances of the case and of the statements made by any party to the document, and as to his intentions in reference to the matter to which the document relates." This type of latent ambiguity is known as "Equivocation". This ambiguity is not discovered till the instrument is sought to be applied to external circumstances. Extrinsic evidence including the declarations of intention of the author of the document is allowed to be admitted by this section to show to which person or thing the words were intended to apply. 67 The Principle in Sections 96 and 97 is based on the Maxims "Veritas nominis tollit errorem demonstrationem; nihil facit error nominis cum de corpore constat; falsa demonstratio non nocet cum ae corpore constat. " All the three maxims mean that a false description does not vitiate a document. P HIPSON (P HIPSON ON E VIDENCE , 15th Edn. (2000), Paras 43-52, p. 1237) states "When the language of a document, though intended to apply to one person or thing only, is equally applicable in all its parts to two or more, and it is impossible to gather from the context which was intended, an equivocation arises, and in addition to the evidence admissible under former rules, (Proviso 6 to Section 92, Sections 95, 97) direct declarations of the writer's intention may be given to solve the ambiguity." W IGRAM gives the rule as follows: Where the object of the testator's bounty or the subject of disposition (i.e. the person or thing intended), is described in terms which are applicable indifferently to more than one person or thing, evidence is admissible to prove which of the persons or things so described was intended by the testator. (See also Sections 80Indian Succession Act Deo v. Hiscocks . 68 In this case a Government notification was in relation to 'Hossainpur' and there were two places 'Hossainpur' and land of 'Hossainpur Mouza'. It was held extrinsic evidence was admissible to show which place was intended. The Madras High Court in M. Achuttan v. T. Achuttan 69 held that where a pronote bears both English and Malayalam dates, the correct date has to be decided by allowing evidence under Section 96. Extrinsic evidence is admissible to show to which of two debts an acknowledgment was intended to apply. 70 One testatrix in her will bequeathed "my five row diamond bracelet" to one person and another bequest was given to another stating "my diamond chain bracelet". As a fact she owned only one diamond bracelet with eight rows of diamonds. It was held that as there was latent ambiguity extrinsic evidence was admissible and as the article being divisible each beneficiary was entitled to a moiety. 71 Evidence of conduct comes within this section. 72 Where an agreement of reference to arbitration does not refer to the disputes referred, the conduct of the parties is admissible to find out what disputes were referred. 73 66 Doe'd Hiscoks v. Hiscoks, (1839) 5 M&W 363; Nga Cho v. Mi Se Mt., (1916) 2 UBR 110; S TEPHEN ' S Dig., Art 91. 67 Chairman Seraiganj Municipality v. Chittagong Co. Ltd., 36 CLJ 242 : 72 IC 696 : AIR 1923 Cal 32. 68 5 M&W 363. 69 Achutan Nayor v. Achuthan Nayar, AIR 1941 Mad 587. 70 Nihatm Ram v. Radan Ram, 155 IL 1074. 71 Alexander's will, Re, (1948) 2 All ER 111. 72 Ali Abbas v. Sher Bahadur Singh, 1925 Oudh 264. 73 Rami Naidu v. Seethan Naidu, AIR 1935 Mad 276.

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CHAPTER VI OF THE EXCLUSION OF ORAL BY DOCUMENTARY EVIDENCE S. 97. Evidence as to application of language to one of two sets of facts, to neither of which the whole correctly applies. When the language used applies partly to one set of existing facts, and partly to another set of existing facts, but the whole of it does not apply correctly to either, evidence may be given to show to which of the two it was meant to apply. ILLUSTRATION

A agrees to sell to B "my land at X in the occupation of Y ". A has land at X , but not in the occupation of Y , and he has land in the occupation of Y , but it is not at X . Evidence may be given of facts showing which he meant to sell.

COMMENTS This section is an extension of the rule in Section 95. Under this section the language used in the document applies partly to one set of existing facts and partly to another set of existing facts, but if all the facts are taken together they would not apply to either. In such cases extrinsic evidence may be given to show to which of the two, the language was meant to apply. This section is based upon the maxim falsa demonstratio non nocet. Sections 95, 96 and 97 all deal with latent ambiguity. "Where in a written instrument the description of the person or thing intended is applicable with legal certainty to each of several subjects, extrinsic evidence, including proof of declarations of intention, is admissible to establish which of such subjects was intended by the author." (T AYLOR , 12th Edn., S. 1226, p. 787). The rule rejecting erroneous description not substantially important is applicable only where there is enough to show the intention clearly. The illustration to this section shows that if A agrees to sell to B "my land at X in the occupation of Y", and A has land at X but not in the occupation of Y, and has land in the occupation of Y but it is not at X, evidence may be given to show which land was intended to be sold. Another common case is where land within certain boundaries is sold and is wrongly described as containing a certain area, the error in area is regarded as a mere misdescription and does not vitiate the deed. The maxim falsa demonstratio non nocet applies. 74 Where the document of sale, mentions the boundaries which indicate that the whole plot was sold, but another part of it shows the survey number which indicates that only part of the plot was the subjectmatter of sale, extrinsic evidence is admissible to show whether the whole or only a part of the plot is intended to be sold. 75 Where a statement in the document was in conflict with the schedule, as to the extent of land to be conveyed under the document, it was held that parol evidence was admissible to

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explain the fact that led to the execution of the agreement in order to reconcile the different statement in respect of the property sold. 76 Where there was an agreement by a vendor to sell his land to several persons, but in the body of the agreement only one person was named and "to others" was added it was held that parol evidence is admissible to identify the other vendees. 77 Where a bequest was made by a person to his 'wife Caroline' whom he had married after his wife Mary left him (though Caroline was not his legally wedded wife as the marriage was bigamous) it was held that Caroline took the legacy. 78 74 Karuppa Goundan v. Periathambi Goundan, (1907) 30 Mad 397; Pahalwan v. Muhessur, 16 WR 5(PC) ; Triboobandas v. Krishnasam, 18 B 283; Bholanath v. Mrityunjoy, 59 CLJ 532; Basavapunnareddy v. Krishnayya, AIR 1966 AP 260; Banaphal Singh v. Noor Mohammad, 1935 All 662; Durga Pd.Singh v. Rajendra, (1913) 41 Cal 493; P.K.A.B. Co. Op. Society v. Govt. of Palestine, AIR 1948 PC 207; Kali Saram v. Hari Ram, AIR 1958 Punj 13; Roy & Co. v. Mani Bala, AIR 1979 Cal 50. 75 Banaphal Singh v. Noor Mohammad, AIR 1935 All 662. 76 Hussanally v. Mangaldas, AIR 1921 PC 40. 77 Vedamurthi v. Jawalapuram, 42 MLJ 475 : 65 IC 973. 78 Deo v. Rouse, 5 CB 422; see also Taylor v. Hammond, 34 ChD 255; Ryall v. Hannam, (1874) 76 RR 201.

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CHAPTER VI OF THE EXCLUSION OF ORAL BY DOCUMENTARY EVIDENCE S. 98. Evidence as to meaning of illegible characters, etc. Evidence may be given to show the meaning of illegible or not commonly intelligible characters, of foreign, obsolete, technical, local and provincial expressions, of abbreviations and of words used in a peculiar sense. ILLUSTRATION A , a sculptor, agrees to sell to B , "all my mods". A has both models and modelling tools. Evidence may be given to show which he meant to sell. 1. PRINCIPLE AND SCOPE

This section enables the party to give evidence to show the meaning of illegible or not commonly intelligible characters, foreign, obsolete, technical, local and provincial expressions, of abbreviations and of words used in a peculiar sense. Section 45 of this Act says the opinion of experts or specially skilled persons in regard to foreign law, Science or Art or as to handwriting or finger impressions, is relevant. Under Section 49 the opinion of persons having special means of knowledge in regard to meaning of words or terms used in particular districts or by particular class of people or of usages and tenants is relevant. For the purpose of this section such opinion referred to in Sections 45 and 49 can be obtained. Section 57,clause (13) provides that on all matters of public history, literature, science or art the court may resort for its aid, to appropriate books or documents of reference. Section 92, proviso (5) speaks of usage or custom in regard to which parol evidence is admissible but such evidence should not be repugnant to or inconsistent with the terms of the contract. The evidence cannot properly be said to vary the written instrument; it only explains the meaning of expressions used. Mercantile usage has given special meanings to many ordinary words. Evidence of the meaning which these words bear in mercantile transactions can be given under this section. The principle upon which words are to be construed in instruments is very plain. Where there is a popular and common word used in an instrument, that word must be construed prima facie in its popular and common sense. If it is a word of a technical or legal character it must be construed according to its technical or legal meaning. If it is a word which is of a technical and scientific character, then it must be construed according to that which is its primary meaning, namely, its technical and scientific meaning. But before you can give evidence of the secondary meaning of a word, you must satisfy the court from the instrument itself or from the circumstances of the case that the word ought to be construed, not in its popular or primary signification, but according to its secondary intention. 79 Where the point in dispute is as to the meaning of a particular word in the document, evidence may be admitted to show in what peculiar sense that particular word is used, and extrinsic evidence including

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the evidence regarding the subsequent conduct of the parties is admissible to determine the effect of the instrument as well as the intention of the parties. 80 W IGMORE on Evidence (Section 2465) states: "There is no reason, in the nature of things, why the individual parties to a transaction may not employ words in a particular sense, irrespective of the ordinary or popular sense; because what we are seeking, in interpretation, is their actual standard, and the popular standard is merely taken provisionally, as presumably theirs. It can thus be, in theory, only a question of fact in each case whether the parties were using a special mutual sense...... there is no transaction whatever in which, for some idea or other, the parties do not use words in a sense of their own. Having themselves locked up the idea in the words. They themselves must furnish the key to unlock it." Notes in shorthand are 'not commonly intelligible characters and abbreviations' within the meaning of this section. But the report of a shorthand writer is strictly speaking not substantive evidence and can be used only as part of the oral evidence. 81 The illustration to this section is based on Goblet v. Beechey 82 where the question was as to the meaning of 'modtools for carving' which were the subject of a bequest by a sculptor. The opinions of statuaries was admitted to prove that there were no such tools as modelling tools for carving and that the word 'mod' would be understood by a sculptor as an abbreviation for models. 83 Where a subsequent inventor claimed a particular invention and the question was whether he used the specification of a prior invention the Privy Council held that it is a question of construction and parol evidence is admissible only for the purpose of explaining the words or symbols of art and other such like technical matters and of informing the court of relevant surrounding circumstances. 84 It was held that the word 'year' in theatrical usage meant those parts of the year during which the theatre was open. 85 Where gas meters were to be inspected "daily" it was held that the practice of the parties that they are not inspected on Sundays was held inadmissible. 86 October in a marine Contract of Insurance was understood as the period 25th to 31st of that month.

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The use of the word '1000 rabbits' in a lease of a rabbit warren was held to mean in that particular part of the country 1200 rabbits. 88 79 Holt & Co. v. Collyer, (1881) 16 Ch D 718, 720. 80 State v. Bundi Electric Supply Co. Ltd., AIR 1970 Raj 36. 81 Laxmi Narayan v. Returning Officer, (1974) 3 SCC 425 : AIR 1974 SC 66. 82 3 Sim 24 : 9 LJ Ch 200. 83 3 Sim 24 : 9 LJ Ch 200. 84 Canadian G.E. Co. v. Fada Radio Ltd., AIR 1930 PC 1. 85 Grant v. Maddox, (1846) 15 MEW 737. 86 L.C.C. v. South Metro Gas Co., (1904) 1 Ch 76. 87 Chaurand v. Angerstein, (1791) 1 Peake 43. 88 Smith v. Wilson, (1832) 3 B & Ad 728.

2. ILLEGIBLE OR NOT COMMONLY INTELLIGIBLE CHARACTERS ETC. In regard to meaning of the vernacular words (e.g. Herkmi, Malguzari, Jama etc. ,) it was held by the Privy Council that it is desirable that the word used in vernacular should be inserted in brackets after

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the English rendering for assisting the court to determine which meaning is applicable to a particular case. 89 It is the duty of the court to act upon an official translation unless its rejection is justified by an expert. 90

A judge shall not attempt to translate, however qualified to translate, as he is not a witness and also the parties cannot test his translation. 91 89 Charu Chondra v. Kamakhya Nasair, AIR 1931 PC 5. 90 Sellamani Ammal v. Thillai Ammal, 1946 PC 185; Sasiman v. Shibnarain, AIR 1922 PC 63; Rajendra v. Gopal, AIR 1930 PC 243. 91 R.H.L.R. Bahadur Estates v. Hern Chandra, AIR 1949 PC 179.

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CHAPTER VI OF THE EXCLUSION OF ORAL BY DOCUMENTARY EVIDENCE S. 99. Who may give evidence of agreement varying terms of document. Persons who are not parties to a document, or their representatives in interest, may give evidence of any facts tending to show a contemporaneous agreement varying the terms of the document. ILLUSTRATION A and B make a contract in writing that B shall sell A certain cotton, to be paid for on delivery. At the same time they make an oral agreement that three months' credit shall be given to A . This could not be shown as between A and B , but it might be shown by C , if it affected his interest. 1. PRINCIPLE AND SCOPE

This section enables strangers to give evidence of any facts tending to show a contemporaneous agreement varying the terms of the original document. Section 92 forbids the admission of evidence of an oral agreement for the purpose of contradicting, varying, adding to, or subtracting from, the terms of a written document as between the parties to such document or their representatives-in-interest. The principle of Section 92 does not apply to third persons. If it were otherwise, third persons might be prejudiced by things recited in the writings, contrary to the truth, through the ignorance, carelessness, or fraud of the parties, and therefore, ought not to be precluded from proving the truth, however contradictory it may be to the written statements of others. 92 On the contrary, this section distinctly provides that persons who are not parties to a document may give evidence tending to show a contemporaneous agreement varying the terms of the document. 93 The illustration explains the principle of this section. 92 T AYLOR , 12th Edn. S. 1149, p. 735. 93 Bageshri Dayal v. Pancho, (1906) 28 All 473, 474.

2. VARYING In this section the word "varying" only is used, while in S. 92 the words are "contradicting, varying, adding to, or subtracting from". But it is difficult to see that in using the term "varying" only, anything less could have been meant than what is conveyed by the several expressions in S. 92 and as every "contradicting," "adding to", or "subtracting from" would necessarily be a "varying" of the instrument, the Legislature apparently used that expression as sufficient to convey all that is denoted by the other different expressions occurring in the earlier section. 1

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The Supreme Court also observed "There is no doubt that S. 92 does not apply to strangers who are not bound or affected by the terms of the document. Persons other than those who are parties to the document are not precluded from giving extrinsic evidence to contradict, vary, add to or subtract from the terms of the document. It is only where a question arises about the effect of the document as between the parties or their representatives-in-interest that the rule enunciated by Section 92 about the exclusion of oral agreement can be invoked. This position is made absolutely clear by the provisions of Section 99 itself. Section 99 provides that "persons who are not parties to a document or their representatives-ininterest, may give evidence of any facts tending to show a contemporaneous agreement varying the terms of the document." Though it is only variation which is specifically mentioned in Section 99, there can be no doubt that the third party's right to lead evidence which is recognised by Section 99 would include a right to lead evidence not only to vary the terms of the document, but to contradict the said terms or to add to or subtract from them. In that case the official assignee sought a declaration that a deed of gift executed by the insolvent was void. The appellants pleaded that the transaction was in reality a transfer for consideration. The official assignee objected that the evidence that was sought to be led in support of the plea was inadmissible. The Supreme Court held that the official assignee was not a representative of the insolvent and Section 92 did not apply." 2 A stranger can show that the document of sale is really a deed of gift.

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The mortgagers or their representatives cannot be permitted to say that they have no interest in the property that was mortgaged, but third parties to it can question the mortgagor's title to that property.

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Though a document ex facie shows that it is a mortgage, contemporaneous oral agreement to treat it as a sale can be proved by strangers to the document. 5 The plaintiff sued to recover one-fourth of the price of a house alleged to have been sold by the first defendant, the claim being based upon a local custom. The transaction between the defendants was ostensibly not a sale but a usufructuary mortgage. It was held that the plaintiff, not being a party to the transaction, was entitled to give evidence to show that what purported to be a usufructuary mortgage was not in reality such, but was in fact a sale. 6 In the case of an alienation of land in which a document has been executed purporting to be a deed of gift or mortgage, it is open to a third party claiming to exercise a right of pre-emption to prove that the transaction was in reality one of sale, and that the document sought to be impugned was executed in order to conceal its real nature and to defraud him of his legal rights. 7 Contemporaneous oral agreement for repurchasing the property sold, can be proved by strangers and not by the vendor of the sale deed. 8 1 Pathammal v. Kalai, (1903) 27 Mad 329, 331; Tarachand v. Baldeo, (1890) PR No. 117 of 1890, FB (Civil); Krishnaswami Iyer v. Mangalathammal, 53 IC 243. 2 Bai Hira Devi v. The Official Assignee of Bombay, 1958 SCR 1384 : AIR 1958 SC 448. 3 Ashfa v. Syed Nazir, 53 IC 961 : AIR 1919 Oudh 420. 4 Rukmani v. Anakamma, AIR 1926 Mad 74. 5 Sundarlal v. Mohanlal, AIR 1953 MB 143. 6 Bageshri Dayal v. Pancho, (1906) 28 All 473; Rahiman v. Elahi Baksh, (1900) 28 Cal 70, dissented from Pathammal v. Kalai, (1903) 27 Mad 329. 7 Tara Chand v. Baldeo, (1890) PR No. 117 of 1890, FB (Civil), Parmanand v. Airapat Ram, (1899) PR No. 20 of 1899 (Civil); Megha Ram v. Makhan Lal, (1912) PR No. 67 of 1912 (Civil). 8 Ma Mi v. Maung Anugh Dun, AIR 1928 Rang 244.

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CHAPTER VI OF THE EXCLUSION OF ORAL BY DOCUMENTARY EVIDENCE S. 100. Saving of provisions of Indian Succession Act relating to wills. Nothing in this Chapter contained shall be taken to affect any of the provisions of the Indian Succession Act (X of 1865) as to the construction of wills.

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Ratanlal & Dhirajlal: Law of Evidence, Updated 23rd Edition/THE INDIAN EVIDENCE ACT (ACT 1 OF 1872)/PART III PRODUCTION AND EFFECT OF EVIDENCE/CHAPTER VII THE BURDEN OF PROOF/S. 101.

CHAPTER VII THE BURDEN OF PROOF S. 101. Burden of proof. Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. ILLUSTRATIONS 5a)   .4 desires a Court to give judgment that B shall be punished for a crime which .4 says B has committed. .4 must prove that B has committed the crime. 6b)   .4 desires a Court to give judgment that he is entitled to certain land in the possession of B , by reason of facts which he asserts, and which B denies, to be true. .4 must prove the existence of those facts. 1. PRINCIPLE AND SCOPE

Part III of the Act deals with the production and effect of evidence in five chapters namely Chapters VII to XI. Chapter VII deals with matters relating to burden of proof. Section 2 defines 'proved' by stating that "a fact is said to be proved when after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought under the circumstances of the particular case, to act upon the supposition that it exists". Therefore proof means that "matter" from which the court either believes the existence of a fact or considers its existence so probable that a prudent man should act upon the supposition that it exists. Onus to prove a fact is on the person who asserts its. 1 Section 101 attempts to define burden of proof. This provision proceeds to say in positive terms as to the person on whom burden of proof lies whereas Section 102 puts it in negative terms. These two provisions deal with a general situation and lay down general propositions, whereas sections 103 to Section 113-B deal with specific situations and can be viewed as exceptions to the general rule. While dealing with the specific situations, the provisions also mention about the presumptions which the court may or shall presume as well as what would be conclusive proof. See Section 4 for the difference between "may presume", "shall presume" and "conclusive proof". The term onus probandi , in its proper use, merely means that, if a fact has to be proved, the person whose interest it is to prove it, should adduce some evidence, however slight, upon which a Court could find the fact he desires the court to find. It does not mean that he shall call all conceivable or available evidence. The general rule that a party who desires to move the Court must prove all facts necessary for that purpose (sections 101- 105) is subject to two exceptions:--

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6a)   he will not be required to prove such facts as are especially within the knowledge of the other party (Section 106); and 7b)   he will not be required to prove so much of his allegations in respect of which there is any presumption of law (sections 107- 113), or in some cases, of fact (Section 114) in his favour. For example, a very old man donated land and later sued for possession on the ground that the gift was not voluntary. The burden was upon the donee. 2 The burden of proof lies on the party who substantially asserts the affirmative of the issue and not upon the party who denies it. This rule of convenience has been adopted in practice, not because it is impossible to prove a negative, but because the negative does not admit of the direct and simple proof of which the affirmative is capable. Moreover, it is but reasonable and just that the suitor who relies upon the existence of a fact, should be called upon to prove his own case. In the application of this rule, regard must be had to the substance and effect of the issue, and not to its grammatical form, for in many cases the party, by making a slight alteration in the drawing of his pleadings, may give the issue a negative or affirmative form, at his pleasure. 3 The party on whom the onus of proof lies must, in order to succeed, establish a prima facie case. He cannot, on failure to do so, take advantage of the weakness of his adversary's case. He must succeed by the strength of his own right and the clearness of his own proof. This expression means two different things. It means sometimes that a party is required to prove an allegation before judgment can be given in its favour; it also means that on a contested issue one of the two contending parties has to introduce evidence. The burden of proof is of importance where by reason of not discharging the burden which was put upon it, a party must eventually fail. 4 In P HIPSON on Evidence, 13th Edn., Page 44, Para 4-03, it is observed: "The phrase, burden of proof, has three meanings: (1) the persuasive burden, the burden of proof as a matter of law and pleading the burden of establishing a case, whether by preponderance of evidence or beyond a reasonable doubt (Also referred to as the "legal burden" 5 . We prefer the term "persuasive burden" as being, we think, the more common use and in any event being easier to understand (see W ILLIAMS , C RIMINAL L AW : The General Part, Chapters 2, 3). (2) the evidential burden, the burden of proof in the sense of adducing evidence (The phrase "evidential burden" is described by P ROFESSOR C ROSS (5th ed. p. 87), as accurate and as a phrase which is coming to be increasingly used by the English Judges. L ORD D EVLIN however thought it confusing. 6 We agree with P ROFESSOR C ROSS that it is both accurate and now in common use). (3) the burden of establishing the admissibility of evidence. H ALSBURY , Vol. 17, Page: 11, it is observed: "There are at least two distinct senses in which burden of proof is used 7 , and clarity over which sense is relevant at any given time is essential 8 . The legal burden is the burden of proof which remains constant throughout a trial (This is the preferable view. The incidence of the burden on different issues may lie in different places, and issues may rise or fall according to the facts proved, 9 but on the analysis of issue the legal burden will not change 10 it is the burden of establishing the facts and contentions which will support a party's case. If at the conclusion of the trail he has failed to establish these to the appropriate standard, he will lose 11 . The incidence of this burden is usually clear from the pleadings, it usually being incumbent upon the plaintiff to prove what he contends. 12 The evidential burden, however, may shift from one party to another as the trial progresses according to the balance of evidence given at any particular stage; this burden rests upon the party who would fail if no evidence at all, or no further evidence, as the case may be, was adduced by either side. 13 S TEPHEN in his digest (125, 128) states that "The primary meaning of the word "burden of proof" could have other applications and various writers have discussed the burden of proof in relation to its subject matter, such as the proof of issues and of individual facts relevant to or within an issue." Regarding the second sense of the phrase, namely introducing evidence S TEPHEN ' S D IGEST (7th Ed. Article 95, p. 109) observed: "The burden of proof, in any proceeding, lies at first on that party against whom the judgement of the court would be given, if no evidence at all were produced on either side, regard being had to any presumption, which may appear upon the pleadings. As the proceedings goes on, the burden of proof may be shifted from the party on whom it rested at first, by his proving

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facts which raise a presumption in his favour." At page 112, it was observed: "That this rule holds equally as to matters which are not the subject of express allegation, but relate to the admissibility of evidence or the construction of documents, e.g., if either party desired to give secondary evidence of a lost deed, the burden of proving the loss is upon him." What is called burden of proof on the pleadings should not be confused with the burden of adducing evidence which is described as shifting. The burden of proof on the pleadings never shifts, it always remains constant. The initial burden of proving a prima facie case in his favour is cast on the plaintiff; when he gives such evidence as will support a prima facie case, the onus shifts on to the defendant to adduce rebutting evidence to meet the case made out by the plaintiff. As the case continues to develop, the onus may shift back again to the plaintiff. It is not easy to decide at what particular stage in the course of the evidence the onus shifts from one side to the other. 14 In S ENGUPTA on Evidence, Page: 715, it is observed: "Onus of proof in its primary sense means the duty of establishing a case. This remains throughout the entire case exactly where the pleadings originally placed it. It never shifts. It is a question of law. In its secondary sense onus means no more than the duty of adducing evidence and in this sense, the burden may shift constantly throughout the trial. This involves no question of law but one of fact only." 15 The question of onus probandi is certainly important in the early stages of a case. It may also assume importance where no evidence at all is led on the question in dispute by either side; in such a contingency the party on whom the onus lies to prove a certain fact must fail. Where, however, evidence has been led by the contesting parties on the question in issue, abstract considerations of onus are out of place; truth or otherwise of the case must always be adjudged on the evidence led by the parties. 16 Supreme Court observed: "Defendant who is in possession of account books kept by him and from which the balance could be ascertained should produce them before Court. He cannot be heard to say, relying upon the abstract doctrine of onus of proof, that it was no part of his duty to produce them unless he was called upon to do so". 17 It was observed: "A person who seeks to displace the natural succession to property by alleging an adoption must discharge the burden that lies upon him by proof of the factum of adoption and its validity. The evidence in proof of the adoption should be free from all suspicion of fraud and so consistent and probable as to give no occasion for doubting its truth. Nonetheless the fact of adoption must be proved in the same way as any other fact. 18 Where a party in possession of best evidence which would throw light on his issue in controversy withholds it, the court ought to draw an adverse inference against him not withstanding that the onus of proof does not lie on him. Party cannot rely on abstract doctrine of onus of proof or on the fact that he was not called upon to produce it in such a case. 19 Where both parties have already produced whatever evidence they had, the question of burden of proof ceases to be of any importance; 20 but while appreciating the question of burden of proof, misplacing of burden of proof on a particular party and recording findings in a particular way will definitely vitiate the judgment. 21 The Privy Council, in Mohd. Aslam Khan v. Feroz Shah, 22 observed : "It is not necessary to enter upon a discussion of the question of onus where the whole of the evidence in the case is before the Court and it has no difficulty in arriving at a conclusion in respect thereof."

L ORD D UNEDIN in Robin's v. National Trust Company 23 observed: "Onus is always on the person who asserts a proposition of fact which is not self-evident. To assert that a man who is alive was born, requires no proof. The onus is not on the person making the assertion because it is self-evident that he has been born. But to assert that he was born on a certain date, if the date is material, requires proof; the onus is on the person making the assertion. Now in conducting any inquiry, the determining tribunal i.e., the Judge or Jury, will often find that the onus is sometimes on the side of the one

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contending party, sometimes on the side of the other, or as it is often expressed, that in certain circumstances the onus shifts. But onus as the determining factor of the whole case can only arise if the tribunal finds the evidence, pro and con so evenly balanced that it can come to no sure conclusion. Then the onus will determine the matter. But, if the tribunal after hearing and weighing the evidence comes to a determinate conclusion the onus has nothing to do with it and need not be further considered." 24 L ORD M AUGHAM in Constantine Jeseph Steamship Line v. Imperial Smelting Corporation Ltd. 25 observed: "The burden of proof in any particular case depends on the circumstances in which the claim arises. In general the rule which applies is Ei qui affirmat non ei qui negat incumbit probatio. It is an ancient rule founded on considerations of good sense and should not be departed from without strong reasons." The concept of burden of proof always shifts depending on the facts and circumstances of the case and the same cannot be put in a water tight compartment. 26 When after the entire evidence is adduced, the tribunal feels it cannot make up its mind as to which of the versions is true, it will hold that the party on whom the burden lies has not discharged the burden; but if it has on the evidence no difficulty in arriving at a definite conclusion, then the burden of proof on the pleadings recedes into the background. 27 At the end of a case when both the parties have led evidence and the conflicting evidence can be weighed to determine which way the issue can be decided, the abstract question of burden of proof becomes academic. 28 It was observed in Harmes v. Hinkson 29 that if no evidence was given by the party on whom the burden lies, the issue must be found against him, but this is qualified as pointed out in Robins v. National Trust Co. 30 that onus as determining factor would come into play where there was no evidence on either side or where it was equally worthless or where it was equally balanced. The determination of the question of burden of proof cannot depend on the form of the issue, but has, in a case in which onus of proof is a matter in controversy, to be argued and a ruling thereon given by the court at the appropriate stage after issues have been framed. 31 When all the circumstances have been ascertained so far as the parties have thought fit to ascertain them, discussion on the point of onus of proof becomes immaterial. The question of onus only becomes important if the circumstances are so ambiguous that a satisfactory conclusion is impossible without resort to the principles relating to burden of proof. 32 The plaintiff cannot obviously take advantage of the weakness of the defence. The plaintiff case must stand or fall upon the evidence adduced by him. 33 If there is any dispute as to amount claimed with regard to depreciation, then the burden of proof is on the company to prove by legal evidence. If presumption of accuracy is attached to balance sheet and profit and loss account and not to auditor's certificate, then mere production of auditor's certificate will not be conclusive. 34 Burden of proof as to correctness of balance sheet and profit and loss account is on company. 35 In an appeal to the Central Government under Sections 111(3) of the Companies Act , 1956 for refusal of registration of shares further, if there is presumption in favour of directors, then the burden of proof is on the person who is appealing against the refusal order of directors. 36 Burden of proving that the transaction on which the alleged title is claimed is bona fide and for valuable consideration is heavily on plaintiff, when circumstances surrounding the transaction are suspicious. 37 Once the liquidator has shown that there was a declaration of dividend amounting to misapplication of the bank's capital resulting in loss to the bank, the burden is on the directors to show that the dividend then declared had not act ually been paid. 38 Burden is on applicant to show that there has been misrepresentation which has influenced the majority or that there has been some unfair dealing, i.e., some ulterior motive of the transferor company in advising the share holders to accept the offer. 39

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Under Art. 311[(]1[)] , Constitution of India , the burden of proving who was the appointing authority need not be on the employee where the point was raised and evidence was adduced by both parties. 40

Where evidence has been led by the contesting parties on the question in issue, abstract considerations of onus are out of place and the truth or otherwise of the case must always be adjudged on the evidence led by the parties. 41 Evidentiary admissions are not conclusive proof of the facts admitted and they may be explained or shown to be wrong but they do raise an estoppel and shift the burden of proof to the person making them or his representative-in-interest. 42 Where there is an admission by a party the burden of proof shifts and it is for the party making the admission to explain it away. 43 In order to come to a conclusion concerning on whom the legal burden of proof rests, in addition to the substantive law, the pleadings of the parties coupled with the documents that are produced and the admission if any, concerning such documents have to be taken to account. 44 In the matter of proof, in a civil case, a defendant cannot take up the same stand as an accused in a criminal case. In civil cases, unlike criminal ones, it cannot be said that the benefit of reasonable doubt must necessarily go to the defendant. Even the preponderance of probabilities may serve as a good basis for decision. 45 The Supreme Court has held that in a civil case involving allegation of charges of criminal or fraudulent character insistence on proving charges clearly and beyond reasonable doubt is wrong. 46 In every offence the prosecution must prove criminal intention on the part of the accused unless from the language used in the statute creating the offence, it is clear that an offence is committed irrespective of the intention. Intention like any other state of mind can only be proved by acts and circumstances. 47 Burden of proof obviously is on appellant to show that the acquittal was wrong and to show conclusively that the inference of guilt the respondent is irresistible. 48 This section lays down a test for ascertaining on which side the burden of proof lies. The section makes it clear that the initial onus is on the plaintiff. If he discharges that onus and makes out a case which entitles him to relief, the onus shifts on to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the same. 49 Where the plaintiff failed to discharge his burden of proving fraud or undue influence in the execution of the gift deed, it was not for the defendant to prove that there was no fraud or undue influence. 50 The elementary rule is that Section 101 is inflexible. 51 "So far as the persuasive burden is concerned, the burden of proof lies upon the party who substantially asserts the affirmative of the issue. 52 In Constantine Line v. Imperial Smelting Corporation. 53 L ORD M AUGHAM said : "The burden of proof in any particular case depends on the circumstances in which the claim arises. In general the rule which applies is Ei qui affirmat non ei qui negat incumbit probatio. 54 It is an ancient rule founded on considerations of good sense and should not be departed from without strong reasons."

This rule is adopted principally because it is but just that he who invokes the aid of the law should be the first to prove his case; and partly because in the nature of things, a negative is more difficult to establish than an affirmative." 55 (P HIPSON ON E VIDENCE , 15th Edn. (2000), p. 56, para 4-03). The phrase "burden of proof" is used in two distinct meanings in the law of evidence, viz., the burden of establishing a case and the burden of introducing evidence. The burden of establishing a case remains throughout the trial where it was originally placed; it never shifts. The burden of evidence may shift constantly as evidence is introduced by one side or the other. In Section 101 the phrase is used in its first meaning, and in this section in the second sense. 56

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Section 103 amplifies the general rule laid down is Section 101. It differs from Section 101. By Section 101 the party has to prove the whole of the facts which he alleges to entitle him to judgment when the burden of proofs is on him. This section provides for the proof of some one particular fact. The illustration sufficiently points out the meaning. All the facts, however numerous and complicated, which go to make up the accused's guilt, must be proved by the prosecution. If the accused wishes to prove a particular fact, his alibi for instance, he must prove it. If the prosecutor wishes to prove the case, not by independent oral testimony, but by the isolated fact of the accused's admission, or if he wishes to throw that in as an additional fact, he must prove it (N ORTON , 289). The plea of alibi must be substantiated by the accused. The trial court pointed out several suspicions throwing considerable doubts about the truth of the plea. The Supreme Court did not interfere. 57 As an instance of provision of law that the proof of a particular fact shall be upon a particular person, see Section 39 of the Criminal Procedure Code, which says that all persons shall give information of the commission of certain offences to the nearest police officer or Magistrate, and throws upon such persons the burden of proving reasonable excuse for not doing so. Where a person claims a right of way, he must prove that he acquired the right and it is not for the other party to show that he does not have any such right. 58 Where a person is protesting against nationalisation of a route, burden lies upon him to show that the scheme would not serve national purpose. 59 The nature of proceeding before the Commission under the Commission of Enquiry Act is fact finding, hence the Evidence Act is not applicable to it and orders passed by the Commission imposing burden on the affected persons to lead their evidence first in an incident concerning killing of ten persons by the police firing, 60 cannot be interfered with by the High Court. Burden of proof is in the realm of procedural law. By reason of such a provision, substantive right of the parties on an immovable property is not taken away. The A.P. Land Grabbing (Prohibition) Act, 1982, places negative burden on the notice but the same would not mean that he has been deprived of his right to defend himself in the proceedings. 61 1 For Statement of Objects and Reason, see Gaz. of India, 1868, p. 1574. 1 Commissioner of Trade Tax , U.P. v. Kajaria Ceramics Ltd., (2005) 11 SCC 149, 168 (para 37). See also Anil Rishi v. Gurbaksh Singh, AIR 2006 SC 1971, 1973 (para 9) : (2006) 5 SCC 558; Lingu Savithri v. P. Sahadev, AIR 2006 AP 182, 184 (para 11); Gamon India Ltd. v. Sheth Estate Developers Pvt. Ltd., AIR 2006 (NOC) 304(Guj) ; Ravi Shankar v. Rajendra Kumar, AIR 2007 (NOC) 1738(Chh) . 2 Ajmer Singh v. Atma Singh, AIR 1985 P&H 315; Mallo v. Bakhtawari, AIR 1985 All 160, gift by an old window; Clara Auroro de Branganca v. S.A. Alvares, AIR 1985 Bom 372(DB), deed executed by a person of unsound mind. 3 T AYLOR , 12th Edn., S. 364, p. 252. 4 Narayan Bhagwantrao Gosavi Balajiwala v. Gopal Vinayak Gosavi, AIR 1960 SC 100; Abdul Shukoor Saheb v. Arji Papa Rao, AIR 1963 SC 1150; Kalwa Devadattam v. Union of India, AIR 1964 SC 880. 5 Lord D ENNING , (1954) 61 LQR 379. 6 Jayasena v. R., (1970) AC 618, 624. 7 See Wakelin v. London and South Western Rly Co., (1886) 12 App Cas 41 at 45, HL; Hill v. Baxter, (1958) 1 QB 277 at 284 : (1958) 1 All ER 193 at 196 DC; Brown v. Rolls Royce Ltd., (1960) 1 All ER 577 : (1960) 1 WLR 210 HL; Bratty v. A-G (Northern Ireland), (1963) AC 386 : (1961) 3 All ER 523 HL. 8 An example of a case in which the position was not at all clear is Redpath v. Redpath and Milligam, (1950) 1 All ER 600 CA. 9 Emanule v. Emanuel, (1946) P 115 at 118 : (1945) 2 All ER 494 at 496; and Southport Corpn. v. Esso Petroleum Co. Ltd., (1954) 2 QB 182 at 199 : (1954) 2 All ER 561 at 571. 10 See The Merchant Prince, (1892) p. 179, CA. 11 Pickup v. Thames and Mersey Marine Insurance Co. Ltd., (1878) 3 QBD 594 at 599, 600 CA; Wakelin v. London and South Western Rly Co., (1886) 12 App Cas 41 at 45, HL. As to submissions of no case to answer, see Alexander v. Rayson, (1936) 1 KB 189, CA; Young v. Rank, (1950) 2 KB 510 : (1950) 2 All ER 166.

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12 The golden rule is that the onus of proof is on the plaintiff; Chanman v. Oakleign Animal Products Ltd., (1970) 8 KIR 1063 at 1072 CA per D AVIES LJ. 13 See Joseph Constantine Steomshep Line Ltd. v. Imperial Smelting Corpn. Ltd., (1942) AC 154 : (1941) 2 All ER 165 HL; Huyton-with-Roby UDC v. Hunter, (1955) 2 All ER 398 : (1955) 1 WLR 603 CA; Brown v. Rolls Royce Ltd., (1960) 1 All ER 577 : (1960) 1 WLR 210 HL. 14 Lakshmanna v. Venkateswarlu, AIR 1949 PC 278. See also Chandran v. Sunil Kumar, 2005 AIHC 390, 392 (para 4) (Ker). 15 Raghavamma v. Chenchamma, AIR 1964 SC 136; N.K. Moidinkunhi v. K.N. Abdulla, 1977 CrLJ 665(Kar) ; Referring in Mahanta Singh v. Het Ram, AIR 1954 Punj 27; Sheo Mangal v. Maharaj Kuar, AIR 1949 All 285; Nagayya v. Chengahna, 1957 AP 264; Surajbhan Kailash Chand v. Hari Shankar, AIR 1976 Del 70; Relying on Raghavamma v. Chenchamma, AIR 1964 SC 136 : (1964) 2 SCR 933; Lakshmamma v. Venkateswaralu, AIR 1949 PC 278; Ramendra v. 8th Industral Tribunal W.B., 1975 Lab IC 94(Cal) ; Ajit Prasad Narayan Singh v. Nandini Sathipathy, AIR 1975 Ori 184; Narayan Bhagwantrao Gosavi Balajiwale v. Gopal Vinayak Gosavi, AIR 1960 SC 100 : (1960) 1 SCR 773. 16 Kalwa Devadattam v. Union of India, AIR 1964 SC 880; Saraf v. Qurashi, 1980 J&K 36; Richpal Chand v. Richpal, 1958 All 546; Chandanlal v. Amin Chand, AIR 1960 Punj 500; Yellappa Ramappa v. Thippanna, AIR 1929 PC 8; Narayanan Bhagwantrao Gosavi Balajiwale v. Gopal Vinayak Gosavi, AIR 1960 SC 100, followed in Gangamma v. Krishnappa, 1996 AIHC 264 (para 9) (Kant). See also Standard Chartered Bank v. Andhra Bank Financial Services Ltd., (2006) 6 SCC 94, 137 (para 84) : AIR 2006 SC 3626; Sita Ram Bhau Patil v. Ramchandra Nago Patil, (1977) 2 SCC 49. 17 Hiralal v. Badkulal, AIR 1953 SC 225 : 1953 SCJ 315 : 1953 SCR 758. 18 Madhusudan Das v. Narayani Bai, AIR 1983 SC 114; A. Raghauamma v. A. Chanchamma, AIR 1964 SC 136. 19 Gopal Krishnaji Ketkar v. Mohamed Haji Latif, 1968 SC 1413; Gopal Krishnaji v. Mohamed Haji, Latif, (1971) 2 Cut WR 292 distinguishes AIR 1968 SC 1413; Niranjan Kau v. New Delhi Hotel Ltd., 1988 Del 332 relying on Gopal Krishnaji v. Mohd. Haji Latif, AIR 1968 SC 1413; Kashiram v. State, AIR 1996 MP 246 (para 10). 20 Premlata v. Arhant Kumar Jain, AIR 1973 SC 626; Babban v. Shiv Nath, AIR 1986 All 185; In M. Equipment v. N.L. Kanodia, AIR 1986 Del 36; Rebti Devi v. Ram Dutt, AIR 1998 SC 310, at p. 312; Arumugham v. Sundarambal, AIR 1999 SC 2216 (para 16); Devinder Singh v. Mansha Singh, AIR 2003 P&H 166, 171 (para 14) following Jagan Nath v. Jagdish Rai, AIR 1998 SC 2028 : (1998) 5 SCC 537; Madan Lal v. Rajesh Kumar (deceased by LRs, AIR 2005 NOC 495(B) (P&H); Chewag Dorjee Lama v. Lerap Dorjee Bhutia, AIR 2006 Sik 37, 45 (para 32). 21 Koppula Koteshwara Rao v. Koppula Hemantha Rao, 2002 AIHC 4950, 4953 (para 10) (AP). 22 1932 PC 228, followed in Jagan Nath v. Jagdish Rai, AIR 1998 SC 2028 : (1998) 5 SCC 537 and Devinder Singh v. Mansha Singh, AIR 2003 P&H 166, 171. 23 1927 AC 515. 24 Harmes v. Hinkson, AIR 1946 PC 156; Lakshmanna v. Venkateswarulu, AIR 1949 PC 278; Durga Prasad v. Ghanshiam, AIR 1948 PC 210; Prem Lata v. Arhant Kumar Jain, AIR 1973 SC 626; Ram Kishore Sen v. Union of India, AIR 1966 SC 644; Ramji Dayawala & Sons (P) Ltd. v. Invest Import, AIR 1981 SC 2085; J.P. Singh v. J.K. Roy, AIR 1971 Assam 168; Manaka v. Madhavarao, AIR 1950 PC 25; Relying on Robins v. National Trust Co., 1927 AC 515; Kalwa Devattatam v. Union of India, AIR 1964 SC 880; Baras Nath Thakur v. Mohini Dasi, AIR 1959 SC 1204; Madho Prasad v. Madho Prasad (General), ILR 1965 (2) All 901; G.G. of India In Guncie v. Bhanwari, AIR 1961 All 14; Sat Narain v. Dhurva Narain, AIR 1959 All 22; Richhpal Chand v. Richhpal Singh, AIR 1958 All 546; Union of India v. Eastern Match Co., AIR 1964 AP 172; Babban v. Shiv Nath, AIR 1986 All 185; Nagayya v. Cheganna, AIR 1957 AP 264; Kishorilal Behati v. Mahabir Prosad, (1960) 12 Assam 1; Jesraj Kumram v. I.T. Commissioner, AIR 1954 Ass 49; Jalim Chand v. Union of India, AIR 1956 Assam 188; Giribala v. Ushangiri Debi, AIR 1955 Assam 177; Jatindra Mohan Karmakar v. Nityananda Das Bairagya, (1951) 1 Cal 295; Chanam Reddy v. Narayan Reddy, AIR 1957 Hyd 29; Rajeshwar Rao v. Narasinga Rao, AIR 1952 Hyd 75; Nagappa Sowda v. Gurupadappa, 1954 Kant 39; Nanjamma v. Lingappa, 30 Mys LJ 1 (17B); Lala Laxminarayana v. Rukhmabai, ILR (1950) Nag 834; Babulal Agarwalla v. Province of Orissa, AIR 1954 Ori 225; Priya Bhat Narain v. Brijmohan Singh, AIR 1964 Pat 2; Reversing on facts in Brij Mohan v. Priya Brat, AIR 1965 SC 282; Rangabati v. United Bank of India, AIR 1961 Pat 158; following in Parasnath v. Mohini Dasi, AIR 1959 SC 1204; M.M.B. Catholics v. T. Paulo Avira, AIR 1959 SC 31; E.I. Ry. Co. Kirk-Wood , AIR 1922 PC 195; Hari Charan Rai v. Dwarika Prasad, AIR 1961 Pat 88; Following in M.M.B. Catholicos v. T. Paulo Aviro, AIR 1959 SC 31; Brahmdeo Narain v. Mishri, AIR 1959 Pat 430; Ramadhin v. Siraram, AIR 1957 Pat 64; Chandan Lal v. Amin Chand, AIR 1960 Punj 500; Shiv Ram v. Shiv Charan, AIR 1964 Raj 126; Neela Kanta Iyer v. Official Receiver, AIR 1951 TC 55; Sri Narayan v. Chamber of Commerce Ltd., (1968) 18 Raj 1212; Ram Kishore Sen v. Union of India, AIR 1968 SC 644; Gouranga Panigrahi v. Sahadeb Panigrahi, ILR (1968) Cut 695; Rishikesh Singh v. State of U.P., AIR 1970 All 51 (17B); Dasuram Nirjinal v. Brahmadatta Bajaj, AIR 1963 Assam 41; Badri Das Kothari v. Meghraj Kothari, AIR 1967 Cal 25; C. Abdul Shukoor Saheb v. Arji Papa Rao, AIR 1963 SC 1150; Narayan Bhawantrao Gosaivi Blajiwale v. Gopal Vinayak Gosavi, AIR 1960 SC 100; Moran Mar Basselios Catholicos v. Thukalan Paulo Avira, AIR

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1959 SC 31 followed in Nirmala v. Rukminibai, AIR 1994 Kant 247 (para 8); Secretary of State v. Laxmi Bai, AIR 1923 PC 6; Chidambara v. Verrama Reddy, AIR 1922 PC 292. See also Union of India v. Krimpex Synthetics Ltd., (2005) 7 SCC 374, 378 (para 12) : AIR 2005 SC 3479; Paka Venkaiah v. Taduri Buchi Reddy, AIR 2005 NOC 31(B) (AP) : (2004) 4 Andh LD 889; M.P.D.C.M.M. Dass v. Shiromani Gurdwara Prabandhak Committee, 2002 AIHC 3594, 3597 (para 14) (P&H). 25 (1942) AC 154, 174 : (1941) 2 A11 ER 165, 179 26 Surma Valley Saw Mills (Pvt.) Ltd. v. Arati Das, AIR 2002 Gau 108. 27 Lakshmanna v. Venkateswarlu, AIR 1949 PC 278; Pannu Jeegania v. Deviprasad, AIR 1963 MP 15. 28 Narayan Bhagwantrao Gosavi Balajiwale v. Gopal Vinayak Gosavi, AIR 1960 SC 100. See also M.M.B. Catholicos v. T. Paulo Avira, AIR 1959 SC 31; Paras Nath Thakur v. Mohani Dasi, AIR 1959 SC 1204; Kalwa Devadattam v. Union of India, AIR 1964 SC 880. 29 AIR 1946 PC 156. 30 (1927) AC 515. 31 In re : Voleti Appalaraju, ILR (1977) AP 80. 32 Sime, Darby & Co. v. Offl. Assignee, AIR 1928 PC 77. 33 Ramadhin v. Siaram, AIR 1957 Pat 64. Also see Punjab Urban Planning & Development Authority v. Shiv Saraswati Iron & Steel Re-Rolling Mills, (1998) 4 SCC 539; State of J & K v. Hindustan Forest Co., (2006) 12 SCC 198, 201 (para 10). 34 Metal Box Co.of India Ltd. v. Their Workmen, AIR 1969 SC 612. 35 L.B. Workers Union v. Industrial Tribunal, AIR 1962 Cal 375. 36 Harinagar Sugar Mills v. Shyam Sunder, AIR 1961 SC 1669. 37 Ramachandra v. Doulat, AIR 1951 MB 77. 38 K. Madhava v. Popular Bank, AIR 1970 Ker 131. See also Shobika Attire v. New India Assurance Co. Ltd., (2006) 8 SCC 35 : AIR 2006 SC 3261. 39 Leela Mahajan v. T. Stones & Co. Ltd., AIR 1957 Mad 225. 40 Khartar Saw v. Union of India, 1980 La IC 930(Pat) . 41 Union of India v. Moksh Builders and Financers, AIR 1977 SC 409; Charandas v. Mohindernath, (1977) 2 RCJ 820(P&H) . 42 Avadh Kishore Dass v. Ram Gopal, AIR 1979 SC 861. 43 Chandra Kunwar v. Narpat Singh, (1906) 29 All 184 : 34 IA 27 : 9 Bom LR 267; Dukh Haran Nath Zutshi v. Messrs. Commercial Credit Corporation Limited, (1939) 15 Luck 191. 44 Surajbhan Kailash v. Hari Shankar, AIR 1976 Del 70. 45 Himmat Mal v. Shah Magaji Khubaji, (1953) 3 Raj 815. See also M. Krishnan v. Vijay Singh, 2001 CrLJ 4705 (para 5) (SC) : AIR 2001 SC 3014. 46 Gulabchand v. Kudilal, AIR 1966 SC 1734. 47 State v. Munnilal, AIR 1953 Punj 204; following Srinivas Mall v. Emperor, ILR 1947 PC 135. 48 State of H.P. v. Batinath, 1957 HP 37. 49 Anil Rishi v. Gurbaksh Singh, AIR 2006 SC 1971, 1974 (para 19) ) : (2006) 5 SCC 558. 50 Khatrano Devi v. Hazari Sao, AIR 2006 Pat 106, 109-10 (para 12). 51 Rishi Kumar v. Gurbaksh Singh, AIR 2006 SC 1971, 1974 (para 19) ) : (2006) 5 SCC 558. 52 Robins v. National Trust Co., (1927) AC 515, 520; Huyton-with-Roby U.D.C. v. Hunter, (1955) 1 WLR 603.

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53 (1942) AC 154, 174. 54 Proof rests on he who affirms not he who denies. 55 P HIPSON ON E VIDENCE , 15th Edn. (2000), page 56 (para 4-03). 56 Ramabai v. Ramchandra, (1905) 7 Bom LR 293; Ali Khan Bahadur v. Indar Parshad, (1896) 23 Cal 950 : 23 IA 92; Sir Sobha Singh v. Bihari Lal Beni Parshad, ILR (1956) Pun 1247. 57 State of U.P. v. Sughar Singh, AIR 1978 SC 191 : 1978 CrLJ 141 : 1978 All LJ 466. 58 Mer Nagjam Aala v. Punja Kana, AIR 1981 Guj 141. 59 Prakash Chandra v. Managing Director O.R.T. Co., AIR 1980 Ori 122. 60 Sardar Malkeet Singh v. State, AIR 1993 All 343 (para 24) dissenting from Sarjerao Kondiba Sagar v. P.G. Karnik, AIR 1973 Bom 171. 61 V. Laxminarasamma v. A. Yadaiah, (2009) 5 SCC 478, 488 (para 36).

2. BURDEN OF PROOF AND ONUS OF PROOF --DISTINCTION There is an essential distinction between burden of proof and onus of proof; burden of proof lies upon a person who has to prove the fact and which never shifts. Onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. 62 A distinction exists between a burden of proof and onus of proof. The right to begin follows onus probandi . It assumes importance in the early stage of a case. The question of onus of proof has greater force, where the question is which party to begin. Burden of proof is used in three ways: (i) to indicate the duty of bringing forward evidence in support of a proposition at the beginning or later; (ii) to make that of establishing a proposition as against all counter evidence; and (iii) an indiscriminate use in which it may mean either or both of the others. 63 62 A. Raghavamma v. A. Chenchamma, AIR 1964 SC 136. 63 Anil Rishi v. Gurbaksh Singh, AIR 2006 SC 1971, 1974 (para 19) ) : (2006) 5 SCC 558.

3. APPEALS In an appeal the burden is on the appellant to prove how the judgment under appeal is wrong. He must show where the assessment has gone wrong. 64 Where a party accepts the burden which is laid upon it by the trial Court without any demur or protest and allows the case to proceed on that basis throughout the trial, it cannot, when it fails to discharge it, turn round and say in appeal that the burden should not have been placed upon it. 65 It was held by the Privy Council that where the burden of proof was wrongly placed on a party by the court, a serious prejudice would be caused to the party concerned and it is open to the superior court to decide the case by placing the correct burden of proof on the proper party. 66 It was held by the Supreme Court that an error in placing the onus of proof is a serious defect of procedure of sufficient gravity to justify interference by the appellate court if it is found that the finding of fact was the result of such a wrong approach. 67 However it has been held in some case that the finding of the lower appellate court cannot be assailed in second appeal on the ground of wrong placing of onus. 68 Remand is not necessary when entire evidence is before High Court in second appeal and by mistake the burden is wrongly placed which can be corrected in second appeal. 69 When all the relevant evidence has been given by the parties, the real matters for the appellate court to consider is whether the party on whom the burden lay has discharged it. 70

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Question whether onus is rightly placed on a party is a question of law.

71

Revision against an order refusing to change the onus of an issue is not maintainable.

72

In appeals under Sections 116-A of the Representation of the People Act , the court should normally attach importance to the findings of fact recorded by the tribunal when the said findings are given on the appreciation oral evidence.73 A concurrent finding of two courts below is a finding which is binding in appeal under Article 136 of the Constitution and the onus to prove that finding is erroneous is on the appellant. 74 64 Narbada Prasad v. Chhaganlal, AIR 1969 SC 393, 399 : 1969 (1) SCR 499. 65 Raman Lal v. Ram Gopal, (1954) 4 Raj 262 : AIR 1954 Raj 135; Kochil Pennu v. S. Krishnan, AIR 1952 Tro/co 185 relied on Jadu Nath v. Ramun Mal, AIR 1921 Lah 284 and Bishamdas v. Teruram, AIR 1934 Lah 1019; Gauri Shanker v. Deena Nath, 1974 Raj 238. 66 P.R. Jogi Reddy v. Chinnabhai Reddi, AIR 1929 PC 13; Fauj Mal v. Nathulal, AIR 1965 Raj 115; Md. Tahir v. Raghubar Dayal, 8 All LJ 736. 67 V. Ramachandra Ayyar v. Ramalingam Chettiyar, AIR 1963 SC 302. 68 Gouranga Panigrahi v. Sahadeb Panigrahi, ILR (1968) Cut 695; Abdul Sami v. Mohammad Noor, AIR 1966 All 39; Santu v. Sohanlal, AIR 1957 Pepsu 35(FB) ; Ramesh Chandra v. H.D. Jain College, AIR 1957 Pat 145; Jai Singh v. Gram Panchayat, AIR 1965 Punj 232; Nagori Ibrahim v. Shahjb Babumal, AIR 1954 Raj 83(FB) ; overruling in Shankar Lal v. Deena Nath, AIR 1951 Raj 79; Govind Rao v. Dattatraya Narayan, ILR (1974) Kant 1260; Relying on Shankarlal v. Deeno Nath, AIR 1951 Raj 79; Abdul Sam v. Mohd. Noor, AIR 1966 All 39; Prem Chand v. Laxmi Chand, AIR 1971 MP 124; Ranjit v. Nilambar, AIR 1978 Ori 48. 69 Nabakumar Singh v. Haridas Singh, AIR 1960 Mani 11; Janj Mal v. Nathulal, AIR 1965 Raj 115; Sarifan Bibi v. Dilwar Hossain, AIR 1975 Cal 211. 70 Ramachandra v. Daulat, 1951 MB 77; Anama v. Trilochom, AIR 1969 Ori 75; Chand Rama Singh v. Nawaratan Singh, AIR 1972 Pat 472. 71 J.K. Cotton Spg. & Wvg. Mills v. I.T. Commissioner, AIR 1967 All 513. 72 Sadhuram v. Ghansham Dass, AIR 1975 Punj 174(FB) . 73 Baru Ram v. Prasanni, AIR 1955 SC 244; Sarju Pershad Ramdeo Sahu v. Jawaleshwari Pratap Narain Singh, AIR 1951 SC 120. 74 K.R. Chinna Krishna Chettiar v. Ambal & Co., AIR 1970 SC 146; Sampat Ram v. Baboo, AIR 1955 All 24; Tajpal Singh v. Ganga Sahai, AIR 1952 All 808; Overruling another point in Abdul Rauf v. Mohd. Shafi, AIR 1956 All 337(FB) ; Devakka v. Giraddi, AIR 1956 Bom 99; Pannalal v. Sita Bai, AIR 1953 Nag 70; Des Raj v. Hargurdial Singh, AIR 1959 Punj 249; Reversing on another point in Hargudial Singh v. Des Raj, AIR 1963 Punj 25; Bharat Oil Industries v. I.T. Commissioner, AIR 1967 All 557; Rattan Chand v. Sharab Chhozam, AIR 1972 HP 87; Union of India v. Maqsood Ahmed, AIR 1963 Bom 110; Veera Raghava v. Kanslamma, 1957 Mad 403.

4. BURDEN OF PROOF IN CIVIL CASES In a suit for restraining defendants from entering upon disputed land and interfering with cultivation of plaintiffs, the onus of proving acquisition of permanent occupancy interest was on defendants who claimed that they had acquired occupancy rights over suit land under Madras Act . 75 Burden of proving sufficient ground for transfer is on applicant under Section 24,C.P.C. 76 The burden of proof is on the plaintiff who asserts a right and it may be, having regard to the circumstances of each case, that the onus of proof may shift to the defendant. 77 The plaintiff must establish his case and he will not automatically succeed merely because of the failure of the defendant to establish his case 78 but onus to prove claim need not be followed in all circumstances. The Court can take the evidence of a witness wishing to leave the jurisdiction of the Court on the ground of ill health, forthwith in the presence of the parties on the date fixed. It is not necessary that issues be framed or written statements filed, before taking oral evidence. 79

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At least the facts alleged in the plaint by the plaintiff are required to be proved by him even in an ex parte hearing to discharge the initial burden of proof. 80 Once the defendant admits to have received the notice under Section 80 of the Code of Civil Procedure , if the defendant alleges that the notice is not in accordance with Section 80 , CPC , it is for him to show to the court that it does not satisfy the requirements of law. 81 Whoever complains against the Railway Administration that the provisions of Section 28 have been contravened must establish that there has been preference between himself and his goods on the one hand and the competitor and his goods on the other. 82 Onus to prove the alleged unreasonableness of the freight rates is on the complainant. 83 Whenever it is necessary to prove any fact, in order to render evidence of any other fact admissible, the burden of proving that fact is on the person who wants to give such evidence. The illustrations explain the meaning of the section. A person seeking to recover possession has to prove that he was dispossessed within 12 years. 84 A father admitted that the girl whose legitimacy was in question was his daughter but that she was illegitimate. There being a presumption of legitimacy, burden lay upon father to prove otherwise. 85 Burden lies upon the plaintiff to prove all the points of the right of preemption. 86 In a case the plaintiff claimed half share in a house on the ground of being in joint possession and sought partition on the basis of a registered instrument and the defendant contended that the plaintiff had no right, title or interest in the said house and he was the sole owner and in exclusive possession thereof. The Courts below were satisfied with his explanation. It was held that burden lay heavily on the plaintiff to prove his case. 87 In a suit for possession, defendants claimed title over suit property by virtue of certain documents, the burden to prove validity of those documents was not on the defendants but burden to prove that those documents were tainted rested on the plaintiff alone. 88 Where the plaintiffs failed to discharge their burden of proving their case, decree cannot be passed in their favour on the basis of the weakness of the defence case. 89 Where the defendants have controverted the case pleaded by the plaintiff, it can only be positively proved by the plaintiff not negatively disproved by the defendants. 90 Where a suit for specific performance of contract was brought by the plaintiff with pleadings that the suit property was self-acquired property of the deceased and he executed the agreement to sell to meet family necessities, on denial of the same by the defendants, it was for the plaintiff to prove his case as pleaded in the plaint. 91 If the facts are admitted or, if otherwise, sufficient materials have been brought on record so as to enable a court to arrive at a definite conclusion, it is idle to contend that the party on whom the burden of proof lay, would still be liable to produce direct evidence. 92 Where the plaintiff landlord did not dispute his signatures on the back of the rent receipts, there was no further burden of proof on the defendant to lead additional evidence in proof of the writing on the rent receipts and its due execution. 93 In a case the plaintiff/landlord averred that signed blank stamp papers were given to the defendant/tenant to conduct the pending litigation and administration of the estate on his behalf. The burden was on the plaintiff to prove by leading evidence to show what were those pending litigations and also what was the occasion and necessity to sign the printed blank receipts at their back which were in possession of the tenant but he failed to do so. 94 Where a sketch map on scale produced by the plaintiff showing identity and location of the suit property was admitted by defendant's witness in his statement that it was in accordance with the spot position, it was held that the plaintiff had fully established the identity and location of the property and placing reliance on the statement of defendant's witness in that respect was held to be proper. 95 It is true that the plaintiff has to prove his case de hors the averment or the evidence adduced by the defendant but where cross suits were filed by both the plaintiff and defendant and were tried by the Court jointly and the evidence were led by both the parties, the principle of shifting the onus of proof would not arise and the matter was held to be considered on materials and documents available on record. 1 Where two cross suits were filed by the parties against each other, on the failure of the plaintiff in one suit to establish his case, the other party being plaintiff of other cross suit could not be entitled to succeed without proving his own case. In other words the plaintiff of the cross suit has to establish his own case by adducing sufficient evidence as burden to prove lies on him. 2

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This section should be read with clause (2) of Section 136 and with the illustrations attached to that section. 75 Rama Chandra Panda v. K. Dandapani Dorr, ILR (1966) Cut 874. 76 Lalita v. State of Bihar, AIR 1957 Pat 198. 77 K. S. Nanji & Co. v. Jata Shankar Doassa, AIR 1961 SC 1474. See also Bishwanath Rai v. Sachhidanand Singh, AIR 1971 SC 1949 : (1972) 4 SCC 707. 78 Nirakar Das v. Gourhari Das, AIR 1995 Ori 270 (para 7). See also K. Venkatasubba Reddi v. Bairagi Ramaiah, 1999 AIHC 2782 (para 11) (AP); Usha Beltron Ltd. v. Nand Kishore Parasramaka, AIR 2001 Cal 137; Bajranglal Shivchandrai Ruia v. Shashikant N. Ruia, (2004) 5 SCC 272, 294 (para 71) : AIR 2004 SC 2546; Sayed Mohd. Mashur Kunhi Koya Thangal v. Badagara Jumayath Palli Dharas Committee, (2004) 7 SCC 708, 715 (para 8) : AIR 2004 SC 4365. 79 Debadatta Pal v. Indumati Pal, 1996 AIHC 499(Ori) (para 3). 80 Hmangaihzuali v. C. Laldingi, AIR 2004 Gau 13, 16 (para 17) : 2003 (3) Gau LT 407. 81 Mast Ram v. Dy. Commr. Bharaiah, AIR 1968 All 321. 82 Raigarh Jute Mills Ltd. v. Eastern Railway, AIR 1958 SC 525. 83 Raigarh Jute Mills Ltd. v. Eastern Railway, AIR 1958 SC 525. 84 Kalooram v. Mangilal, AIR 1984 MP 147. 85 H.K. Shetty v. Renuka S. Shetty, AIR 1984 Bom 229. 86 Pyare Mohan v. Rameshwar, AIR 1980 Raj 116. 87 Gurmukh Ram Madan (Dr.) v. Bhagwan Das Madan, AIR 1998 SC 2776. 88 Paka Venkaiah v. Taduri Buchi Reddy, AIR 2005 NOC 31(B) (AP) : (2004) 4 Andh LD 889. 89 Ram Bhajan v. Abdul Rahman, AIR 1997 All 17. See also Govardhan P. Thakare v. Janardhan G. Thakare, 2005 AIHC 1276, 1279 (para 9) (Bom). 90 Heirs Kantilal Purshottamdas Patel v. Dahiben Jagdish Rathod, AIR 2003 Guj 82, 85 (para 9). 91 Khanderao Subbarao Nadagir v. Hulagavva, AIR 2003 Kant 354. 92 National Insurance Company Limited v. Rattani, (2009) 2 SCC 75, 79 (para 14). 93 Narbada Devi Gupta v. Birendra Kumar Jaiswal, (2003) 8 SCC 745 (para 17) : AIR 2004 SC 175. 94 Narbada Devi Gupta v. Birendra Kumar Jaiswal, (2003) 8 SCC 745 (para 18) : AIR 2004 SC 175. 95 Jagnarain v. Radhey Shyam Singh, AIR 2004 All 215, 217 (para 7) : 2004 All LJ 2071 : 2004 (1) All WC 395 : 2004 (1) All CJ 101 : 2004 Rev Dec 48. 1 T. Sesha Reddy v. Managing Committee, Jama Masjid, 2002 AIHC 1811, 1821 (para 51) (AP). 2 Mohammed Abdul Hammed v. Zulfikhar Ahmed, 2004 AIHC 2717, 2723 (para 16 & 17) (AP) relying on Sajana Granites v. Manduva Srinivasa Rao, 2002 (1) Andh LT 466.

5. MAINTENANCE PROCEEDINGS In a petition under Section 125,Cr.P.C., the extent of proof to establish marriage is not the same standard as is in a complaint of bigamy for offence underSection 494,I.P.C. 3 3 Kumari Bai v. Anandram, 1998 CrLJ 4100 (paras 7 and 16) (MP).

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6. BURDEN OF PROOF IN CRIMINAL CASES "Throughout the web of the English Criminal Law, one golden thread is always to be seen that it is the duty of the prosecution to prove the prisoner's guilt subject to the exception of the defence of insanity and subject also to the statutory exceptions". (Viscount Sankey Justice). 4 The fact that the defence case does not even seem to be reasonable, it would not mean that the prosecution case as correct because the prosecution must succeed on the strength and merits of its evidence 5 and not on absence of explanation or plausible defence by the accused. 6 In a criminal case, the prosecution has to discharge its onus of proving the case against the accused beyond reasonable doubt on the basis of acceptable evidence 7 and once it is established, the prosecution need not explain the injuries sustained by the accused 8 but where the prosecution case is not supported by reliable and cogent evidence, the accused is to be given the benefit of doubt. 9 The position remains the same even in a quasi-criminal charge of professional misconduct. 10 In criminal cases it is for the prosecution to bring the guilt home to the accused. It is not correct to say that when the prosecution has adduced such evidence as the circumstances and nature of the case require, it is for the accused to establish his innocence for the reason that there is no burden laid on the prisoner to prove his innocence and it is sufficient if he succeeds in raising a doubt as to his guilt. 11 In an accusatory system, such as that prevailing in India, it is for the prosecution to prove beyond reasonable doubt that the accused committed the offence; it is not for the Court to speculate as to how the crime has been committed. 12 It is for the prosecution to determine what witnesses it should call in support of its case. Witnesses essential to the unfolding of the narrative on which the prosecution is based must be called by the prosecution, whether in the result the effect of their testimony is for or against the case for the prosecution. 13 Where the injuries were sustained by the petitioner while in a police custody, the burden to explain the injuries lay on the police. 14 Prosecution cannot succeed just by showing that the defence raised is suspicious. 15 If the other circumstances point unfailingly to the guilt of the accused, the falsity of the defence can be considered as an additional link. The prosecution cannot be said to have proved as a result of failure of an accused person to prove his plea of alibi . 16 Infirmity in prosecution case can not be covered by false defence. 17 Accused need not make a statement if he does not want to. 18 Even total silence of the accused as to any defence on his part does not lighten the prosecution burden to prove its case satisfactorily. 19 The accused denied his guilt totally but produced no evidence in defence. Even so, the prosecution has to prove its case satisfactorily. The silence of the accused being of no consequences in this context. 20 No plausible criticism of the defence evidence of the failure of the accused to establish his innocence should be deemed as sufficient to discharge the burden on the prosecution. 21 In a criminal trial, the onus is upon the prosecution to prove the different ingredients of the offence and unless it discharges that onus it cannot succeed. 22 But where there was no evidence to show that the accused suffered the injuries in the same transaction, the prosecution was not bound to explain them. 23

Regarding the shifting of the legal burden, it is a fundamental principle of criminal jurisprudence that an accused is presumed to be innocent and the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. And that burden never shifts but when the accused pleads insanity under Section 84,I.P.C., or any of the exceptions contained in I.P.C., like right of private defenceetc. , it is the accused that has to prove the same, though the degree of proof on the accused is not as high on the prosecution and it would be sufficient for him to satisfy the test of a standard of a prudent man. 24 In criminal trial burden of proof never shifts to the accused. If a reasonable explanation is given by the accused it would be upto the court to acquit the accused. 25 Examining defence evidence first and then examining prosecution evidence is improper.

26

In a criminal case it is for the State to show that the accused persons have committed the offence with which they are charged. 27 Prosecution has to prove that the Court taking cognisance has territorial jurisdiction. 28 Burden to prove the negligence of licencee and his failure to take necessary steps is on

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prosecution. 29 To sustain an action under Sections 628 , Companies Act , the prosecution must show that false statements were made in the balance sheet knowing them to be false and with dishonest intention. 30 The position of a contemner being that of an accused person, whoever alleges that a contemner has disobeyed the orders passed by the court, has to prove that fact. 31 Where motive was set up by the prosecution it was for the prosecution to prove the same. 32 As against this heavy burden on the prosecution the accused can claim the benefit of his defence just by showing a balance of probabilities. He has not to prove his defence beyond a reasonable doubt. The prosecution proved in a case that an official had accepted a sum of money which was intended to be a bribe. The Supreme Court said that the accused must prove his justification and he can do so on a balance of probabilities and need not prove beyond reasonable doubt. 33 The burden on the accused is not as onerous as that which lies on the prosecution. While the prosecution is required to prove its case beyond reasonable doubt, the accused can discharge his onus by establishing a mere preponderance of probability. 34 Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances which he relies. 35 However, where the accused took the defence of 'total denial' and 'false implication', the doctrine of preponderance of probability had no application. 36 While it is true that burden is heavy on the prosecution to prove every ingredient of the offence, while the defence has only to probabilise the defence taken, there must be some material on record to support the defence plea and probabilise its case. In the instant case, the defence took the plea that the accused also received injuries in the same incident which remained unexplained by the prosecution but the defence adduced no evidence as to those injuries nor it made any suggestion as to it to the victim or to the prosecution witnesses. 37 The onus of proving all the ingredients of offence lies on the prosecution and at no stage it shifts to the accused. Even if the defence of the accused does not appear to be credible or is palpably false, that burden of prosecution does not become any the less. 38 When the accused pleaded that the confession was the result of torture onus to prove torture is on him. 39 Burden is on the accused to prove that the confessional statement was obtained by threat, duress or promise and if he is able to prove the facts creating reasonable doubt that the confession was not voluntary or was obtained by threat, coercion or inducement etc., the burden would be on the prosecution to prove that the confession was made by him voluntarily. 40 It is one thing for an accused to attack a dying declaration in a case where the prosecution seeks to rely on a dying declaration against an accused but it is altogether different where an accused relies upon a dying declaration in support of the defence of accidental death. The burden on the accused is much lighter. He has only to prove reasonable probability. In the instant case, the fact whether the dying declaration is false and concocted has to be established by the prosecution. It is not for the accused to prove conclusively that the dying declaration was correct and the story therein was not concocted. 41 The accused must be presumed to be innocent until the prosecution has been able to establish the charge against him beyond reasonable doubt and the presumption as to innocence must continue even in an appeal against acquittal. In a criminal case there is no burden on the accused to prove his innocence. 42 An accused for discharging the burden of proof placed upon him under a statute need not examine himself. He may discharge his burden on the basis of the materials already brought on record. An accused has a constitutional right to maintain silence and for proving the defence he is not required to step into the witness box. 43 Neither Section 103, nor Section 106 can absolve prosecution from discharging its general or primary burden of proving its case beyond reasonable doubt. It is only when prosecution has led evidence which if believed will sustain conviction, or makes out a prima facie case, that the question arises of considering of whether the burden of proof may lie upon the accused. 44 A criminal case is a 'proceeding' within the meaning of Section 102 and the burden of proof in such a proceeding lies on the prosecution for the simple reason that if neither the prosecution nor the defence leads evidence, the accused is entitled to be acquitted. 45 In cases where the evidence is of such a nature that conclusion cannot be arrived at as to who started the fight or how the quarrel started, the benefit of doubt should be given to the accused. 46

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If the prosecution evidence as a whole is unreliable and cannot be accepted as correct and if the accused is silent with regard to his defence, then the court ought not to treat the case as positively proved beyond reasonable doubt, only for reason of the failure of the accused to put up his defence immediately when he was confronted. 47 In a case under Section 411 , it is not upon the accused to prove how he came to possess the property which is said to be stolen property. 48 In India arsenic is used as medicine in all types of diseases. Mere fact that arsenic was detected is not sufficient to prove conclusively that death was due to arsenic poisoning. Prosecution should prove that a lethal dose of arsenic, that is two grains or upwards, had been administered. 49 The prosecution has to make out that the cessation of accused from duty was intentional under , But in an ordinary case, where no other special circumstances appear on the record, the court might well assume cessation as a fact was intentional cessation. Where, however, other circumstances appear, the requisite intention has to be clearly made out. 50 Where a person voluntarily makes a statement about his criminal act ivities and he neither repudiates nor offers any reasonable explanation, it would be conclusive against him. The opposite side has no burden to establish truth of such a statement. 51 In a case where death is due to injuries or wounds caused by a lethal weapon, it is always the duty of the prosecution to prove by expert evidence that it was likely or at least possible for the injuries to have been caused with the weapon and in the manner in which they are alleged to have been caused. It is elementary that where the prosecution has a definite or positive case, it must prove the whole of the case. 52 When administration of poison is proved by prosecution the burden is on the accused to prove that his intention was different, since it is especially within the knowledge of the accused. 53 In a cheating case for work not done, if there is a finding that works to which the claim related were not carried out at all, then there is no burden on the prosecution to establish that the appellant had personal knowledge of the bogus nature of his claim. 54 It is for prosecution to prove that an act is not negligent but was deliberate and intentional.

55

When accused violated order under Section 144,Cr.P.C., denying knowledge of the orders, then the prosecution must prove circumstances from which accussed's knowledge can be inferred. Onus is then on accused to prove ignorance of order despite publication. 56 If an application for cancellation of bail, it is not necessary for the prosecution to prove by a mathematical certainty or even beyond a reasonable doubt that the witness have turned hostile because they are won over by the accused. 57 In considering whether a public officer is guilty of his misconduct charged against him, the rule followed in criminal trial that an offence is not established unless proved by evidence beyond reasonable doubt to the satisfaction of the court, does not apply.

58

In an offence of cheating and false evidence the burden will never shift to the accused and if an accused gives a reasonable explanation, then the jury have to take that into account and though they are not convinced about the truth, they should acquit the accused. 59 Failure of accused to cross-examine witnesses does not discharge burden of proof on prosecution.

60

Burden of proving "just ground" for claiming maintenance under Section 125(3),Cr.P.C. lies on wife. 61 When an able bodied husband failed to maintain his wife and children, it is for him to show that he is incapable of doing so. 62 Burden of proof rests on person who alleges that a particular witness is an accomplice.

63

In cases where possession of a certain article itself is an offence, the Court shall presume the existence of culpable mental state in the accused, then the onus of proof is placed on the accused to prove that he did not knowingly possess the article. 64 Where the prosecution established the case so as to raise the presumption of dowry death under Section 113-B, it was the defence to discharge the onus of rebutting the presumption by adducing evidence that it was an accidental death. 65

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The objection that the Court erred in placing the onus on the accused to prove that he had submitted the budget in time to the Majlis, cannot be considered when the Court had clearly stated in the judgment that apart from onus, it was satisfied that the prosecution had fully established on the evidence that the accused had failed to send a copy of the budget as required by law. 66 The onus on an accused is not as heavy as that of the prosecution. It may be compared with that on a defendant in a civil proceeding. 67 Where the statute provided that a certain offence should not be investigated without authorization by the police officer not below the rank of Superintendent of Police and the same is questioned, the burden undoubtedly is on the prosecution to prove such authorization. 68 4 Woolmington v. Dir of Public Prosecutions, 1935 AC 462; Charku v. State, AIR 1960 AP 153; R v. U. Damapala, AIR 1937 Rang 83(FB) . 5 Rajendra Singh v. State of U.P., 1984 CrLJ 1164; Md. Hussain v. State, (1957) 7 Raj 440; Roy & Co. v. Nani Bala, 1979 Cal 50; Vira Reddy v. Kistamma, 1969 Mad 235; Bansidhar Gangu Prasad v. Chaman Lal, (1975) 1 Del 445; Jairamdas v. State, AIR 1956 Bom 426; Chhotan v. State, AIR 1959 Pat 362; Prosecution cannot take advantage of weaknesses of defence or inconsistent stand taken by accused, M.S. Reddy v. State Inspector of Police, A.C.B., Vellore, 1993 CrLJ 558 (para 64) (AP). See also Toran Singh v. State of M.P., AIR 2002 SC 2807 (para 8) : (2002) 6 SCC 494 : 2002 CrLJ 3737. 6 Toran Singh v. State of M.P., 2002 CrLJ 3737(SC) (para 8). 7 State (Delhi Admn.) v. V.C. Shukla, AIR 1980 SC 1382; Babu Singh v. State of Punjab, (1964) 1 CrLJ 566(SC) ; Harchanda v. Rex, AIR 1950 All 355; Basanta Goham v. State, AIR 1957 Assam 45; S.C. Mitter v. State, AIR 1950 Cal 435; Gandap Bhimanna v. State of Hyderabad, ILR (1956) Hyd 636; Phankari v. State, AIR 1965 J&K 105; Rajiwali v. State, AIR 1959 J&K 66; State of Kerala v. Devassay, (1964) 1 CrLJ 101(Ker) ; Gangaram v. State of Rajasthan, (1965) 2 CrLJ 574(Raj) ; Surendra Chandra v. Raghunath Sil, AIR 1964 Tri 62; Satya Mali v. State, AIR 1964 Ori 173; Sita Ram v. State, AIR 1968 All 207; Risi Kesh Singh v. State, 1970 All 51(FB) ; Sucha Singh v. State of Punjab, (2003) 7 SCC 643 (para 20) : AIR 2003 SC 3617 : 2003 CrLJ 3876; Mousam Singha Roy v. State of W.B., (2003) 12 SCC 377; Ouseph v. State of Kerala, (2004) 4 SCC 446, 448 (para 10). 8 Prithvi Nath Pandey v. State of U.P., 1994 CrLJ 3623 (para 26) (All), relying on Hare Krishna Singh v. State of Bihar, AIR 1988 SC 863 : 1988 CrLJ 925. 9 George v. State, 1996 CrLJ 1755 (para 28) (Mad). 10 H.V. Panchaksharappa v. K.G. Eshwar, AIR 2000 SC 3344 (para 6). 11 Mangi Lal v. State, (1953) 3 Raj 706; In re : M. Rangarajulu, AIR 1958 Mad 368; Chhotan v. State, AIR 1959 Pat 362; Kishore Chandra Patel v. State, AIR 1993 Ori 259 (paras 100, 101 and 104); Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra, (2005) 5 SCC 294, 325 (para 62) : AIR 2005 SC 2277 : 2005 CrLJ 2533; Mahender Singh Dhaiya v. State (CBI), 2003 CrLJ 1908, 1930 (para 54) (Del) : 2003 (102) Del LT 592 : 2003 (66) Del RJ 616. 12 Gandap Bhimanna v. State of Hyderabad, ILR (1956) Hyd 636. 13 Seneviratne v. King, (1936) 39 Bom LR 1 PC. 14 M. Latchumanan v. Union Territory of Pondichery, 2005 CrLJ 1691, 1700 (para 23) (Mad). 15 J.A. Naidu v. State of Maharashtra, 1979 CrLJ 962(SC) ; Jagdish v. Rajasthan, AIR 1979 SC 1010 : (1979) 3 SCR 428; where the prosecution would not explain injuries on the person of the accused which were caused at the time of occurrence; Shanker Lal v. State of Maharashtra, AIR 1981 SC 765, falsity of defence does not establish prosecution case; State of Punjab v. Bhajan Singh, AIR 1975 SC 258, suspicion, however strong, cannot take the place of proof. 16 Tiak v. State of U.P., AIR 1974 SC 155; Sharad Biridhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622; Anam Pradhan v. State, 1982 CrLJ 1585(Ori) ; Shankerlal Gyarasilal Dixit v. State of Maharashtra, 1981 CrLJ 325(SC) : AIR 1981 SC 765; Bharadwaj Singh v. State, AIR 1952 Cal 616; Leo Frad Lobo v. State, AIR 1967 Goa 60; Ravi Shanker v. State of Gujarat, AIR 1966 Guj 293. 17 Subedar v. State, AIR 1957 All 396. 18 Rajendra v. State of U.P., 1984 CrLJ 1164; Roy & Co. v. Nani Bala, 1970 Cal 50; Md. Hussain v. State, (1957) 7 Raj 440; Vira Reddy v. Kistamma, 1969 Mad 235; Bansidhar Ganga Prasad v. Chamanlal, (1975) 1 Del 445; Jairamdas v. State, 1956 Bom 426; Chhoton v. State, 1959 Pat 362. 19 Bishan Das v. State of Punjab, AIR 1975 SC 573; Jose v. P.C. Roy, AIR 2008 (NOC) 2784(Ker) .

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20 Bishan Dass v. State of Punjab, AIR 1975 SC 573. 21 Sreedhar Marar v. State, AIR 1965 Ker 196 relying on Sher Raja Khima v. State, 1956 SC 217. See also Makar Bhoi v. State, AIR 1951 Ori 357; D.B. Deshmukh v. State, AIR 1970 Bom 438; Jose v. P.C. Roy, AIR 2008 (NOC) 2784(Ker) . No adverse inference can be drawn for the non-production of evidence by the accused. Motia v. Government, AIR 1951 Raj 123. 22 Kali Ram v. State of H.P., AIR 1973 SC 2773; SL. Goswami v. State of M.P., AIR 1972 SC 716; Baidyanath Prasad Srivastava v. State of Bihar, AIR 1968 SC 1393; I.T. Commr., Central Calcutta v. Standard Vaccum Oil Co., AIR 1966 SC 1393; Sajjan Singh v. State of Punjab, AIR 1964 SC 464; Tukaram v. State of Maharashtra, (1979) 1 SCR 810 : AIR 1979 SC 185; In re : Shaik Server AIR 1957 AP 1006; Sahadat Ali v. State, AIR 1957 Assam 35; Samad Malik v. State of J&K, AIR 1953 J&K 1; Chacko Mathai v. State of Kerala, AIR 1964 Ker 222; D. Ramasubba Reddy v. Ramdas, 1970 CrLJ 83(AP) ; Nisar Ali v. State of U.P., AIR 1957 SC 366; Dataxiva Naique Desai v. State, AIR 1967 Goa 4; Public Prosecutor v. J. Pullamma, 1970 CrLJ 276(AP) ; Anam Pradhan v. State, 1982 CrLJ 1585; State v. Kolis Hira, AIR 1961 Guj 8; following in Jumman v. State of Punjab, AIR 1957 SC 469; Dissending from Sebastian David v. Sirkar Prosecutor, AIR 1950 TC 9; Omkarlal v. Stat of M.P., 1987 CrLJ 1289; State of Gujarat v. S.P. Nair, ILR (1965) Guj 784; Balbir Singh v. State, 1959 Punja 332. 23 V. Viswambharan v. State of Kerala, 1994 CrLJ 1522 (para 26) (Ker). 24 Dahyabhai Chhaganbhai Thakkar v. State of Gujarat, AIR 1964 SC 1563. 25 In re : O BULA N AIDU , (1964) 2 CrLJ 78(AP) ; Nisith Chandra Ghose v. State of West Bengal, (1961) 1 Cal 119; Relying on Woolmington v. DPP, 1935 AC 462; Shew Moni Shav v. State, AIR 1953 Cal 634. 26 State of Rajasthan v. Sher Singh, 1994 CrLJ 904 (para 14) (Raj), relying on Moti v. State, (1962) 12 Raj 383 : 1962 Raj LW 448 and Gajendra Singh v. State of U.P., AIR 1975 SC 1703 : 1975 SCC 499(Cri) : 1975 CrLJ 1494 (para 3). 27 State v. Sohanlal, AIR 1956 Punj 159. 28 M.N. Adhkari v. Food Inspector, AIR 1965 Ker 295. 29 State of Mysore v. P.C. Sarangipani Mudaliar, AIR 1960 Mys 245. 30 Dhirendra v. Tripura Administration, 1963 CrLJ 559(Tri) . 31 Punjab High Court v. S.M. Mathur, (1976) 6 Tax LR 303. 32 Paramjit Singh v. State of Punjab, 1998 CrLJ 2600 (para 24) (P&H). 33 M.P. Gupta v. State of Rajasthan, AIR 1974 SC 773; Asokan v. State of Kerala, 1982 CrLJ 173; Gurucharan Singh v. State, 1993 CrLJ 1622 (para 16) (Del); N.P. Lotikar v. C.B.I., 1993 CrLJ 2051 (para 31) (Bom). See further under section 106. See also G.M. Natarajan v. State, 1995 CrLJ 2728 (paras 10 and 11) (Mad). 34 Pratap v. State of U.P., AIR 1976 SC 966; M.P. Gupta v. State of Rajasthan, AIR 1974 SC 773; Krishna Biharilal v. State, AIR 1956 MB 86; Ouseph v. State of Kerala, (2004) 4 SCC 446, 448 (para 10); Balwan Singh v. State of Haryana, (2005) 11 SCC 245, 251 (para 12); Krishna Janardhan Bhat v. Dattatraya G. Hegde, (2008) 4 SCC 54, 63 (para 34). 35 Krishna Janardhan Bhat v. Dattatraya G. Hegde, (2008) 4 SCC 54, 63 (para 34). 36 Girja Prasad v. State of M.P., (2007) 7 SCC 625, 635 (para 31) : AIR 2007 SC 3106 : AIR 2008 SC 1325. 37 Nasir Sikander Shaikh v. State of Maharashtra, AIR 2005 SC 2533 (paras 6 and 7) : (2005) 10 SCC 585 : 2005 CrLJ 2621. 38 S.L. Goswami v. State of M.P., AIR 1972 SC 716. 39 Dharma Singh v. Manipur State, AIR 1952 Mani 2. Loss of a thing can never be proved absolutely. Relying on Basanth Singh v. Brij Raj Saran, AIR 1935 PC 132. 40 K.I. Pavunny v. Asst. Collector (HQ), Central Excise Collectorate, (1997) 3 SCC 721 : 1997 SCC 444(Cri), following Bhagwan Singh v. State of Punjab (I), AIR 1952 SC 214 : 1952 SCR 812. 41 Gaffar Badshaha Pathan v. State of Maharashtra, (2004) 10 SCC 589, 594 (para 5) : 2004 SCC 2037(Cri) . 42 State of Assam v. Bhabananda Sarma, 1972 CrLJ 1552(Assam) ; In re : Natarajan, AIR 1966 Mad 357; Pershadi v. State, 1955 All 443Harchanda v. Rex, AIR 1950 All 355; Bharath Kumar v. State of Gujarat, 1982 CrLJ 1314(DB) (Guj);

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Joseph v. State of Kerala, (1964) 1 CrLJ 493; Gopi Ram v. State, AIR 1954 MB 21; State of M.P. v. Babulal, AIR 1958 MP 55; Public Prosecutor v. A. Thomas, AIR 1959 Mad 166; In re : Rangaraju Naidu, AIR 1958 Mad 368; Public Prosecutor v. I.C. Lingaiah; In re : Shivaanna, AIR 1955 Mys 17; Shangara Singh v. State, AIR 1964 Punj 400; Bhagwanbhai Dulabhai Jadhav v. State of Maharashtra, (1963) 2 CrLJ 694(SC) ; State v. Debnu, AIR 1957 HP 52; N.S. Gandiwal v. State of M.P., 1961(1) CrLJ 670 (MP); Manilal v. State of Orissa, 1969 CrLJ 992(Ori) ; Bobetim Ministeria de Justica Ministerio Publico v. Filomeno Jaoquim Gregorio Desouza; Relying on Y.D. Jhingan v. State of U.P., AIR 1966 SC 1762; K.P. Raghavan v. M.H. Abbas, AIR 1967 SC 740; Keval Ram v. Shri Ram Saran, ILR (1981) 31 414; State of Bihar v. Surajdeo Bai, (1972) 51 Pat 205; State of H.P. v. Butinath, AIR 1957 HP 37. 43 Krishna Janardhan Bhat v. Dattatraya G. Hegde, (2008) 4 SCC 54, 62 (paras 32 and 31). 44 Sawal Das v. State of Bihar, AIR 1974 SC 778; Shambhu Nath v. State of Ajmer, AIR 1956 SC 404, 406 (para 11) : 1956 CrLJ 794. 45 Parbhoo v. Emperor, 1941 All 402; State of Orissa v. Chakradhar Sahu, 1983 CrLJ 532(Ori) . 46 Rama v. State of Hyderabad, ILR (1952) Hyd 354. 47 Zhringlee Ariel v. State of M.P., AIR 1954 SC 15; Khurkhur v. State of Allahabad, AIR 1970 All 198(FB) . 48 Ahibaran Singh v. State, 1953 All 493. 49 State v. Fateh Bahadur, AIR 1958 All 1. 50 S.A.A. Biyabani v. State of Madras, AIR 1954 SC 645. 51 Emperor v. Surjya Kumar, AIR 1934 Cal 221(SB) . 52 Mohinder Singh v. State, AIR 1953 SC 415; Bhagoji v. Hyderabad Government, AIR 1954 Hyd. 196. 53 Arundhati v. State of Orissa, 1968 CrLJ 848(Ori) . 54 Bakshish Singh v. State of Punjab, AIR 1967 SC 752. 55 D.B. Naik v. State of Maharashtra, 1982 CrLJ 856(Bom) . 56 Emperor v. Afaq Hussain, AIR 1941 All 70(FB) . 57 State (Delhi Admn.) v. Sanjay Gandhi, AIR 1978 SC 961. 58 State of A.P. v. Sree Rama Rao, AIR 1963 SC 1723. 59 Sudhdeo v. State of Bihar, AIR 1957 SC 466. 60 Narbhaisingh Haruasingh v. State, ILR 1966 Bom 407; Comes under Section 101, as well as general. 61 A.S.N. Nair v. Sulochana, 1981 CrLJ 1898(Ker) . 62 Chander Prakash v. Shila Rani, AIR 1968 Del 174. 63 Kamini Kumar v. State, AIR 1971 Tri 26. 64 Gopaldas Udhavdas Ahuja v. Union of India, (2004) 7 SCC 33, 51 (para 18) : AIR 2004 SC 3830. 65 N.V. Stayanandam v. Public Prosecutor, High Court of A.P., (2004) 10 SCC 769, 772 (para 5) : AIR 2004 SC 1708. 66 Bashiruddin Ashraf v. State of Bihar, AIR 1957 SC 645, 648 (para 5). 67 M.S. Narayana Menon v. State of Kerala, (2006) 6 SCC 39, 54-55 (para 45) : AIR 2006 SC 3366. See also V. Venkata Subbarao v. State, (2006) 13 SCC 305, 311 (para 25). 68 State Inspector of Police v. Surya Sankaram Karri, (2006) 7 SCC 172, 177 (para 13 and 14).

7. REVERSE BURDEN Reverse burden as also statutory provisions can be raised in several statutes such as the Negotiable Instruments Act, the Prevention of Corruption Act , the Terrorist and Disruptive ActivitiesAct . A

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presumption is raised only when certain foundational facts are established by the prosecution. The accused in such an event would be entitled to show that he had not violated the provisions of the Act. A legal provision does not become unconstitutional only because it provides for a reverse burden. The presumption is rebuttable one. 69 Save and except those cases where the Parliamentary statutes apply the doctrine of reverse burden, the courts should not employ the same which per se would not only be violative of Universal Declaration of Human Rights but also the fundamental rights of an accused as envisaged under Art. 21 of the Constitution. 70 The House of Lords considered whether it would be compatible with Art. 6(2) of the [English] Human Rights Act 1998 which reads 'Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law....' to interpret provisions of the [English] Misuse of Drugs Act, 1971 as imposing on a defendant the burden of proving that he was unaware that the contents of a bag in his possession were prohibited drugs. They decided that it would not. All members of the House expressed the view that the presumption of innocence required by Art. 6(2) was not absolute but that a departure from presumption must be justifiable. 71 The House of Lords derived support for this view from the decision of the Strasbourg Court which held that 'a legislative interference with the presumption of innocence requires justification and must not be greater than is necessary. The principle of proportionality must be observed'. L ORD H OPE of Craighead observed that Art. 6(2) i.e. presumption of innocence of the accused, is not absolute and unqualified and the test to be applied is whether the modification or limitation of the same pursues a legitimate aim and whether it satisfies the principles of proportionality. The principle to be applied requires a balance to be struck between the general interest of the community and the protection of the fundamental rights of the individual. To achieve this, the reverse onus must not go beyond what is necessary to accomplish the objective of the statute. 72 In another case, the House of Lords held that a reverse burden of proof imposed by Sections 92 of the [English] Trade Marks Act 1994 was compatible with the said Art. 6(2). LORD N ICHOLLS of Birkenhead observed that derogation from the presumption of innocence required justification. The more serious the punishment which may flow from conviction, the more compelling must be the reasons. The extent and nature of the factual matters required to be proved by the accused, and their importance relative to the matters required to be proved by the prosecution, have to be taken into account. So also does the extent to which the burden on the accused relates to the facts which, if they exist, are readily provable by him as matters within his own knowledge or to which he has ready access. 73 L ORD B INGHAM of Cornhill reviewing and summarising the authorities observed: From this body of authorities certain principles may be derived. The overriding concern is that a trial should be fair, and the presumption of innocence is a fundamental right directed to that end. The convention does not outlaw presumptions of fact or law but requires that these should be kept within reasonable limits and should not be arbitrary. It is open to states to define the constituent elements of a criminal offence, excluding the requirements of mens rea. But the substance and effect of any presumption adverse to the defendant must be examined, and must be reasonable. Relevant to any judgment on reasonableness or proportionality will be the opportunity given to the defendant to rebut the presumption, maintenance of the rights of the defence, flexibility in application of the presumption, retention by the court of a power to assess evidence, the importance of what is at stake and the difficulty which a prosecutor may face in the absence of a presumption. Security concerns do not absolve member states from their duty to observe basis standards of fairness. The justifiability of any infringement of the presumption of innocence cannot be resolved by any rule of thumb, but on examination of all the facts and circumstances of the particular provision as applied in the particular case. The task of the court is never to decide whether a reverse burden should be imposed on a defendant, but always to assess whether a burden enacted by Parliament unjustifiably infringes the presumption of innocence. 74 69 Seema Silk & Sarees v. Directorate of Enforcement, (2008) 5 SCC 580 (paras 18, 19 and 20) : AIR 2008 SC 2564, relying on Hiten P. Dalal v. Bratindranath Banerjee, (2001) 6 SCC 16 : 2001 SCC 960(Cri) and M.S. Narayana Menon v. State of Kerala, (2006) 6 SCC 39 : (2006) 3 SCC (Cri ) 30 : AIR 2006 SC 3366. 70 Harendra Sarkar v. State of Assam, AIR 2008 SC 2467, 2471 (para 44) : (2008) 9 SCC 204. 71 R v. Lambert, [2001] 3 All ER 577 : [2002] 2 AC 545. 72 Salabiaku v. France, (1988) 13 EHRR 379 (para 88).

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73 R. v. Johnstone, [2003] 3 All ER 884 : [2003] 1 WLR 1736 (para 50). 74 Sheldrake v. DPP, [2005] 1 All ER 237 : [2005] 1 AC 264 (paras 21 and 31), applied in R v. Keogh, [2007] 3 All ER 789 and held that the Official Secrets Act , 1989 can operate effectively without the presumption of reverse burden thatSections 2(3) and 3(4) of the Act would impose according to their natural meaning. To accord them that meaning would be disproportionate and unjustifiable. Because those sub-sections, if given their natural meaning, are incompatible with Art 6 of the human rights convention, they should be 'read down' by applying a similar interpretation to that achieved by Section 118 of the Terrorism Act, 2000.

8. ALIBI When it is the question of an alibi , it is not a case, of proving the existence of circumstances bringing the case within any of the general exceptions or special exceptions of the Indian Penal Code, and therefore, Sections 105 of the Indian Evidence Act , does not apply. The section applicable isSection 103 illustration of which specially mentions the case of plea of alibi and provides that it is for the accused who pleads alibi to prove it. 75 Burden to prove plea of alibi is on accused pleading it. 76 Burden is on the accused who is setting up defence of alibi to prove it but even so, the burden of proving the case against the accused is on the prosecution irrespective of whether or not the accused have made out plausible defence. 77 Onus is on accused to substantiate plea of alibi and make it reasonably probable. 78 Where the accused pleads that he was elsewhere at the time of incident, the burden to prove the same lies on him. Though burden is not as heavy as on the prosecution to prove its case beyond reasonable doubt, the defence of alibi can be probabilised also. The false plea of alibi cannot destroy the prosecution case which is supported by direct and unshaken evidence of the eye-witnesses. 79 Where the accused pleaded alibi as they were present in their office till 5 p.m. which was at a distance of about 40 miles from the scene of occurrence taking place at 7 p.m., their presence at the scene of occurrence was held to be doubtful. 80 75 Yusuf S.K. v. State, AIR 1954 Cal 258; State v. Sashibhushan, (1963) 1 CrLJ 550(Ori) . 76 State of Haryana v. Sher Singh, AIR 1981 SC 1021; Dalel Singh v. Jag Mohan Singh, 1981 CrLJ 667(Del) ; State of U.P. v. Sughar Singh, AIR 1978 SC 191; Chandrika Prasad Singh v. State of Bihar, AIR 1972 SC 109; D.B. Deshmukh v. State, AIR 1970 Bom 438; Yaduram v. State, 1972 CrLJ 1464(J&K) ; relying on Sarat Chandra v. Emperor, AIR 1934 Cal 719; Parbhoo v. Emperor, AIR 1941 All 402. Also see Amir Hossain v. State of Tripura, 1998 CrLJ 4315, at page 4323 (Gau); Chandrika Prasad Singh v. State of Bihar, AIR 1972 SC 109; State v. Murugan, 2002 CrLJ 670, 673 (para 19) (Mad) : 2001 (2) Mad LW (Cri) 815; Rajendra Singh v. State of U.P., (2007) 7 SCC 378, 385-86 (para 8) : AIR 2007 SC 2786. 77 Gurcharan Singh v. State of Punjab, AIR 1956 SC 460; Narendra Singh v. State of M.P., (2004) 10 SCC 699, 708 (para 31) : AIR 2004 SC 3249 : 2004 CrLJ 2842. 78 State of U.P. v. Snghar Singh, AIR 1978 SC 191; Chandrika v. State, AIR 1972 SC 109; Satyovir v. State, AIR 1958 All 746; Bindeshwari Singh v. State, AIR 1958 Pat 12. 79 State of Gujarat v. Miyame Abraham Mamed, 2004 CrLJ 3471, 3485 (para 19) (Guj). 80 Dharam Singh v. State of Punjab, 1993 CrLJ 150 (para 9) (SC); Nallamsetty Yanadaiah v. State of A.P., 1993 CrLJ 408 (para 7) (SC).

9. GAMBLING OFFENCES Prosecution must prove that "Muddemal slips" (a code word) contain a record of betting transactions or were in any manner connected with betting in American futures. It is for prosecution to explain how bets in American futures are recorded and satisfy the court that the slips seized were part of the record. 81 81 Harakchand v. State, AIR 1954 MB 145.

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10. NEGLIGENCE Burden is on prosecution which could have easily obtained necessary information, whether the vehicle had been granted a permit and what were its conditions. 82 Onus of proof that accused drove rashly and negligently is on the prosecution; 83 but where the nature of impact clearly demonstrates that the vehicle was being driven rashly or negligently, the burden of proof was on the driver to prove otherwise. 84 In a suit for loss, damage or non-delivery of goods, filed against the carriers, the plaintiff is not required to prove negligence ordinarily. The burden is on the defendant carrier to prove that there was no negligence on his part. 85 Where a car, which was travelling on a sufficiently wide cemented & tar road bordered by a six feet wide Kacha road and there being no obstruction or vehicle on the road, hit a roadside tree after leaving the cemented and kacha road, and the report of motor vehicle Inspector was that the accident did not occur due to any mechanical fault in the vehicle, it would prima facie be presumed that the accident occurred due to the negligence of the driver of the car and the burden would be on the driver of the car to explain how the accident occurred without the negligence on his part. 86 Contributory negligence.-- Where in an accident a pedestrian was killed, the burden to prove contributory negligence of the deceased pedestrian to establish by cogent evidence was held to be on the owner of the vehicle or on the insurance company and it could not be presumed that the deceased had tried to take risk. 87 82 State v. K. Kesavan, AIR 1959 Ker 161. 83 Gangadhara Rao v. G. Ganga Rao, AIR 1968 AP 290; Seethamma v. Benedict D' SA, AIR 1967 Mys 11. 84 Cholan Roadways Ltd. v. G. Thirugnanasambandam, (2005) 3 SCC 241 (paras 20-22 and 26) : AIR 2005 SC 570, relying on Pushpabai Purshottam Udeshi v. Ranjit Ginning & Pressing Co. (P.) Ltd., (1977) 2 SCC 745 : AIR 1977 SC 1735; Sarla Dixit v. Balwant Yadav, (1996) 3 SCC 179; Divisional Controller, KSRTC (NWKRTC) v. A.T. Mane, (2005) 3 SCC 254 : AIR 2005 SC 4761; Karnataka SRTC v. B.S. Hullikatti, (2001) 2 SCC 574 : AIR 2001 SC 930 and Thakur Singh v. State of Punjab, (2003) 9 SCC 208. 85 Karnataka Transport Corporation v. National Insurance Bank Ltd., AIR 1999 Kant 233 (paras 15, 19 and 20). 86 Keshavamurthy v. State, 2002 CrLJ 103, 104 (para 2) (Kant) : 2001 AIR Kant HCR 2978 : 2002 (1) ACC 427 : 2002 (1) All CrLR 545 : 2002 (2) Crimes 132 : ILR (Kant) 2001 (2) Kar 5657. 87 Oriental Insurance Co. Ltd. v. Ullasini N. Kamble, 2002 AIHC 1181, 1987 (para 11) (Kant).

11. OFFENCE UNDER Section 182, PENAL CODE In regard to an offence under Section 182 , burden is on the prosecution to show the accused believes the information to be false. 88 88 Fakirapa Ningappa v. State, AIR 1960 Mys. 208.

12. DISCRIMINATION The burden to prove the charge of discrimination and arbitrary use of power by the Collector in granting compensation in land acquisition proceedings is on the party making it. 89 89 Uttam Singh v. State of Punjab, 1998 AIHC 547 (para 18) (P&H).

13. DEFAMATION AND LIBEL

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It is for accused to establish that the source of information on which he act ed was proper source on which he was entitled to act and that he did so with care and circumspection. 90 If court accepts the plaintiff's contention that the publication is per se defamatory, the question whether it amounts to libel or not is one for court to decide and not for the plaintiff to prove by adducing evidence. 91 The defendant must not only raise the plea in his written statement but also prove it strictly by leading evidence that the defamatory remarks about the plaintiff were true. Onus to prove justification always lies on the defendant. 92 90 Dongarshing v. Krishan, AIR 1957 MP 162; Ramdas v. Raja, AIR 1958 Raj 257. 91 Balakrishna Kar v. H.K. Mahatab, AIR 1954 Ori 191. 92 Radha Krishen v. H.S. Bates, AIR 1953 All 302.

14. CONTEMPT OF COURT As regards the burden, the common legal phraseology "he who asserts must prove" has its due application in the matter of proof allegations said to be constituting the act of contempt. 93 93 Chhotu Ram v. Urvashi Gulati, 2001 CrLJ 4204 (para 2) (SC). See also Mrityunjoy Das v. Sayed Hasibur Rahaman, (2001) 3 SCC 739 : AIR 2001 SC 1293 : 2001 CrLJ 1702; Anil Ratan Sarkar v. Hirak Ghosh, (2002) 4 SCC 21 (paras 13 and 14) : AIR 2002 SC 1405 : 2002 CrLJ 1814.

15. OFFENCE UNDER SECTION 420, PENAL CODE In the case of an offence of cheating it is for prosecution to prove that at the time the accused entered into the transaction with the complainant, he had no intention to pay the money and that he was actuated by dishonest intention to cheat the complaint. 94 From the fact that the ornaments are recovered at the instance of the accused, inference cannot be drawn that the accused must have murdered the deceased. Onus lies on the prosecution to prove its case. 95 In a suit based on an alleged hand loan the burden is and will be on the plaintiff to make out that the alleged hand loan is true, that he did in fact advance the money representing the loan to the defendant on condition of repayment. 96 94 Veeranna v. Mastan Sab, AIR 1960 AP 311. 95 Nagappa Dondiba v. State of Karnataka, 1980 SC 1753; In re : Kaliaperumal, AIR 1954 Mad 1088; Ahi Baran Singh v. State, 1953 All 493; In re : M. Daveed, 1959 AP 157; Paramananda Mahapud v. State of Orissa, 1970 CrLJ 931(Ori) . 96 Satyanarayana v. Sree Ramulu, AIR 1961 AP 461.

16. STOLEN PROPERTY Onus to prove that the accused was in possession of stolen property is to be first discharged by prosecution. Burden is cast upon the accused to explain the circumstances under which he came into possession. 97 If the accused pleads that the earlier statement made by him in committal court was made under police pressure, the burden lies on the accused to establish it. 98 Where the prosecution could not prove beyond a reasonable doubt that the accused was connected with the destruction of a film, the accused was given the benefit of doubt 1 . Recovery of articles by

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itself does not connect anybody with the crime. Connection of the accused with the articles must be proved beyond a reasonable doubt. 2 97 Abdul Kareem v. State of Mysore, 1972 CrLJ 217(Mys) ; Sathian v. State of Madras, 1971 CrLJ 1635(Mad) ; Public Prosecutor (AP) v. Shaik Galib, 1975 CrLJ 952(AP) . 98 Bhagwan Singh v. State of Punjab, AIR 1952 SC 214. 1 State (Delhi Admn.) v. V.C. Shukla, AIR 1980 SC 1382 at 1390. 2 Nagappa Dondiba Kalar v. State of Karnataka, AIR 1980 SC 1753.

17. SANCTION Where a party desires to challenge the complaint on the ground of authority, it is for him to show that there is absence of any requisite authority to prosecute. For that purpose the court can look into and examine orders duly passed. 3 Burden of showing that requisite sanction was obtained is on prosecution and such burden includes proof that the sanctioning authority had given sanction with reference to the facts on which the prosecution is based. 4 In order to take away the protection provided under Section 132,Cr.P.C. to persons performing their duties, the onus is on complainant to show that accused did not act under Chapter 9 of Cr.P.C. 1898 (Chapter of Cr.P.C., 1973) and therefore not entitled to protection underSection 132,Cr.P.C. 5 Prosecution has to prove that sanctioning authority was competent to sanction prosecution and had applied its mind to the facts of the case. When the acts constituting the offence are not appearing in the order, sanctioning prosecution, it must prove the same by other evidence. 6 When an accused person pleads Section 197, Criminal P.C. as a bar to his trial it is for him to prove the facts which bring that section into operation. 7 3 Sailendranath v. State of Calcutta, AIR 1955 Cal 29; Prabhakar v. Shankar, AIR 1967 Goa 121; Noohar v. Public Prosecuter, 1975 CrLJ 1304(Ker) . 4 State of M.P. v. Hiranand, AIR 1958 MP 2. 5 V.D. Yesudasan v. Gurusamy, AIR 1957 Mad 555; Kirpal Kuar v. Bachan Singh, AIR 1958 SC 199; Ghulam Rasul v. Hasib Ullah, AIR 1959 J&K 28; Padam Nath v. Prithvi Nath, AIR 1957 J&K 53; Lala v. Rasula, AIR 1957 J&K 3; Ramzan v. Hatji, AIR 1951 J&K 12; P.K. Nayar v. Ranghat, ILR 1959 Ker 1068; V. Ramarao v. K. Bhaskararao, AIR 1969 SC 1359; Dasarathi Misra v. Bahgirathi Misra, 1977 Cut 608; Matiram v. Sukma Bai, AIR 1960 MP 46; Subramanian Chettiar v. Khmaroppa Chettiar, AIR 1955 Mad 144; N.B. Gurung v. Anil Krishna, AIR 1957 Mani 25; Abid Ali Khan v. Secretary of State, AIR 1951 Nag 327; following in Sarnon v. Sahu, AIR 1935 Lah 93; Jogendra Nath v. Caharan Das, AIR 1958 Ori 160; Bhikari v. Madan Mahan Jiu, AIR 1953 Ori 73; Rafail Uraon v. Baiha Uraon, AIR 1957 Pat 70; Jitendra Pratap v. Bhagwati Prasad, AIR 1956 Pat 457; Kirpa Singh v. State, AIR 1954 Pepsu 28; Atma Ram v. Chambeli, AIR 1953 Punj 211; National Bank v. Bai Brothers, 1951 Punj 239; Amar Chand v. Shankari, 1956 Raj 51; Bharat Singh v. Raj Singh, (1951) 1 Raj 645; overruled on another point in Nagori Ibrahim v. Shahji Babumal, 1954 Raj 83(FB) ; Kanku v. Khrsiti, ILR (1967) Guj 1003(FB) ; Maro v. Paras Ram, AIR 1966 HP 22; Neelakntha Roy v. State, ILR (1968) Cut 611; Langa v. Jaba, AIR 1971 Pat 185; Kirit Bikram v. G. Kishore, AIR 1968 Tri 11; Gopendra Krishan v. Mrinalini Basu, (1975) 1 Cal 156; Mumtaz Begum v. S.A. Ullah Khan, 1973 J&K 28; Shantilal Baldota Co. v. Collector of Central Excise, Bombay, ILR (1979) Bom 329. 6 State v. Banshilal Luhadia, AIR 1962 Raj 250. 7 Jatindra Lal v. N.C. Dev. Barman, AIR 1957 Tri 18; Relying on H.T. Huntlay v. Emperor, AIR 1944 Pat 378; Jacob v. Jabcob, 1949 Pat 108.

18. SEXUAL OFFENCE Prosecution has to prove beyond doubt that the girl was below 16 years of age and the burden is heavy when the girl was used to sexual intercourse. 8

476

In a rape case burden of proving the consent of the victim is on the accused. It is not for the victim to show that there was no consent on her part. 9 The burden is on the prosecution to prove each and every ingredient of the offence, absence of the consent being one of them. 10 Where the inference of guilt of an accused person is to be drawn from circumstantial evidence alone, those circumstances must be established beyond reasonable doubt and they should point towards the guilt of the accused. 11 Where a rapist confessed his guilt in writing in the presence of his parents and elders allegedly under coercion or inducement, onus of establishing coercion or inducement would be on the accused. 12 8 Md. Hussain v. State, (1957) 7 Raj 440; State v. Kala, AIR 1957 HP 42. 9 State of H.P. v. Shree Kant Shekari, AIR 2004 SC 4404 (para 15) : (2004) 8 SCC 153. 10 Uday v. State of Karnataka, (2003) 4 SCC 46 (para 21) : AIR 2003 SC 1639 : 2003 CrLJ 1539. 11 Kantu Chhagan v. State of Gujarat, 1982 CrLJ 1110(Guj) . 12 S. Krishna v. State of Kerala, 1998 CrLJ 785 (para 8) (Kant).

19. CUSTODIAL DEATH In Shakila Abdul Gafar Khan v. Vasant Raghunath Dhoble, 13 the Supreme Court observed that the Govt. and the legislature must give serious thought to the recommendations of the Law Commission in its 113th Report to amend the Evidence Act to the effect that the Court might presume, in case of a custodial death of a person, that the injuries, if proved to have been caused during the custody period, were caused by the police official in whose custody that person was unless proved to the contrary and onus to prove to the contrary must be discharged by the police official concerned. 14 13 (2003) 7 SCC 749 (para 8) : AIR 2003 SC 4567 : 2003 CrLJ 4548. 14 See also Munshi Singh Gautam v. State of M.P., (2005) 9 SCC 631 (paras 6, 7 and 8) : AIR 2005 SC 402 : 2005 CrLJ 320.

20. PREVENTION OF CORRUPTION ACT Before placing reliance on the prosecution under Sections 4(i) of Prevention of Corruption Act of 1947 it is the duty of the prosecution to first prove the basic facts on which the prosecution rests. The burden of proving the case squarely rests on the prosecution and this burden can not be diluted simply because the charge is underSection 4(i) of the Act. Section 101 of the Evidence Act is equally applicable to such cases. 15 In a criminal trial, for conviction of person for possession of assets disproportionate to his income, the prosecution need not disapprove all possible source of his income. 16 Once the ingredients of Sections 13(1) (e) of the Prevention of Corruption Act , 1988 are established by the prosecution the burden shifts on the accused to show that the prosecution case is not correct. 17 The Prevention of Corruption Act , 1988, under itsSection 13(1)(e) deliberately casts a burden on the accused not only to offer a plausible explanation as to how he came by his large wealth, but also to satisfy the Court that his explanation was worthy of acceptance. 18 In a prosecution under Prevention of Corruption Act , there are discrepancies in the oral evidence of the complaint with regard to demand of money, it could be said that the prosecution had failed to prove vital part of its case and thereby the accused is entitled for acquittal. 19 In a criminal trial in order to prove a change of criminal misappropriation under the Prevention of Corruption Act , if the nature of burden of proof on the prosecution is of a negative character, then the burden can be discharged by circumstantial evidence.20

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Where prosecution alleges that the accused accepted or agreed to accept or attempted to obtain any gratification or valuable thing--the presumption under Section 4 will be made against the accused. This does not mean that the burden of the prosecution to establish acceptance of gratification is displaced by the section--the burden still remains on it. This proof must be in accordance with standard of proof laid down in Section 3, Evidence Act . 21 It is for the prosecution to prove by positive evidence that the accused obtained the thing from a person who is known to be related to the concerned person. 22 Where some matter is presumed by the statute against an accused person "unless the contrary is proved" within Sections 5(3) , Prevention of Corruption Act (1947), the burden of proof required is less than that required at the hands of the prosecution in proving the case beyond a reasonable doubt and the burden of proof may be discharged by evidence satisfying the court of the probability of that which the accused is called upon to establish.23 The words of statute are pre-emptory and the burden must lie all the time on the accused to prove the contrary. 24 The degree and the character of the burden of proof which Sections 4(i) of Prevention of Corruption Act casts as an accused person to rebut the presumption thereunder, cannot be equated with the degree and character of proof which under Section 101, Evidence Act rests on the prosecution while the mere possibility of an explanation given by the accused is his examination underSection 342of old Cr.P.C., 1973) may not be enough, the burden on him to negate the presumption may stand discharged, if the effect of the material brought on the record, in its totality, renders the existence of the fact presumed in probable.25 The burden of proof lying upon the accused under Sections 4(i) of the Prevention of Corruption Act will be satisfied if he establishes his case by a preponderance of possibilities as is done by a party in civil proceedings; it is not necessary that he should establish his case by the test of proof beyond a reasonable doubt.26 15 State (Del.) Admn. v. Satish Chand, 1987 CrLJ 1205(Del) ; C.I. Emden v. State of U.P., AIR 1960 SC 548; overruling on State v. Abkey Singh, AIR 1957 Raj 138; Hayati Usha v. State, AIR 1967 Goa 11(FB) ; Rameshwar Prasad v. State of Rajasthan, 1979 CrLJ 484(Raj) . 16 State of Maharashtra v. Wasudeo Ramchandra, AIR 1981 SC 1186. 17 V.K. Puri v. Central Bureau of Investigation, (2007) 6 SCC 91, 97 (paras 13 and 14) : 2007 CrLJ 2929. 18 State of M.P. v. Awadh Kishore Gupta, (2004) 1 SCC 691, 697 (para 7) : AIR 2004 SC 517 : 2004 CrLJ 598. 19 Anantray Lalji v. State of Gujarat, 1982 CrLJ 1883(Guj) ; Relying on Hari Dev v. State of Delhi, 1976 CrLJ 1176(SC) ; Panalal v. State of Maharashtra, AIR 1979 SC 119 : 1979 CrLJ 936; Khembu Ram v. State of H.P., 1972 CrLJ 381(HP) . 20 Hargan Sunder Das Godeja v. State of Maharashtra, AIR 1970 SC 1514; State of H.P. v. Mirza Hussain Beg, AIR 1954 HP 33; Gopiram v. State, AIR 1954 MB 21; Sumandar Singh v. State, (1956) 6 Raj 942. 21 Sanjib Kumar v. Principal, St. Paul's College, AIR 1951 Cal 524; State of Gujarat v. Mardhavbhai, AIR 1964 Guj 206; Kunhi Mohammed v. State, AIR 1959 Ker 88; Sree Krishnanarayana Rao v. Republic of India, AIR 1958 Ker 136; Deonath Dudhnath v. State, 1967 Bom 1; Om Dutt Sharma v. State, AIR 1960 All 470. 22 Urbasi Dharvoni v. Chandra Dharaa Satturn, 1956 Ori 201. 23 G.V. Nair v. Govt. of India, (1963) 1 CrLJ 675(Ker) . 24 C.S.D. Swami v. State, AIR 1960 SC 7 (para 7) : 1960 CrLJ 131. 25 Trilok Chand Jain v. State of Delhi, AIR 1977 SC 666; Following in Mahesh Prasad Gupta v. State of Rajasthan, AIR 1974 SC 773. 26 V.D. Jhingan v. State of U.P., 1966 SC 1762; Relying on Woolmington v. Director of Public Prosection, 1935 AC 462. Rex v. Carr Briant, (1943) 1 KB 607; Harbhajan Singh v. State of Punjab, AIR 1966 SC 97.

21. OFFENCE UNDER SEA CUSTOMS ACT

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Mere knowledge that goods are smuggled goods is sufficient. It is not necessary for the prosecution to establish not only that the accused knew that goods were smuggled, but that he took some act ive part in the smuggling, thereby indicating the intention to avoid payment of duty or evade restriction. Mere possession is sufficient. 27 27 Asst. Collector of Customs Cal v. Sitaram, AIR 1966 SC 955; Reversing in Sitaram Agarwal v. State, AIR 1962 Cal 370. See Abdul Ali v. State, AIR 1950 Assam 152--possession must be conscious possession.

22. OFFENCES RELATING TO ESSENTIAL COMMODITIES ACT That possession of kerosene stock is for sale without licence must be proved by the prosecution. 28 Burden is on prosecution to prove that the commodity which was being exported was uncleaned turdal . It is not for accused to prove that the commodity was not uncleaned turdal . 29 It was held onus was on prosecution to prove beyond reasonable doubt that Khesari Dal kept in shop of accused was for sale for human consumption. 30 Burden to prove that the accused is a dealer within the definition is on prosecution. 31 Under Section 15, Essential Supplies (Temporary Powers) Act, where any person is prosecuted for contravening any order made under Section 3 which prohibits him from doing an act without a permit, the burden of proving that he had such a permit shall be on him. 32 Burden to prove that the food grains are for sale lies on person who stores foodgrains. 33 When prosecution failed to prove that the delay had no relation to incriminating excess percentage in damaged grains, it could be presumed that the sample may have been infested with fungus during that period. In such cases, the accused can be given benefit of doubt under Sections 13 of the Prevention of Food Adulteration Act.34 28 Kundanlal v. State, AIR 1953 MB 175; Jethalal v. State, AIR 1968 Guj 163. 29 Shrinivasa Pannalal v. State of M.P., AIR 1954 SC 23. 30 Sita Dalcuani v. Rama Chandra Nahak, ILR 1967 Cut 593. 31 Kalipada Nandi v. State, AIR 1950 Cal 427; In re : Balaraman, 1973 CrLJ 1887(Mad) . 32 Shrinivas Pannalal v. State of M.P., AIR 1954 SC 23. 33 R.P. Gupta v. State, AIR 1967 Ori 29. 34 Bhagat Stores Panaji v. State, 1982 CrLJ 444(Goa) .

23. PREVENTIVE DETENTION An order of detention can only be challenged on ground of malice, the defence must establish mala fides on the part of the Government to secure his release. 35 Burden lies on the detenu to prove that the conduct in passing a fresh order of detention is mala fide . 36 The initial burden has always been on the detenue to show that the order is liable to be quashed. This burden is not discharged by merely saying that he does not know why he was detained. 37 Onus is initially upon the State to prove that the detaining authority was satisfied in respect of the necessity. 38 35 Subba Rao v. State, AIR 1967 AP 202. 36 Anand Mohan Trivedi v. Superintedent Central Jail Agra, (1967) 1 All 22. 37 Mrs. Bharti Nayyar v. Union of India, (1977) 2 Del 23. 38 Hari Singh v. State, AIR 1951 Pepsu 126.

479

24. COMPANY RESOLUTION Where a resolution of a company was signed by its Chairman, it was held that it was for company to disprove that what was properly recorded in a resolution did not represent the correct position. 39 Burden to prove that list of share holders was forwarded to Registrar in time is on the company.

40

39 Bharat F&G Insurance v. P.P. Gupta, AIR 1968 Del 68. 40 Bankatlal v. State of Hyderabad, AIR 1954 Hyd 49.

25. CLAIM CASES In a suit for claiming exemption under Sections 16(1)Provident Funds Act , the burden of establishing that the exemption under the section applied to the particular establishment is on the plaintiff. 41 In a suit for loss, damage or non-delivery of goods, filed against the carriers, the plaintiff is not required to prove negligence ordinarily. The burden is on the defendant carrier to prove that there was no negligence on his part; 42 but the burden of proving that the plaintiff has suffered damages and the measure of damages, is squarely on the plaintiff. 43 In a case of claim of compensation due to an accident on account of negligent driving, the driver of the jeep took a plea that during relevant time the jeep was in workshop. The burden to prove the same was held to be on the driver by producing record of workshop and log book of the jeep. 44 Regarding the pecuniary loss in accident cases, the burden is certainly on the plaintiffs to establish the extent of their loss. 45 In an accident claim case, the claimant, a gratuitous passenger claimed compensation on the basis of the comprehensive insurance of the vehicle but the insurer declined to produce the policy. It was held that the burden to produce the same was on the owner of the vehicle and not the claimant, he being not in possession of the same. 46 41 Suyaji Mills Ltd. v. P.A. Bhasker, AIR 1970 Bom 418. 42 Karnataka Transport Corporation v. National Insurance Bank Ltd., AIR 1999 Kant 233 (paras 15, 19 and 20). 43 Draupadi Devi v. Union of India, (2004) 11 SCC 425, 454 (para 79) : AIR 2004 SC 4684. 44 Jagmit Kaur v. Union of India, 2003 AIHC 496, 499 (para 7). 45 Gobald Motor Service Ltd. v. R.M.K. Veluswami, AIR 1962 SC 1. 46 Anu Sunar v. Shri N.P. Sharma, AIR 2007 Gau 151, 153-54 (para 8).

26. EVACUE PROPERTY ACT Burden of proving property to be composite property is on custodian.

47

47 R.L. Aggarwal v. Darshanlal, AIR 1960 Punj 612.

27. BIHAR MONEY LENDERS' ACT In a suit for recovery of loan without registration as money lender under the Bihar Money Lenders' Act, the burden to prove that the suit is maintainable without registration is on the plaintiff. 48 48 Fula Devi v. Mangtu Maharaj, AIR 1969 Pat 294(FB) .

480

28. BOMBAY RENT ACT The burden of proving availability of ground of eviction under Section 13(1)(g) of the Bombay Rents Hotel and Lodging House Rates Control Act 57 of 1947 lies on the landlord; and the burden of proving greater hardship than that of the landlord so as to deprive him of his established right to seek eviction lies on the tenant. 49 49 Badrinarayan Chunilal Bhutada v. Govindram Ramgopal Mundada, (2003) 2 SCC 320 (para 7) : AIR 2003 SC 2713 : (2003) 2 SCC 320.

29. A.P. LAND REFORMS (CEILING ON HOLDINGS) ACT Burden to prove that alienations prior to 24-1-1971 were to be ignored since neither the A.P. Land Reforms (Ceiling on Holdings) Act, 1973 nor the A.P. Agricultural Lands (Prohibition of Lands) Act, 1972 bars such alienations, was on the landlord. 50 50 Meria Venkata Rao v. State of A.P., AIR 1994 SC 471 (para 2).

30. KARNATAKA LAND REVENUE ACT Where the petitioner's contention was that the land granted under Karnataka Land Revenue Act to certain category of persons on payment of full market price of the land and the restriction for fifteen years on alienation of such land was not applicable, it was held that it was the petitioner who had to take a specific plea in this regard in his pleadings and the burden was upon the petitioner to prove the same by cogent and positive evidence.51 51 Nirvanappa v. Dy. Commr. Hassan District, Hassan, 2005 AIHC 271, 273 (paras 13 & 14) (Kant).

31. MADRAS ESTATES LAND ACT The onus of proving that the suit lands were private lands and not Ryoti land, was held to be on the plaintiff and he had to rebut the presumption under Section 185 of the Act that the lands in the Inam village were not private lands. 52 52 T.S.P.L.P. Chidambaram Chettiar v. T.K.B. Satyanaramaswami, AIR 1968 SC 1005, 1010.

32. MADRAS ALIYASTHAMA ACT The onus to prove that all the four pre-requisite conditions of Section 36(6) of Madras Aliyasthama Act (9 of 1949) are satisfied by the deed, is on the defendant who asserts it. 53 53 Gummanna Shetty v. Nagaveniamma, AIR 1967 SC 1595.

33. T.N. SLUM AREAS (IMPROVEMENT AND CLEARANCE) ACT In a case of eviction, the tenants took the plea that the building was situated in a slum area and as such was protected from eviction under Section 29 of the T.N. Slum Areas (Improvement and Clearance) Act. The landlady denied it. The Court held that the burden to prove that the said property was situated in a slum area would be on the tenants. 54 54 Neelakantan v. Mallika Begum, AIR 2002 SC 827 (para 8) : (2002) 2 SCC 440.

481

34. URBAN LAND (CEILING AND REGULATION) ACT Where the owner of the land in question pleaded it to be agricultural land, burden to prove the same was on him. 55 Where the petitioner filed the return under Section 6 of the Urban Land (Ceiling and Regulation) Act (33 of 1976) showing the land owned and possessed by him, the burden was held to be on the state to establish, if it wanted to add any more extent to his account, to show that extent sought to be added was also owned and possessed by the petitioner. 56 55 M. Subraya Prabhu v. State of Karnataka, 2000 AIHC 1972 (para 6) (Kant). 56 Vithal Purushottam Dandekar v. State of Bihar, 2004 AIHC 4639, 4640 (para 3) (Jhar).

35. EXEMPTION TO RULER Application by Ruler to examine himself as his own witness on commission-- claim of right as Ruler to be exempted from personal attendance--Burden of proving it is on Ruler. 57 The plaintiff who wants to take advantage of an exception to a statutory bar, must clearly prove that his case is covered by the exception. 58 57 Abdul Alim Khan v. Sagarmal, AIR 1963 MP 162. 58 Noor Mahammad v. Haridas, 1950 Pat 140; Bhola Singh v. State, AIR 1972 Pat 412.

36. JUDGEMENT-DEBTOR Burden of proof is on judgment-debtor to satisfy the Court that his circumstances are such as to justify the grant of instalments in a particular manner. 59 59 Arjun Charan v. Sukhdev Saboo, ILR 1963 Cut 787.

37. INSOLVENCY ACT Burden is heavy on the official receiver who seeks to impeach the insolvency to prove that it was suffered by the debtor with a view to give preference to a creditor. 60 Upon a true construction of Section 35 of the Travancore Insolvency Regulation (8 of 1090) the onus of proof is on the Official Receiver to prove that a conveyance which he is seeking to set aside, is not made in good faith and for valuable consideration. 61 See Travancore Cochin Insolvency Act. 60 P.K. Velco v. Official Receiver, AIR 1968 Ker 186; Reversed on another point in I.T. Officer v. Subramania, AIR 1970 Ker 14. 61 N. Subramania Iyer v. Official Receiver, AIR 1958 SC 14 (para 4).

38. EXECUTION OF DECREE Onus is on the party alleging the discharge of a decree debt to prove the same.

62

Burden is on party alleging abandonment of execution petition to prove the same.

63

482

Onus to bring case within one or more clauses of proviso to Section 51,C.P.C. is on decree-holder as the judgement-debtor can not waive the privilege conferred on himviz., Section 51 of C.P.C.64 Enforcement of decree against legal representative.-- A decree for payment of money was passed against a person who was dead at the time of execution. The decree holder Bank put the decree in execution against the legal representative (LR), his wife and the proceeds against the property. It was held that the burden was on the LR/wife to show that she had not received the property attached by the Bank from the deceased husband. 65 62 Bharat Pictures Ltd. v. U.P. Chongani, 1954 Bhopal 30. 63 Sreenivasulu v. Nataraja, AIR 1955 Mad 461. 64 Jogendra Missir v. Ramnandan Singh, 1968 Pat 218; A.K. Subramania v. A. Ponnuswami, AIR 1957 Mad 777. 65 Sandhya Sisodiya v. Syndicate Bank, AIR 2007 MP 228, 229-30 (para 7).

39. INDUSTRIAL DISPUTES ACT When union of majority of workmen takes act ion on behalf of a workman, the presumption is that the action is taken in a representative character with the support of its members. It is for the company (employer) to prove that the members of the union are not behind the union. 66 In order to prove that the reserves and funds shown in the balance sheet were act ually utilised by the company as working capital, burden is on the employer company. A bare availability of the reserves and funds for being utilised as working capital is not sufficient to claim a return. 67 In rehabilitation cost deduction from all available funds, the onus is on the company employer, which has necessary information to explain from its account and other data that a certain amount is not available for rehabilitation. 68 Since it is employer who seeks replacement cost, it is employer who has to satisfy the Industrial Tribunal as to what will be the overall cost of replacement and it is cost of replacement only and does not include any expansion of machinery and the employer has to discharge this burden by adducing proper evidence and by giving opportunity to the other party to cross-examine and merely bringing the balance-sheet on record for instance, would not be enough. 69 In order to challenge an order of retrenchment, burden lies on the employee to prove that he had worked for 240 days in the preceding twelve months prior to his alleged retrenchment. 70 66 Management of the Hindustan Times Ltd. v. Chief Commissioner, Delhi, AIR 1957 Punj 102. 67 Workmen Hindustan Motors v. Hindustan Motor, AIR 1968 SC 963, 980. 68 N.E. Industries v. Workmen, AIR 1968 SC 538. 69 N.E. Industries v. Workmen, AIR 1968 SC 538, 547. 70 Municipal Corporation, Faridabad v. Siri Niwas, AIR 2004 SC 4681 (para 14).

40. AGRICULTURAL RELIEF ACT Party seeking relief under Bombay Agricultural Relief Act has to show that he is an agriculturist.

71

Where a party claimed to be an agriculturist within meaning of Section 2, U.P. Agriculturist Relief Act, why under the proviso to that section, he is deprived of the status has to be proved by the opposite party. 72 Sections 9 of the Karnataka Debt Relief Act , casts burden on the creditor to prove that the person claiming benefit of the Act is not a debtor. 73 71 Abehsang v. Dhirajlal, AIR 1956 Bom 215. 72 Kishan Chand v. Ram Basu, AIR 1965 All 65(FB) .

483

73 Narayini Anma v. Kochu Pillai, AIR 1987 Ker 171.

41. CENTRAL SALES TAX ACT Where the question was whether a sale was inter-state or not under Sections 6A of the Central Sales Tax Act , 1956, the initial burden to prove that the movement of goods had occasioned otherwise than by reason of sale, was on the dealer.74 74 Ashok Leyland Ltd. v. State of T.N., AIR 2004 SC 2836 (para 46) : (2004) 3 SCC 1.

42. ELECTRICITY ACT The onus of proving of the fact that the prosecution has been instituted at the instance of one of the persons mentioned in Section 50 of the Act, is on the prosecution. 75 75 Avtar Singh v. State of Punjab, AIR 1965 SC 666 (para 10) : 1965 (1) CrLJ 605.

43. PARTITION ACT In a suit for partition filed by plaintiff claiming the suit properties as ancestral one, the burden to prove the same lies on the plaintiff but once preliminarily it is proved that suit properties are ancestral, then the burden shifts on the shoulders of the adverse party to disprove the contention of the plaintiff to the effect that they are not ancestral but the self acquired properties of the deceased. 76 In a suit for partition, a party pleaded that all joint family properties were not joined in the suit. Burden to prove the said fact would be on that party. 77 76 V.D. Rangachari v. Mythili, 2003 AIHC 550, 556 (para 27). 77 Suman Balkrishna Zodge v. Alaka Suresh Zodge, AIR 2008 (NOC) 2481(Bom) : 2008 (4) AIR Bom R 595.

44. RENT ACT S Mere acceptance of amount equivalent to rent by a landlord from a tenant in possession after a lease had been determined by a notice to quit and who enjoys statutory immunity from evidence because of the Rent Act, cannot be regarded as evidence of a new agreement of tenancy. 78 Onus to prove that land was 'accommodation' covered by Section 2(a), U.P. (Temp) Control of Rent and Eviction Act, 1947, is on tenant claiming protection of Section 3 of the Act. 79 In an eviction proceeding on the ground of bona fide need of landlord, burden lies upon him to establish that he genuinely requires the accommodation 80 and to avail the protection against eviction on the ground that no other suitable building was available in the locality for the tenant to shift his business, burden to prove the said fact was on him 81 and merely because tenant did not lead any evidence, the landlord would not be relieved of burden of proving of the same. 82 Where in an eviction proceeding on the ground of bona fide need, the landlord showed to be in possession of only one room which was not sufficient for his entire family whereas the tenant pleaded that the landlord was in possession of three rooms instead, the burden was on the tenant to prove his plea and not on the landlord to prove that he was not in occupation of three rooms. 83 In deciding the bona fide need of the premises under the occupation of the tenant, the Court will only consider whether such need is fanciful or not. If the element of requirement is fanciful, onus cannot be shifted from landlord to tenant and if the requirement of landlord crosses the line of fancy, the onus to prove is shifted from the landlord to the tenant to make a defence about continuity of the occupation. Inspite of the same, if the tenant fails to make a defence the onus cannot be reshifted to the landlord. 84 The Bombay High Court

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has also held that it is open to the Court to presume the reasonable and bona fide need of the landlord and put the onus on the tenant to establish otherwise. 85 Where a landlord files an eviction petition on the ground of sub-letting, the burden of proving the parting with the possession in favour of a third party by the tenant lies on the landlord and on his discharge of the initial burden, onus shifts on the tenant to explain. 86 In a non-residential premises, the father/the tenant, carried on his cloth business in the front portion and the son carried on his act ivities as a UTI agent in the rear portion partitioned with wooden frame. The tenant claimed that his son's possession in that portion was not exclusive but permissive whereas the landlord succeeded in establishing the fact of the son's exclusive possession. It was held that it was for the son to establish that his possession on that portion of the premises was not as a sub-tenant and merely because he was the son of the tenant, there could be no justification in saying that it was not a case of sub-letting. 87 In a case of eviction of tenant on the ground of sub-letting, the landlord is expected only to establish the presence of sublessee in the tenanted premises with whom landlord has no jural relationship but the burden is entirely on the tenant to establish the jural relationship between him and sub-lessee. 88 Onus to prove his plea that the suit premises was not vacated by him would be on the tenant 89 and also to prove that he is a tenant and not a licencee. 90 To prove that the tenant has ceased to occupy the premises, the burden lies on the landlord and once the landlord has discharged it, it is for the tenant either to rebutt the landlord's case or prove a reasonable cause for ceasing to occupy the tenancy premises, failing which the tenant would be liable to be evicted. 91 The burden to prove whether petitioner had let or had intended to let the building or a part thereof to the state Government, lies on the petitioner and not on the State Government. 92 Where a person applied for the allotment of a house which was allotted to some other person on the ground that the allottee had constructed his own house and the allotted house was in disuse, it was held that the burden of proving that the allottee was not residing in the allotted house, was on the person alleging the same. 93 78 Mohanlal v. Siri Krishan, AIR 1978 Del 92; Relying on Bhawanji Lakhamshi v. Hinatlal Jamnadas Dani, AIR 1972 SC 819 : (1972) 1 SCC 388. 79 Abdul Sami v. Mohammad Noor, AIR 1966 All 39. 80 S.J. Ebenezer v. Velayudhan, AIR 1998 SC 746 (para 11). See also Kishan Chand v. Jagdish Pershad, (2003) 9 SCC 151 (paras 6 and 7). 81 Scariah Kuncheria v. K.A. Riyas, 1999 AIHC 1924 (paras 10, 15 and 17) (Ker). 82 Heera Lal v. Mandir Shri Thakurji Sangria, 2005 AIHC 2578, 2582 (para 20) (Raj). 83 Dhondiba Vithalrao Jagtap v. Parubai Malhari More, 1999 AIHC 2119 (para 4) (Bom). 84 Provarani Chakraborty v. Gouri Mukherjiee, 2004 AIHC 2296, 2302 (para 12) (Cal). 85 Shankar Bhairoba Vadangekar v. Ganpati Appa Gatare, 2001 AIHC 3483 (paras 23 and 24) (Bom). 86 Kala v. Madho Parshad Vaidya, AIR 1998 SC 2773. See also Joginder Singh Sodhi v. Amar Kaur, (2005) 1 SCC 31 (paras 13, 14, 17-19), following Bharat Sales Ltd. v. LIC of India, (1998) 3 SCC 1 : AIR 1998 SC 1240; Rajbir Kaur v. S. Chokesiri & Co., (1989) 1 SCC 19 and relying on Associated Hotels of India Ltd. v. S.B. Sardar Ranjit Singh, (1968) 2 SCR 548 : AIR 1968 SC 933; Shama Prashant Raje v. Ganpatrao, (2000) 7 SCC 522 : AIR 2000 SC 3094. Burden is discharged by proving exclusive possession of sub-tenant, Mahendra Saree Emporium (II) v. G.V. Srinivasa Murthy, (2005) 1 SCC 481, 490 (para 16) : AIR 2004 SC 4289. 87 Kailash Chander v. Om Prakash, (2003) 12 SCC 728 (para 5). 88 M.V. Vipinchandran v. N.G. Zavier, 2006 AIHC 317 (para 5). The High Court relied on Gajanan Dattatraya v. S.H. Patel, AIR 1975 SC 2156. 89 Hardit Singh Chadha v. Jagtar Singh Grover, AIR 1994 Del 189 (para 26). 90 Hanuman Dutt Bajpai v. Budha Singh, 1998 AIHC 25 (para 8) (Del). 91 Ram Dass v. Davinder, AIR 2004 SC 2162 (paras 7 and 8) : (2004) 3 SCC 684.

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92 State of Bombay v. Bhanji Munji, AIR 1955 SC 41, 46 (para 20). 93 Jameet Singh v. Nazir Ahmad, (2005) 12 SCC 372, 375 (para 11) : (2006) 1 SCC 568(Cr) .

45. RECORD OF RIGHTS The entries in the record of rights are presumed to be correct until they are proved to be incorrect by evidence. The presumption would not apply where the entries were made not under any statute or the rules framed thereunder. 94 94 Mahant Krishna Dayal v. Rani Bhubaneswari, AIR 1931 PC 221; Jatindranath Malik v. Sushilendra Nath, AIR 1965 Cal 321; Lakhi Nath Bera v. Nabadwip Chandra Nandi, AIR 1927 Cal 268; Srinath v. Udainath, AIR 1923 PC 217; Shankarrao v. Shambhunath, AIR 1940 PC 192; Shaligram Taltesam Shop v. Narayansa, AIR 1954 Nag 223; Sheo Pershad v. Jhaman Singh, AIR 1925 Pat 488.

46. TRADE MARKS AND PATENTS The burden of proving that the trade mark which a person seeks to register is not likely to deceive or to cause confusion is upon the applicant. He must satisfy the Registrar that his trade mark does not fall within the prohibition of Section 8of the Trade Marks Act , 1940. 95 When a trade mark is an ordinary plain word, heavy onus lies upon applicant to prove that it has acquired distinctiveness. 96 The question of discharging burden of proof that there is no reasonable probability of confusion, cannot arise in a case of honest concurrent use. 97 95 N.S. Thread Co. v. James Chadwick & Bros., AIR 1953 SC 357. 96 Ram Rakhpal v. Amrit Dhara Pharmacy, AIR 1957 All 683. 97 London Rubber Co. v. Durex Products Inc., AIR 1963 SC 1882 (1890) (para 23).

47. MRTP ACT Burden to prove unfair trade practice lies on the person who alleges it.

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98 H.M.M. Ltd. v. Director General, Monopolies & Restrictive Trade Practices Commission, AIR 1998 SC 2691.

48. CONTRABAND Prosecution should prove that articles brought are smuggled articles--Presumption under Section 178A cannot be raised when article seized is not covered by Section 178(A)(2) 99 . Section 3 of Assam Opium Prohibition Act 1947 prohibits import, export, transport or possession of opium among other things. Section 5(a) provides for punishment for contravention. Section 28 lays down that unless and until the contrary is proved, it shall be presumed that the accused has committed the offence in respect of the opium for the possession of which he fails to account for satisfactorily. The Assam High Court held that possession means knowledge or consciousness of the existence of an article at a place where he could exercise dominion. Conscious possession on the part of the accused has to be established by the prosecution for the presumption under Section 28 to be raised. Burden to prove conscious possession on the part of the accused remains on the prosecution and is not shifted to the accused by anything contained in Section 28. 1 The expression "unless and until the contrary is proved" in Sections 54 ( Narcotic Drugs and Psychotropic Substances Act ) clearly imposes the burden of proving that the possession of the

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prohibited substance is legal, is on the accused himself and that dispenses entirely the prosecution from proving that possession of such substances is illegal. 2 Where there was no evidence against accused excepting that the contraband opium was being carried in car which belonged to him, he cannot be convicted on suspicion that he was behind the same. 3 Owing to the peculiar nature of the offence dealt with under the Act the Legislature thought it wise to put the onus of proving his innocence upon the accused person where there was a reasonable belief that he was in possession of smuggled goods and such goods were actually seized from his possession. 4 In a case of seizure of the alleged quantities of charas and ganja from the possession of the accused, it was held that the best evidence would have been the production of the seized material during trial. There is no explanation for failure to do that. Mere oral evidence as to their features and production of panchnama does not discharge the heavy burden which lies on the prosecution, particularly when the offence is punishable with a stringent sentence as under the NDPS Act . 5 In a case under Narcotic Drugs and Psychotropic Substances Act , 1985, it was held that the prosecution must prove that the accused was informed of her right in respect to search and seizure under S. 50(1) of the said Act.6 99 Public Prosecutor v. M.L. Modi, AIR 1961 Mad 368. 1 Abdul Ali v. State, AIR 1950 Assam 152. 2 Radhakisna Parashar v. State, 1988 CrLJ 17(Bom) . See contra Shermal v. C.E. & L.C. Collector, 1956 Cal 621. 3 State v. Venkata Ramana, ILR (1964) Cut 890. 4 State of Punjab v. Krishanlal, AIR 1960 Punj 664. 5 Jitendra v. State of M.P., (2004) 10 SCC 562, 565 (para 6) : AIR 2003 SC 4236 : 2003 CrLJ 4985. 6 Shanta Bai v. State of Madhya Pradesh, 1999 CrLJ 1945, at p. 1947 (MP).

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49. FOOD ADULTERATION ACT Though the prosecution need not prove the mens rea of the accused under prevention of food adulteration, the onus to prove every essential ingredient of the offence lies on the prosecution.

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7 Manindra Narayan v. State of Assam, 1977 CrLJ 1102; Mohonar Singh v. State of Punjab, AIR 1960 Punj 135; Mehnza Buta v. Crown, AIR 1953 Punj 295; M.N. Rajan v. State of Kerala, 1980 CrLJ 177(Ker) ; Rajesh Kumar v. State of U.P., 2001 CrLJ 2093 (para 13) (All).

50. PROHIBITION CASES Burden is on prosecution to prove that the accused committed offence under Prohibition Act.

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8 State of Bombay v. Narandas Mangilal Agarwal, AIR 1962 SC 579; In re : A.S. Krishna, AIR 1954 Mad 993; Lingappa v. State of Mysore, AIR 1955 Mys 116; Koli Ganda v. State, AIR 1956 Sau 25; State v. Talshi Sadul, 1953 Sau 14; Ayodhya Prasad v. State of Maharashtra, 1971 CrLJ 712(Bom) .

51. NEGOTIABLE INSTRUMENTS ACT Onus of proving good faith and absence of negligence as contemplated by Sections 131 , Negotiable Instruments Act is on the banker claiming protection under the Act . 9 In case of dishonour of a cheque, the burden of proof of innocence or absence of mens rea lies on the accused drawer of the cheque and it does not run counter to the basic principle of criminal law presumption of the innocence of the accused. 10 In an offence of dishonour of cheque committed by a company under Sections 141 of the Negotiable Instruments Act , 1881, the primary responsibility was on the complainant to make necessary averments in the complaint as to who were the persons in charge of and responsible for the conduct of the company's business so as to fasten vicarious liability to them. 11 Once the execution of promissory note was either admitted or proved, the presumption under Section 118-A of Negotiable Instrument Act would arise that it was supported by the consideration. The onus to rebut the same lay on the defendant. If the defendant discharged the initial onus of proof showing that the consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff. Mere denial of passing of consideration was held to be insufficient. 12 Sections 138 of the Negotiable Instruments Act contains a penal provision. It is a special statute. It creates a vicarious liability. Even the burden of proof to some extent is on the accused. 13 A cheque was issued towards discharge of legally enforceable debt/liability. It was dishonoured. To disprove the presumption under Sections 139 of the Negotiable Instruments Act , the accused would not be insisted upon for higher standard of proof beyond reasonable doubt as his burden is akin to that a litigant in a civil case.14 9 Wood Briar Estate Ltd. v. Catholic Bank of India, AIR 1958 Ker 316. 10 R. Sankaralingam v. Union of India, 1996 CrLJ 3387 (paras 5-7) (Mad). See also Hiten P. Dalal v. Bratindranath Banerjee, 2001 CrLJ 4647 (paras 20 and 21) (SC); K.N. Beena v. Muniyappan, 2001 CrLJ 4745 (paras 6 and 7) (SC) : AIR 2001 SC 2895; S.V. Muzumdar v. Gujarat State Fertilizer Co. Ltd., (2005) 4 SCC 173, 176 (para 9) : AIR 2005 SC 2436 : 2005 CrLJ 2566; Sadhu Ram Single v. State, 2002 CrLJ 2760, 2762 (para 5) (Del) : 2002 (3) All CrLR 367 : 2002 (2) Bank Cas 420 : 2002 Bank J 251 : 2002 (111) Com Cas 52 : 2002 (97) Del LT 556 : 2002 (62) Del RJ 351 : 2002 (2) Rec CrR 633; M.S. Narayana Menon v. State of Kerala, (2006) 6 SCC 39, 51 (para 36). 11 Monaben Ketanbhai Shah v. State of Gujarat, (2004) 7 SCC 15, 18 (para 6) : AIR 2004 SC 4274 : 2004 CrLJ 4249.

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12 T.N. Boopathy v. T.A. Sathu, AIR 2002 Mad 177. See also Anil Vyas v. State of Rajasthan, AIR 2007 (DOC) 201(Raj) : 2007 (1) NIJ 155(Raj) ; Mariam George v. S. Jeswina, AIR 2008 (NOC) 698(Kar) : 2008 (1) AIR Kar R 381; Kalim M. Khan v. State of Maharashtra, AIR 2008 (NOC) 2275(All) : 2008 (4) ALJ 460. 13 Sarav Investment & Financial Consultancy Private Ltd. v. Llyods Register of Shipping Indian Office Staff Provident Fund, (2007) 14 SCC 753, 76 (para 16). 14 Johnson Scaria v. State of Kerala, AIR 2007 (NOC) 1578(Ker) .

52. TRANSFER OF PROPERTY ACT The rule against the coming to an end of the tenancy on the redemption of the mortgage (Section 76(a) of T.P. Act ) being in the nature of an exception has to be specifically proved by the tenant inducted into possession by the mortgage. As such the burden of proof lies on the tenant to establish the bona fides of the mortgagee when tenancy is created by him in the course of management. 15 Where the deceased had allegedly committed criminal trespass in the land of the accused who delivered two deadly knife blows on his chest and the sale-deed established the transfer of possession in favour of the father of the accused, it was for the prosecution to prove that possession of the accused was subsequently disturbed and the deceased had come into possession. The burden of proof was not on the accused to establish that their possession remained undisturbed. 16 In a case which involves determination of the question whether there has been surrender of old lease and creation of fresh lease, apart from the direct evidence the circumstantial evidence has a great role to play. While appreciating the evidence brought on records by the parties, the Court in a case of this nature must also necessarily take into consideration the normal human behaviour as also its experience in such matter. The Court in a case of this nature cannot arrive at a finding on the basis of the consideration of abstract rule of burden of proof but on consideration of the entire material on record has to arrive at a finding on the basis as to in whose favour the preponderance of probability lies. It is also a trite law that the question of onus of proof looses its importance when both sides have adduced evidence. 17 Where the executant of the sale-deeds was illiterate, burden was on the persons wanting to take advantage of the deeds to prove that the contents of the deeds were read over and explained to the executant. 18 In a transfer by an ostensible owner, the burden to prove that the ostensible owner under the registered sale-deed is only a benamidar, lies upon the person who sets up benami. 19 Where a registered sale deed was disputed by the defendant but the execution of the deed by the vendors was not denied by the defendant, and the sale deed contained the recitals of transfer of ownership and possession to the vendee. The burden to prove that possession or ownership of land was not transferred, was held to be on the defendant disputing the document. 20 Where the persons challenging the execution of the sale-deeds were not present at the time of execution and the concerned parties had full knowledge of the respective cases and led evidence, the question of burden of proof had become academic. 21 15 Matra Puri v. Hukam Chand, AIR 1965 Punj 231. 16 Deepa v. State of M.P., 1999 CrLJ 413, at p. 415 (MP). 17 Tarak Nath Sha v. Bhutoria Brothers Pvt. Ltd., AIR 1998 Cal 31. 18 Kartick Prasad Gorai v. Neami Prasad Gorai, AIR 1998 Cal 278 (para 21). See also Sethani v. Bhana, AIR 1993 SC 956 (para 4). 19 Mirza Mahboob Baig v. D.V. Narasimha Reddy, 1996 AIHC 3070 (para 14) (AP). 20 Shiv Kumari Gupta v. Hameeda Bibi, (2005) AIHC 697, 700 (para 12) (All). 21 Kartick Prasad Gorai v. Neami Prasad Gorai, AIR 1998 Cal 278, at page 282. The Court referred to Narayan Bhagwantrao Gosavi Balajiwale v. Gopal Vinayak Gosavi, AIR 1960 SC 100, at page 105.

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53. PUBLIC PREMISES (EVICTION OF UNAUTHORIZED OCCUPANTS) ACT Although the provisions of the Evidence Act are not applicable to eviction proceeding under the above Act, the underlying principles of Section 101 of the Evidence Act would apply. 22 22 New India Assurance Company Ltd. v Nusli Neville Wadia, (2008) 3 SCC 279, 297-98 (paras 55 and 56) : AIR 2008 SC 876, relying on Shambhu Nath Goyal v. Bank of Baroda, (1983) 4 SCC 491 : 1984 SCC (L & S) 1, Garden Silk Mills Ltd. v. U.O.I., (1999) 8 SCC 744 and J.K. Synthetics Ltd. v. K.P. Agrawal, (2007) 2 SCC 433 : (2007) 3 JT 1.

54. CONTRACT ACT--BAILOR-BAILEE Where goods entrusted to a bailee are lost, initial presumption of negligence on his part arises and the onus to rebut the same by proving that such care as a man of ordinary prudence would have exercised was taken. 23 In the case of bailment if the damage caused were such that in the ordinary course of events it would not happen to the goods of the kind in questions, if used with ordinary prudence, it would be for the hirer to prove that he had exercised such prudence; otherwise, the owner must prove negligence. 24 Bailor has to prove negligence or lack of sufficient care on the part of bailee from the materials produced by bailee to prove negligence on his part. 25 Onus to establish special contract to escape ordinary liability as a bailee is on him who pleads the same. 26 The same rule as to burden of proof applies to the case of a Railway Administration. See cases under Sections 151 & 152 of the Contract Actand the cases under the Heading Carriers Act . 23 Trustees of Harbour, Madras v. Best & Co., (1899) 22 Mad 524 Delivery of goods for safe custody; Shields v. Wilkinson, (1887) 9 All 398; Lakhi Chand v. G.I.P. Railway Co., ILR (1913) 37 Bourl : 14 IC 793 (2); Firm Gourimal v. Secretary of State, ILR (1926) Lah 217 : 91 IC 963; Maung PO v. Maung Tha, ILR (1923) Rang 73 : 74 IC 18; Cochin Port Trust v. Associated Cotton Traders Ltd., AIR 1983 Ker 154. 24 Rampal v. Murray & Co., (1899) 22 All 164. 25 Calcutta Credit Corporation v. Prince Peter, AIR 1964 Cal 374; Thacker Jeraj Keshavji v. Chavda Soleman, Mod, AIR 1952 Kut 50; Ranga Raju v. Muthu Krishna, 1962 Mad 244; Madras Port v. Home Insurance Co., AIR 1970 Mad 48. 26 Raipur Transport Co. v. Ghanshyam, AIR 1956 Nag 145.

55. CARRIERS-- RAILWAYS ACT If the loss or damage has been caused to the property during the transit, the burden of proof is on the carriers Railway Administration to prove absence of criminal act or negligence on the part of carrier or its agents or servants. 27 When there is a loss caused by criminal act of carrier or his servant, then it is for carrier to prove that no criminal act was committed by him or his agent or servant. 28 The value of goods and extent of damage have to be proved by the claimant because the railway certificate is not the final thing. 29 Where railways had to prove that the goods were not lost within seven days of the end of transit and offered no evidence, their case fails. 30 Provision imposing burden on one set of common carriers only, without a similar burden being cast on other common carriers like Railways and Airways, is not violative of Article 14 of the Constitution of India . 31 If his foods were consigned on one Railway and delivered on another Railway in a damaged condition, then the burden of proof is on delivering railway to prove that the damage did not occur in its Railway. 32 When the goods are consigned at Railway risk and there is shortage in delivery on account of pilferage in transit the case comes with the general responsibility of the Railway Administration under

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Section 73 and the onus will lie upon the Railway to prove that they had taken reasonable care, even if the goods were proved to have been defectively packed by the consignor. 33 When the Railway pleads loss due to looting by riotous mob, it is for them to place all necessary materials for a proper inference. 34 Burden to prove negligence and misconduct on the part of Railway Administration, is on the plaintiff. When there is a loss occurred in deviation from agreed route or goods were not properly packed or destroyed by fire, the onus is on the Railway Administration in view of Section 74 of the Railway Act. 35 Where a person sending parcel for carriage by railways has not declared the value of goods and there is a loss of the parcel then the burden lies on Railway Administration to prove loss. 36 When the Railway Administration pleads for the dismissal of the suits on the ground of limitation, it has to establish that the loss occurred beyond one year from the date of institution of the suits. 37 Sections 9 of the Carriers Act relieves the plaintiff of proving negligence. The carrier must exonerate himself from liability.38 When a Consignor or agent signed the declaration expressly agreeing to all conditions in the consignment note, burden lies upon him to show that the signature was secured by fraud or misrepresentation or that he had no notice of the conditions 39 . 27 Banwarilal v. Road Transport Corporation, AIR 1989 Pat 303; Union of India v. Ranganayukulu, AIR 1964 AP 477; Lakshmiah v. Union of India, AIR 1969 AP 386. 28 Yelinje Mammi v. Chennakeshava, AIR 1963 Ker 198. 29 Union of India v. Madan Mohan, AIR 1981 Ori 9. 30 Raman & Co. v. Union of India, AIR 1985 Mad 37; Union of India v. Ram Prasad., AIR 1982 Raj 253. 31 Assam Bengal Roadways Ltd. v. Union of India, AIR 1988 Kant 157. 32 Tahsil Co-op. Agricultural Association v. Union of India, AIR 1968 MP 185; Relying on Jetmull Bhojraj v. Darjeeling, Himalaya Railway Co. Ltd., AIR 1962 SC 1879. 33 T.M. Veerappa v. Union of India, AIR 1972 Mys 164; Bellary Central Co-op. Stores Ltd. v. Union of India, AIR 1959 Mys 90; Distinguishing from Dominion of India v. Guru Prosad Ram, AIR 1949 Cal 679; Union of India v. C.S. Rai, AIR 1973 Pat 244; Union of India v. Orissa Textile Mills, AIR 1979 Ori 165; General Manager, Southern Rly. v. Agarwal Traders, AIR 2001 Kant 366 (paras 10 and 11). 34 G.G. in Council v. Mahabir Ram, 1952 All 891(FB) ; Relying on Dwaraka v. R.S.N. Co., AIR 1917 PC 17. 35 S.V. Traders v. Union of India, AIR 1966 All 333; Pyarelal v. Governor General of India, AIR 1957 All 21; Union of India v. Eastern Match Co., AIR 1964 AP 172; Firm R. Bhagwati Prasad v. Union of India, AIR 1959 Assam 98; Jalim Chand v. Union of India, AIR 1956 Assam 188; Union of India v. Muralidhar, AIR 1951 Assam 173; Ram Krishna Ramnath Shop v. Union of India, AIR 1960 Bom 344; Fushraj Thanmull v. Union of India, AIR 1960 Cal 458; Bhairuddon v. Union of India, AIR 1957 Cal 573; India T&G.I. Co. v. Union of India, AIR 1957 Cal 190; D.H. Railway Co. v. Jetmall Bhojraj, AIR 1956 Cal 390; Manickam Chettar v. Union of India, AIR 1960 Mad 149; Asaram v. Union of India, AIR 1957 Nag 59; Union of India v. Parikh Shankerlal, AIR 1956 Nag 255; Dominion of India v. Rupchand, AIR 1953 Nag 169; Union of India v. Bishwanath, AIR 1959 Pat 473; Union of India v. Bhagwan Sah, AIR 1957 Pat 325; Janendra Kumar Jain v. Union of India, AIR 1957 Pat 147; Manilal Raghavji v. Union of India, AIR 1956 Pat 434; Sattanmal Vishandas v. Union of India, AIR 1960 Raj 121; Union of India v. Brijlal, AIR 1969 SC 817; Union of India v. Firm, M.P. & Sons, AIR 1971 MP 131; Union of India v. Bhagat Ram, AIR 1967 Del 153; Union of India v. Raj Supplying Agency, AIR 1968 AP 327; Union of India v. Hukumchand, AIR 1970 MP 55; K.R. Sarda & Co. v. Union of India, AIR 1968 MP 199. 36 Banarsi Stores v. President, AIR 1953 All 318; Gopi Krishna v. Union of India, AIR 1961 Pat 473; Dominion of India v. B.L. Butt, AIR 1957 Pat 328; Sheonandrai Gajanand v. Union of India, (1967) 46 Pat 607; Union of India v. Orissa Textile Mills, AIR 1967 Ori 148. 37 Union of India v. Amar Singh, AIR 1960 SC 233; Fetmull Bhojraj v. Darjeeling Himalayan Railway Co. Ltd., AIR 1962 SC 1879; Raman & Co. v. Union of India, AIR 1985 Mad 37. 38 M. Sicka & Co. v. Narhar Singh, AIR 1959 MP 351; A.S. Navigation Co. v. Jethalal, AIR 1959 Cal 479. 39 I.A. Corporation v. Jothaji, AIR 1959 Mad 285.

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56. LAND GRABBING In an allegation that certain parties are land grabbers, the initial evidence as to the said allegation is to be adduced by the complainant in the first instant and not by the persons against whom allegation has been made; 40 but as under Section 10 of the A.P. Land Grabbing (Prohibition) Act (12 of 1982), a presumption is drawn by the special Court/special Tribunal against the person who is alleged to have grabbed the land that he is a land grabber, the burden of proving that the land has not been grabbed by him is cast on the alleged land grabber; 41 such presumption would not take within its fold the attempts to grab land, burden to prove the allegation of which would lie on the prosecution. 42 40 Bahaggan Bai v. Mandal Revenue Officer, 1998 AIHC 317 (paras 3 and 4) (AP). 41 Konda Lakshmanan Bapuji v. Govt. of A.P., (2002) 3 SCC 258 (para 19) : AIR 2002 SC 1012. See also V. Laxminarasamma v. A. Yadaiah, (2009) 5 SCC 478, 488 (para 36). 42 H.A.E. Co-op. Hsg. Socy. Ltd. v. Registrar, Special Court, 2004 AIHC 650, 665 (para 66) (AP).

57. SEIZURE AND AUCTION Where a bank seized a vehicle and auctioned the same asserting that it did so in exercise of its legal rights, onus was on the bank to prove its assertion and not on the plaintiff. 43 43 J &K Bank v. Sardar Karan Singh, 1998 AIHC 4703 (paras 3-5) (J&K).

58. POSSESSION The possession, being a pure question of fact, needs to be proved by pleading the attendant circumstances, and no standard pattern can be expected in this regard. The plaintiff can be said to have discharged his burden in this regard, if he is able to place some reliable material, in support of his possession. Once that is done, the scene of consideration shifts to the examination of evidence adduced by the defendant. The purpose is not to require the defendant to prove his possession, but is to verify as to whether the claim put forward by the defendant is superior in any way to that of the plaintiff. If the court finds that the defendant had probabilised his possession, it becomes a factor to deny the relief to the plaintiff, than to pronounce upon the nature of the rights of the defendant. These factors become relevant because the relief is claimed against the defendant and not in rem. 44 44 Gadipati Venkatappaiah v. Gurisetti Subbaiah, AIR 2006 NOC 87(AP) .

59. EQUAL PAY FOR EQUAL WORK The burden to prove a particular fact being always on the person who alleges the same, the burden was on the workman to establish his right to invoke the doctrine of 'equal pay for equal work', by establishing that the nature of work and the responsibilities of a boiler overhauling machinc, the post the held, were identical to that of post of boiler mistry with which he claimed parity, and not on the employer to prove the negative, as was cast in the instant case. 45 45 Uttar Pradesh State Electricity Board v. Aziz Ahmad, (2009) 2 SCC 606, 610 (paras 13 and 14).

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CHAPTER VII THE BURDEN OF PROOF S. 102. On whom burden of proof lies. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. ILLUSTRATIONS 7a)   A sues B for land of which B is in possession, and which, as A asserts, was left to A by the will of C , B' s father. If no evidence were given on either side, B would be entitled to retain his possession. Therefore the burden of proof is on A . 8b)   A sues B for money due on a bond. The execution of the bond is admitted, but B says that it was obtained by fraud, which A denies. If no evidence were given on either side, A would succeed, as the bond is not disputed and fraud is not proved. Therefore the burden of proof is on B . 1. PRINCIPLE

In terms of Section 102 the initial onus is always on the plaintiff and, if he discharges that onus and makes out a case which entitles him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the same. 1 1 Anil Rishi v. Gurbaksh Singh, AIR 2006 SC 1971, 1974 (para 19) : (2006) 5 SCC 558.

2. ABANDONMENT Abandonment must be proved affirmatively by the person who sets up by unimpeachable evidence.

2

2 Y.C. Rattayya v. D. Venkata Ramayya, AIR 1959 AP 551; Kanhiya Shanker v. Mohabata Sedhu, AIR 1960 Punj 494; Nemsnath Appayya v. Jamboo Rao.

3. ABATEMENT Where a tenant claims abatement of rent on account of diluvion and the landlord admits or it is proved that some diluvion has taken place, the onus is upon the tenant to prove the extent of the diluvion and the corresponding abatement claimed. 3

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3 Arun Chandra Singha v. Bhagaban Chandra Roy, ILR 1931 Cal 537(FB) .

4. ACCOUNTS There is no presumption that in a suit for accounts, the accounts produced by the legal representative, as being that of the deceased accounting party, are either genuine or correct. But since the original accounting party is not available, they must be treated as ' prima facie ' accounts of the deceased, and it would be for the plaintiff to prove that they are not genuine or correct. 4 In a suit for recovery of amount due on the basis of adjustment of amounts signed by defendant, if the defendant denied the correctness of amount found due, then the defendant who is in possession of account books, from which the balance could be ascertained should produce them before the court. He cannot be heard to say, relying upon the abstract doctrine of onus of proof, that it was not part of his duty to produce them unless he was called upon to do so. 5 4 Panmal v. Omraomal, AIR 1953 Cal 244. 5 Hiralal v. Badkulal, AIR 1953 SC 225; following in Murugesan Pillai v. Gnana Sambandha, AIR 1917 PC 7; Ishwar Dass v. Radha Mal, AIR 1960 Punj 417; relying on Rameshwar Singh v. Bajit Lal Pathak, 1929 PC 95; Kanhailal v. Kantilal, AIR 1968 Raj 278; Budhlada Municipality v. Firm Bhuria Mal, AIR 1953 Punj 94; Khushi Ram v. Mehrchand, 1950 East Punj 272.

5. ACQUIESCENCE, ADMISSION, ESTOPPEL AND WAIVER The onus is on the person who pleads estoppel 6 . The burden is on the insurer to show the breach of the conditions of the policy for avoiding its liability. 7 The person who sets up a plea that the admission contained is an unregistered document, either admitted or proved, is, as a matter of fact, false the burden lies on him to prove that fact. 8 Burden of proving contrary to admission of adoption in a registered deed lies on him making admission. 9 Onus is heavy on a person to show that recitals in document as to admission made by him while executing the document are untrue or tainted with illegality or the untrue statements were made with set purpose. 10 Onus of proof is on judgment-debtor to prove waiver on part of decree holder to exercise a right which had arisen under the decree when acceptance of money after default took place. 11 Burden of proof is on the purchaser to establish the waiver of right by other co-heirs. 12 6 Sashi Mukhi v. Keshav, 1924 PC 213. 7 Union of India v. Sohanlal Sampatlal, (1971) 2 SCR 706. 8 Ram Chand v. Chhunun Mal, AIR 1925 Lah 417 : (1925) 6 Lah 470(FB) ; Mania v. Wy. Director Consolidation, AIR 1971 All 151. 9 Bhola Chaube v. Man Matun, 1965 All 258; Govinda v. Chimabai, AIR 1968 Mys 309. 10 Muneyya & Co. v. Varada-rajulu, AIR 1964 AP 17. 11 Humayun Properties v. Fersazzinis (P) Ltd., AIR 1963 Cal 473. 12 Nagammal v. Nanjammal, (1970) 1 MLJ 358.

6. ADOPTION A party who is seeking to establish adoption displacing the right of the natural heirs has to prove strictly not only the factum of adoption but also its validity, but where there is long lapse of time between the adoption and when it was questioned, absence of some evidence in proof of adoption

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can be favourably entertained and the burden shifts on the otherside and the burden rests heavily on him who challenged its validity. 13 A person who seeks to displace the natural succession to property by alleging an adoption must discharge the burden that lies upon him by proof of the factum of adoption and its validity. The evidence in proof of the adoption should be free from all suspicion of fraud and so consistent and probable as to give no occasion for doubting its truth. Nonetheless the fact of adoption must be proved in the same way as any other fact. 14 To prove the factum of adoption, burden lies on the person who sets up adoption. But where both the parties join the issue and lay conflicting evidences, the question of burden of proof and its shifting becomes redundant. 15 It is for the adopted son to prove his giving by his natural father and taking by the adoptive father and his title as an adopted son. 16 Where an adoption was recognised by all members of family for over fifty years, strong presumption in favour of its validity arises. A heavy burden lies on reversioner challenging it to prove his allegation that it is invalid on the ground of the adoptive mother lacking competence to adopt. 17 Where a registered adoption deed was executed under the signatures of both the natural and the adoptive parents after adoption ceremonies and the name of adoptive father was also written in the school records of the child and the documentary evidence was supported by the evidence of witnesses, in such circumstances the presumption would be in favour of the party contending the adoption and the burden would lie on the party challenging the adoption deed to disprove the deed of adoption and also to disprove that the ceremonies of adoption were not performed. 18 The burden to prove the customary adoption in Kashmir Valley being a question of fact, is always on the party who relies on it, by leading positive evidence. 19 See Hindu Law--Adoption. 13 Seetharama Chandra Rao v. Krishna Rao, AIR 1925 PC 201; Yenkataratnam v. Yenkata Narasayamma, AIR 1964 AP 109; Chhoti Bai v. Ganesh Lal, AIR 1964 MP 302; Babulal v. Dwaraka Bai, 1963 MPLJ 46. 14 Madhusudan Das v. Narayani Bai (Smt.), AIR 1983 SC 114; Daulat Rao Jai Ram Ji v. Harish Chander, AIR 1972 SC 2446; Arjun Banchhor v. Buchi Banchhor, AIR 1995 Ori 32 (para 7). 15 Sriram Jain v. Manjubai Jain, AIR 2009 Ori 104, 107 (paras 11 and 12), relying on Narayan v. Gopal, AIR 1960 SC 100. 16 L. Debi Prasad v. Tribeni Devi, AIR 1970 SC 1286. 17 Y. Yenkata Ramarao v. K. Bhaskarao, AIR 1969 SC 1359. 18 Idam Swarajya Laxmi v. Idam Yani, 2004 AIHC 3165, 3170 (para 25) (AP). 19 Yaqoob Laway v. Gulla, AIR 2005 NOC 341(C) (J&K).

7. TITLE In a dispute for title to the suit property, the plaintiff claimed title in the trial court, hence burden was on her to prove the same. 20 In a suit for recovery of possession based on title once the plaintiff has been able to create a high degree of probability so as to shift the onus on the defendant, it is for the defendant to discharge his onus and in the absence thereof the burden of proof lying on the plaintiff shall be held to have been discharged so as to amount to proof of the plaintiff's title. Hence, it is plaintiff who has to prove his title to the satisfaction of the Court. 21 20 Corporation of City of Banglore v. Zulekha Bi, (2008) 11 SCC 306, 308 (para 6) : (2008) 4 JT 539. 21 R.Y.E. Yenkatachala Gounder v. A.Y. & Y.P. Temple, AIR 2003 SC 4548 (para 29) : (2003) 8 SCC 752, relying on A. Raghavamma v. A. Chenchamma, AIR 1964 SC 136.

8. OWNERSHIP

497

The Supreme Court has held that the burden of proving to have a share in certain property or to be a co-owner lies on the person who claims so. He must discharge his burden by gracing the witness box and deposing and leading evidence as to the extent of his share and his independent source of income from which he contributed towards the purchase of the property. In the instant case the wives of the two of the partners of a firm whose property was attached for recovery of bank loan, were the claimants. 22 22 Janki Yashdeo Bhojwani v. Indusind Bank Ltd., (2005) 2 SCC 217, 221 (paras 9-12) : AIR 2005 SC 439.

9. ADVERSE POSSESSION Burden of making out ouster is on person claiming to displace lawful co-heirs, by adverse possession. 23 A person who is in long possession of property can undoubtedly maintain a suit to turn out a trespasser on the property, as it is the trespasser who is to show a title better than that of the plaintiff if the plaintiffs long possession is otherwise established. 24 Where a widow in joint family took over possession of some family property, the onus is on person who asserts that her possession is not adverse, to show it. 25 If there is no evidence of open assertion of hostile title against the plaintiff, and no fault indicative of ouster was proved to have taken place any time 12 years before the date of the suit, then the plea of adverse possession must fail as the burden in this behalf squarely is upon the defendant 26 and onus to prove adverse possession can not be shifted on the plaintiff, once he discharged his onus by proving his title. 27 For a plaintiff to succeed in getting possession basing on his title he has to prove that he was in possession within 12 years of the suit; the onus is not on the defendant to prove adverse possession for a period of 12 years. 28 In a suit for possession, the plaintiff failed to prove title, it was held that in such a case it is not necessary for the defendant to prove his title. The plaintiff suit will be dismissed irrespective of the fact whether the defendant had any right in the property or not, and he cannot succeed on the weakness of the defendant's case. 29 In a suit against Government for declaration of title based on adverse, possession the onus of proving possession, for 60 years is on plaintiff. Mere proof of long possession does not shift the onus to the State to prove its title and possession within 60 years proceeding the suit. 30 23 P. Lakshmi Reddy v. L. Lakshmi Reddy, AIR 1957 SC 314; Secretary of State v. Cheliani Ruma Rao, 1916 PC 21; Bitola Kuer v. Ramacharan, AIR 1978 all 555; Relying on Radhamoni Debi v. Collector, ILR 27 Cal 943(PC) ; Alla Rakhi v. Shan Md., AIR 1934 PC 77; Lachhimi Nath v. Bholanath, AIR 1964 All 383; States of J&K v. Sannavllah, AIR 1966 J&K 45; Balia v. Kanshi Ram, AIR 1975 HP 60; Franiji v. Gokuldas, ILR 16 Bom 338; Ganpatrao v. Hardayal, AIR 1933 Lah. 72; Garibu v. Lakhshami Narain, AIR 1952 J&K 24; Trilochan Dand Sena v. State (FB), AIR 1995 Ori 239 (para 9); D. Lakshmamma v. Kathi Chinna Narasappa, 1999 AIHC 3370 (para 15) (AP); Konda Lakshmana Bapuji v. Govt. of A.P., (2002) 3 SCC 258 (para 49) : AIR 2002 SC 1012. 24 S. Jama Masjid v. Kanhaiyalal, AIR 1973 Raj 322. 25 Gaya Deen v. Amrauti, AIR 1955 All 630; Rashid Ali v. Durparam Namasudra, AIR 1954 Assam 94; B. Gopal Krishnam v. Meganathan, AIR 1973 Mad 170; Triveni Bai v. Swaroop Chand, AIR 1974 Raj 232. 26 Joti v. Manukabai, 1988 Bom 348. See also Gurbinder Singh v. Lal Singh, AIR 1965 SC 1553, 1556. 27 R.K. Kalita v. K.C. Kalita, AIR 2004 Gau 31, 35 (para 15) following Mahammed Zainulabudden Syed Ahmed Mohideen, AIR 1990 SC 507. See also Eleti Raja v. Puskur Damodar Rao, 2004 AIHC 808, 811 (para 16) (AP). 28 Bhikari Charan Sahu v. Chhima Basic School, AIR 1967 Ori 44. 29 Chotelal v. Mangali, AIR 1957 All 135; Audilakshamma v. V.A. Ramarao, AIR 1973 AP 149; Jagadish Narain v. Nawab Said Ahmad Khan, AIR 1946 PC 59; Nasiruddin v. Lala Baboolal, AIR 1945 All 197; Brahma Nand Puri v. Meki Puri, AIR 1965 SC 1506; Govindji v. Devji, (1960) 10 Raj 1197; Lalita James v. Ajit Kumar, AIR 1991 MP 15; Kamakshi Builders v. Ambedkar Educational Society, (2007) 12 SCC 27, 35 (para 13) : AIR 2007 SC 2191. 30 Kurmanaikulu v. D.M.E., S.E., Rly, AIR 1964 Ori 253.

498

10. AGREEMENT If an agreement is challenged as being a restraint of trade, then the onus of showing that restrictions were reasonably necessary to his interest is on the party who is supporting the contract. 31 31 V.M. & S. Brewing Co. v. V. Breweries Ltd., AIR 1934 PC 101; N.S. Golikari v. Century S & M Co., AIR 1967 SC 1098; Trivenkada Moopanan v. Subbaiah Moopaner, (1967) 1 MLJ 117; Hukmichand v. Jaipur ICE & Oil Mills Co., 1980 Raj 155; Raghunandan Lal v. Sheodhan Das, 1953 All 594.

11. ALIENATION It is well-settled that it is for the party who wants the court to uphold the alienation of debuttar property to prove that the alienation was made for legal necessity. 32 Under no circumstances, the initial onus which is on the purchaser shifts on the plaintiff at the first stage even when the plaintiff states in the plaint why he makes the subsequent purchaser a party and how he came to know that the person concerned was the subsequent purchaser. 33 The burden of proving that the plaintiff had knowledge of the alienations 12 years prior to the date of suit was on the alienee defendants. 34 32 Jogendra Nath v. Official Receiver, AIR 1975 Cal 389; Relying on Palaniappa Chetty v. Devasi Kamony, AIR 1917 PC 33; Biram v. Narendra, AIR 1966 SC 1011; Ramsumran v. Shyam Kumari, AIR 1922 PC 356. 33 Ram Chander Singh v. Bibi Ashgari Begum, AIR 1957 Pat 224. 34 Laxminarayan v. Padmanabha, AIR 1972 Mys 81.

12. ARBITRATION The onus is on the person who asserts that consent of one of the parties to an arbitration was obtained by threats or through undue influence. 35 The plaintiff asserted the existence of an arbitration agreement which was disputed by the defendants. It was for the plaintiff to lead oral or documentary evidence in support of his case, which he failed to do. It was held that the fact was not proved. 36 35 Purvatha v. Jayavera, 4 WR 31(PC) . 36 Gamon India Ltd. v. Sheth Estate Developers Pvt. Ltd., AIR 2006 (NOC) 304(Guj) . See also Great Offshore Limited v. Iranian Offshore Engineering and Construction Company, (2008) 14 SCC 240, 254 (para 46).

13. ASSESSMENT TO AND RECOVERY OF TAX In a contract for work involving transfers of contracted goods, the burden of showing that transfer of goods constituted taxable sale is on Revenue Authority. 37 When sufficient evidence either direct or circumstantial is disclosed by Revenue Authority and the assessee fails to put before department material in his exclusive possession then adverse inference can be drawn against assessee. 38 Where the assessee fails to show that the assessment is prima facie wrong, the taxing authority is under no obligation to prove that it is justified. 39 Onus lies on the department to prove in penalty proceedings under Income Tax Act that there was concealment of Income or deliberate furnishing of inaccurate particulars of income under Section 28(i) (c) of Income Tax Act .40 Burden of proving that the Income had escaped assessment is on the I.T. Authorities. 41 Burden is on Revenue Authorities to show the income is liable to tax under the statute. Onus of proving that particular class of income is exempt from taxation, however, lies on assessee. 42

499

Burden of proof is on the assessee to show to the satisfaction of the Income Tax Officer that the income was saved from operation of sub-section (1) and sub-section (3) of Section 44-D of I.T. Act or under any other provisions of the Act . 43 Assessment made in respect of income on agricultural activities the assessee claimed that the income did not belong to the Hindu Undivided Family but to its members in their individual capacity. Then the burden rests on the department to prove that the income belonged to the Hindu Undivided Family in the absence of evidence that the property could be acquired with the income from joint family property. 44 Burden of proof is on assessee to show that the order of the special officer and the annual valuation of the building was wrong. 45 In any case of dispute regarding the quantum of a tax or any other financial burden between a subject and the state, the burden is on the state to show that larger quantum is leviable and not the smaller one. 46 In a claim for allowance under Section 10(2)(xv) of Income Tax Act by the Assessee Company, burden of proof lies on the company to prove that expenditure was incurred wholly and exclusively for business of the company. 47 Where partners of firm are residents in this country, normal presumption is that the firm is resident in taxable territory--presumption is rebuttable and can be rebutted by assessee by showing that control and management of affairs of the firm is situated wholly outside taxable territory. The onus to rebut initial presumption is on assessee. 48 Burden of proving that the transaction came within the mischief of Section 10(A) is on the department. 49 Where there is a Credit entry of deposit by wife of assessee partner in account book of the firm, the source of money need not be proved by assessee and burden to prove that it is false shifts to the department. 50 It is for department to consider whether there are sufficient materials for rejecting the method of accounting. 51 If annual value has been raised on the ground that since the last revaluation the rental value of property has increased, the burden is on corporation to lead evidence to show that there had been really such increase. 52 Where the assessee pleaded that the contractual rent should not be regarded as standard rent and therefore rateable value has not been properly fixed, onus was on the assessee. 53

Where the assessee claims for exemption of an amount on the ground of it being an expenditure falling under exemption, the burden of proving the necessary facts in that connection lies on the assessee. 54 37 Government of A.P. v. Guntur Tobaccos Ltd., AIR 1965 SC 1396; Associated Hotels of India v. Excise and Taxation Officer, AIR 1966 Punj 449; Mangal Chand Gobardhan Das v. I.T. Commissioner, Assam, AIR 1954 Assam 89; I.T. Commissioner v. Bai Shirinba's, AIR 1956 Bom 586. 38 Income Tax Commissioner, Madras v. Best & Co., Ltd., Madras, AIR 1966 SC 1325. 39 General Electric Co-op. of India Ltd. v. Corp., of Calcutta, AIR 1959 Cal 413; Corp. of Calcutta v. Nani Gopal, AIR 1956 Cal 269. 40 Bhajuram Ganpatram v. C.I.T., AIR 1970 Ori 38; N.J. Naidu v. I.T. Commr., AIR 1956 Nag 157; C.I.T. v. Gokuldas, 1959 Bom 96; C.I.T. v. Anwar Ali, AIR 1970 SC 1782. 41 Bhimraj Pannalal v. I.T. Commissioner, B&O, AIR 1957 Pat 638. 42 Nizam's Religious Endowment Trust, Hyderabad v. Commissioner of I.T. Andhra Pradesh, AIR 1966 SC 1007. 43 Chidambaram Chettiar v. I.T. Commissioner, Madras, AIR 1966 SC 1453; I.T. Commissioner, Bombay v. Chugandas & Co., AIR 1965 SC 568 relied on; I.T. Commissioner v. Ramkrishna Deo, AIR 1959 SC 239; Mahabir Sugar Mills v. State of U.P., AIR 1964 All 439; H.E.H. Nizams Religious Endowment Trust, Hyd. v. Commr. of I.T., A.P., AIR 1966 SC 1007; Kilash Chandra v. I.T. Commissioner, AIR 1967 MP 149; Seetharamamma v. Commissioner of I.T., ILR (1963) AP 1051; Hazarilal v. Commissioner of I.T., ILR (1963) AP 636; R.C. Society v. State of Andhra, AIR 1961 AP 86(FB) ; Srish Chandra v. I.T. Commissioner, AIR 1958 Cal 34; N.S. Factory v. Commissioner of Sales Tax, AIR 1956 Hyd. 194; Md. Ravoother v. Dy. Commercial, Tax Officer, AIR 1958 Mad 176; Rangaswamy & Bros. v. E.P. Tax Commissioner, AIR 1958 Mad 27; Commissioner of Income Tax & E.P. Tax v. Andiappa Pillai, AIR 1952 Mad 542;

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Munnalal v. I.T. Commissioner, AIR 1957 Nag 73; Gopi Ram v. I.T. Commissioner, AIR 1959 Pat 246; Dalmia Jain & Co. v. I.T. Commissioner, AIR 1957 pat 424; Zainuddin Ahmed v. I.T. Commissioner, AIR 1956 Pat 251; S.N. Ganguly v. I.T. Commissioner, AIR 1954 Pat 51; H.R. Gupta & Co. v. I.T. Commissioner, AIR 1956 Punj 90; I.T. Commr. W.B. v. D.P. More, AIR 1971 SC 2439; V. Hall & R Textiles v. I.T. Commissioner, AIR 1971 AP 184. 44 Anil Kumar Roy Chowdury v. C.I.T., AIR 1976 SC 772; Kalwa Devadattam v. Union of India, AIR 1964 SC 880; Firm Jathmall Sadasukh v. I.T. Commissioner, AIR 1957 All 110; I.T. Commissioner v. Anwar Ali, AIR 1970 SC 1782; C.I.T. v. Anwar Ali, AIR 1968 Cal 345; A. Trisulapany v. I.T. Commissioner, AIR 1958 AP 546; Mangilal v. I.T. Commissioner, AIR 1955 Pat 366; S.N. Ganguly v. I.T. Commissioner, AIR 1954 Pat 51. 45 Corp. of Calcutta v. Union Jute Co., AIR 1957 Cal 230; In re : Suburban Bank Ltd., AIR 1953 Cal 487; Lal Chand & Sons. v. Calcutta Corp., AIR 1953 Cal 428. 46 N. Manickm v. Arunagiri, ILR 1961 Mad 489. 47 Lakshmiratan Cotton Mills v. I.T. Commissioner of U.P., AIR 1969 SC 917; Commr. of I.T. West Bengal v. Cal. Agency Ltd., AIR 1951 SC 108; C.I.T. v. Chugandass Co., AIR 1965 SC 568; CIT v. Ram Krishna Deo, AIR 1959 SC 239. 48 Erin Estate v. I.T. Commissioner, AIR 1958 SC 779. 49 Md. Ibrahim & Co. v. Commr. E.P.T., AIR 1953 Mad 221. 50 Tolaram Daga v. Commissioner of I.T., AIR 1968 Assam1 (DB). 51 State v. Madhogaria, AIR 1959 Ker 200. 52 Lalchand & Sons v. Calcutta Corporation, AIR 1953 Cal 428; Santosh Kumar Bose v. Corporation of Calcutta, (1971) 2 Cal 532. 53 Municipal Corporation, Ahmedabad v. Oriental F.&G. Insurance Co. Ltd., AIR 1994 Guj 167 (paras 31 and 32). 54 I.T. Commr. v. Calcutta Agency, AIR 1951 SC 108, 110 (para 5); See also I.T. Commr., Bombay v. Chhugandas & Co., AIR 1965 SC 568, 573 (para 12).

14. ASSETS Onus is on assessee to prove whether written down value is the true value for determination of net value of assets of a business with regular account. 55 Joint Hindu family carrying on business of money lending and purchase and sale of property had made allotment of family property towards share of a member in the partition is a capital asset in his hands. Proceeds of sale of the said property is capital receipt. Burden of proof is on the department to prove its contention that the asset was converted into stock in trade of going business. 56 55 W.T. Commr. v. Tungabhadra Industries Ltd., AIR 1970 SC 352. 56 Swaminathan Chettiar v. C.I.T., AIR 1967 Mad 328.

15. ATTACHMENT The onus of proof is on the person, who alleges the non-observance of the formalities necessary for attachment. 57 In a suit attacking the transfers of property, the burden is on the plaintiff of establishing the attacks and the onus probandi applies when judge is in doubt, he should not be blind to facts before him. 58 57 Ram Krishna v. Sarfunessa, 6 Cal 129(PC) . 58 Bal Kishan v. Ram Charan, ILR 1929 PC 296.

501

16. BAD FAITH (MALA FIDES ) & BONA FIDES Burden to show that the transferee was acting in good faith is on the transferee himself and he has also to show consideration for the transfer. 59 Where the issue is whether a transaction is bona fide and genuine one or is sham and bogus, the burden of proof would not be on the party alleging it to be sham to prove its allegation unless the transaction is proved to be bona fide by the opposite party. 60 The burden of establishing mala fide is very heavy on the person who alleges it 61 and the fact, as in the instant case, that the petitioner could not get outside evidence to establish that whatever had happened at the time of interview could not shift the burden which lay on him to prove his allegations. 62 Where mala fides were alleged against a minister, it was held that the minister has to controvert the allegations in the counter affidavit and not the secretary in the department who had no personal knowledge and the mala fides were proved and the order the minister was to be set aside. 63 Onus of proving unreasonableness or unfairness of a scheme or of want of good faith is on those who object to the sanction of the scheme. 64 Onus of proving that the impugned transactions were not entered in good faith and valuable consideration is on official receiver. 65 Burden is on the party setting up a case of bias to prove the same.

66

59 C. Abudl Shukoor Saheb v. Arji Papa Rao, AIR 1963 SC 1150; Rukiayia Begum v. Radha Kishan, AIR 1944 All 214; Basuvegowda v. S. Narayanaswamy, AIR 1986 Kant 225. 60 Subhra Mukherjee v. Bharat Coking Coal Ltd., AIR 2000 SC 1203 (para 13). 61 E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555; Jwala v. State, 1976 Punj 158; Chandrama Singh v. Y. Singh, AIR 1972 Pat 128; Ashutosh v. State of Delhi, AIR 1953 SC 451; Gajanan v. State, AIR 1967 Bom 96; Following Basanta Chandra v. Emperor, AIR 1945 FC 18; Srinivas Kedwal v. State of W.B., AIR 1954 Cal 171; Bireshwar Chakravarti v. L.N. Kaula, AIR 1957 All 671; Pratap R. & T. Factory v. State of Punjab, AIR 1966 Punj 16; Puri Urban Co-op. Bank Ltd. v. Jagat Bandhu Mohapatra, ILR 1975 Cut 225; Jawala Prasad Singh v. State of Bihar, AIR 1976 Pat 158; Ghasi Ram v. State, AIR 1966 Raj 247; C.K. Gangadharan v. Commissioner of Income Tax, Cochin, (2008) 8 SCC 739, 744 (para 12) : (2008) 10 Scale 426. 62 A.P. Chettiar v. State of T.N., AIR 1971 SC 2085. 63 Patap Singh v. State of Punjab, AIR 1964 SC 72. 64 In re : Hindustan General Electric Corpn. Ltd., AIR 1959 Cal 679; Kamalakar Singh v. S.K. Gupta, AIR 1952 Cal 147; Sudhindra Nath v. Sailendra Nath, AIR 1952 Cal 65; Narayana Sankaran Mooss v. State of Kerala, AIR 1965 Ker 253; Coimbatore Kamala Mills v. Sundasam, AIR 1950 Mad 725; Brundaban Chandra v. State of Orissa, AIR 1953 Ori 121; Khurjawala Buckles Mfg. Co. v. Sale Tax Commissioner, AIR 1967 All 378; Bhupinder Singh v. State of Haryana, AIR 1968 Punj 406; Sohan Singh v. State, AIR 1970 Punj 322(FB) ; Karunanidhi v. Asst.. Police Commissioner, AIR 1968 Mad 54. 65 Srikantaiah Setty v. A. Basha Saheb & Co., AIR 1958 Mys 35. 66 Viswanathan R. v. Rukn-ul-Mulk Syed Abdul Wajid, AIR 1963 SC 1.

17. BAILMENT The onus, which lies on a bailee to negative negligence on his part in case of loss of the bailed goods or articles, while in his custody, is discharged by his placing before the court all relevant or material facts under Section 106 of the Evidence Act ; then the onus shifts upon the bailor (plaintiff) to show that the true inference from those fact is negligence on the part of the bailee; the true view of the decision of the Privy Council in Dwarakanth's case. 67 The burden is always on the bailee to prove that he took reasonable care of the goods entrusted to him as a man of ordinary prudence would have exercised. 68 67 AIR 1917 PC 173. 68 R.S. Deboo v. M.V. Hindlekar, AIR 1995 Bom 68 (para 18). Also see Calcutta Credit Corporation Ltd. v. Prince Peter, AIR 1964 Cal 374, 384.

502

18. BENAMI The law as to Benami transactions is now governed by the Benami Transactions Prohibition Act, 1988. The law in respect of benami transactions prior to the said enactment may however be useful and are dealt with hereunder. In cases of Benami transaction, the burden of proof lies heavily on the person who claims against the tenor of the deed, that is, the alleged beneficiary to show that the ostensible vendee was a mere name lender and the property was in fact purchased only for his benefit. 69 The burden of proving that a particular sale is benami lies on the person who alleges the transaction to be a benami. 70 In a suit for possession of property filed by a widow against her son she claimed that she had purchased the property under a registered sale-deed out of the money acquired by the sale of her jewellery and ornaments and other sources and the defendant son alleged that the same was purchased by his father in the name of his mother benami and the consideration was paid entirely by his father. It was held that the initial burden of proof was on the defendant son who raised the defence of benami but when the parties adduced oral and documentary evidence, the question of burden of proof became insignificant. 71 The burden could be discharged by satisfying the well known criteria viz., in the case of Benami transactions: 72 4.   3.   3.   3.  

the motive for the transaction. the source of purchaser money relating to the transaction. the custody of the documents of title. the subsequent facts of possession. 73

In determining whether a transaction is Benami or not, all relevant factors have to taken into consideration along with surrounding circumstances, the position of the parties and their relationship to one another and the motives which would governed their act ions and also their subsequent conducts. 74 The decision on the question of Benami transaction must not rests upon suspicion but must be based on legal grounds established by legal testimony, as a person cannot be deprived of property upon mere conjecture or surmise. 75 The onus is on the party two asserts that an endowment is nominal but not real.

76

If all relevant facts are before the court then the inference should be drawn from them and the question of onus becomes academic. 77 To make an assessment on the basis that assessee was carrying on business in Benami name, the burden of proof is on department to show the Benami nature of transaction. 78 A fraudulent transfer voidable under Section 53, T.P. Act is not the same thing as a fictitious or benami transfer. If a transaction is fictitious, it was never intended to exist, though its object might be to defeat the rights of other people. The burden is greater in the case of a fraudulent transfer under Section 53, T.P. Act . If an intention to defraud is proved, the burden shifts to the transferee to make out good faith and consideration for the transfer.79 Where the plea of benami refers to a type of Sham transaction such as there was no sale at all, the party pleading benami has to establish that there was absolutely no consideration for the sale. 80 The burden of proof is heavy on a plaintiff who sues for a declaration of a document solemnly executed and registered, as a fictitious transaction. The burden becomes doubly heavy when the plaintiff seeks to set aside the order of the civil court, passed in execution proceedings, upholding the claim of a third party to a property sought to be proceeded against in execution. 81 A sale deed executed before in Sub-Registrar carries a presumption of genuineness and the burden to prove that it was benami is on the person who alleges it. 82 The onus of proof that the transaction in suit was a benami transaction

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was on the defendants when it was his case that the sale deed was taken benami in the name of the plaintiff by him with a view of preventing any trouble from Income Tax Department. 83 In a suit filed by the decree-holder under Order XXI, R. 63 of the Civil Procedure Code alleging that the claimant was the Benami dar of the judgment debtor, the onus to prove benami lies in plaintiff. 84 (a) Husband and Wife.-- The Privy Council in Guran Ditta v. Ram Ditta 85 observed "The deposit by a Hindu of his money in a bank in the joint names of himself and his wife and on terms that it is payable to either as survivor does not on his death constitute a gift by him to his wife. There is a resulting trust in his favour in the absence of proof of a contrary intention, there being in India no presumption of an intended advancement in favour of a wife. 86 Where there was no explanation for the transaction the law in England presumes an intention to benefit the wife or child. But in India no such presumption or rule exists. 87 In the last case in 88 the wife pleaded that the transaction in her favour was in pursuance of an ante-nuptial arrangement, the plea was rejected as the agreement was not proved and it was held that the husband is the real owner of the property. Deposit of money in wife's name does not amount to a gift. It is a resulting trust. If anybody says it was a gift he must prove it. 89 In a suit by vendee for specific performance of agreement by husband to sell land belonging to wife, the burden of proving that husband had implied authority of wife to sell her land is upon plaintiff and not upon subsequent transferee from wife herself. 90 The ordinary rule that the onus is on the person to prove that the property belonged to somebody other than the person in whom the title deed stands is not shifted even if the property stands in the name of a married woman. 91 Mere proof that the consideration was paid not by the wife but by the husband is not sufficient to establish the claim of benami . 92 (b) Benami (Father and Son).-- Where the property is purchased by the father in the name of his son and the latter claims it as his own by alleging that father intended to make a gift of the property to him, the onus rests upon him to establish such a gift as the presumption therefore is to favour of the transaction being benami . 93 The fact that the donor had debts at the time of gift is not conclusive to show that the gift was a Benami transaction. 94 (c) Benami's (other illustrations).-- The actual lender of money is entitled to sue upon on a mortgage though the mortgage deed is executed in favour of another. 95 There is nothing in law of partnership to prevent the plaintiff from making a case that apart from having a share in his own name he was holding a further share in the partnership in the benami of his son. 96 The burden is on income tax department toprove that what was apparent from the registered partnership deed was not real and that it was benami .97 In a suit for pre-emption, onus probandi of proving that pre-emptor is act ing benami for vendee is on the person making the allegation. 97 69 Ponnuswamy v. Narayanan, AIR 1977 Mad 19; A. Pillai v. A. Ilango, AIR 1969 Mad 252; Relying on Sitamma v. Sitapati Rao, AIR 1938 Mad 8; Union of India v. Moksh Builders, AIR 1977 SC 409; Krishnanand Agnihotri v. State of M.P., AIR 1977 SC 796; Kadderambi v. Fatima Bi, AIR 1981 Bom 406; Rama Kant Jain v. M.S. Jain, AIR 1999 Del 281 (para 37); G.P. Lakshmi v. T.B. Rajamma, 2000 AIHC 4885(Kant) . See also Sitaram Agarwal v. Subarata Chandra, (2008) 7 SCC 716, 721 (para 22) : (2008) 8 Scale 191. 70 Valliammal v. Subramaniam, (2004) 7 SCC 233, 239 (paras 12 and 13) : AIR 2004 SC 4187, relying on Jaydayal Poddar v. Bibi Hazra, (1974) 1 SCC 3; Krishnanand Agnihotri v. State of M.P., (1977) 1 SCC 816; Thakur Bhim Singh v. Thakur Kan Singh, (1980) 3 SCC 72; Pratap Singh v. Sarojini Devi, 1994 Supp (1) SCC 734 and Hevis of Vrajlal J. Ganatra v. Heirs of Parshottam S. Shah, (1996) 4 SCC 490. See also Jaya Karmakar alias Jabida Hossain v. Ajmal Hossain, AIR 2005 NOC 338(Cal) : (2005) 1 ICC 857. 71 Rebti Devi v. Ram Dutt, (1997) 11 SCC 714.

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72 Ram Narain v. Muhammad Hadi, (1899) 26 Cal 227(PC) ; P.B. Reddy v. State of Mysore, AIR 1969 SC 655; Surasaibalini v. Phanindra Mohan, AIR 1965 SC 1364 : (1965) 1 SCR 861; Natesa Chettiar v. N. Krishniah, AIR 1971 AP 179; Satya Deo Prasad v. Chander Joti, AIR 1966 Pat 110; Relying on Bilas Kunwar v. Desraj Ranjit Singh, AIR 1915 PC 96; M.S.M.S. Mara Cayar v. Abdul Majeed, AIR 1975 Mad 95; Disting from Sardar Gurbaksh Singh v. Gurdial Singh, AIR 1927 PC 230; Raghavan v. T. Thommi, AIR 1957 Ker 121; Relying on Gangadara Ayyar v. Subramania, AIR 1949 FC 88; Manchunder Deo Sree v. Gopal Chunder, M. Moo. Ind. App. 28; Nabibai v. Seth Vallabhdas, 1964 MPLJ 103(Notes) ; Appalanarasunlam v. Udalama, AIR 1959 AP 407; Oliyabi v. Intiyzbi, 1963 MPLJ 71(Notes) ; L.K. Textile Mills v. Its Workman, 1961 SC 860(Note) ; Shamsher Ali v. Shirin Bai (Smt.), ILR (1963) MP 878; (Maung) PO Kin v. Maung PO Shein, AIR 1926 PC 77; Bachansigh v. Bhupal Singh, AIR 1966 Punj 36(FB) (case premption); Papammal v. Chinnammal, (1964) 1 MLJ 306; S. Thygera Mudaliar v. Jayalakshmi, (1978) 2 Mad LJ 552; Chanchala Devi v. Puri Bank, AIR 1951 Ori 22; Thiruvaryamuthu v. O.R. Quilon, AIR 1951 TC 193; Maya Debi v. Rajlakshmi Debi, AIR 1950 Cal 1; Ram Chand v. Mati Thad, (1967) 2 All 341; Nagendriah v. Ramachandnah, (1969) 2 SC WR 568 : 1969 UJ 697; Niranjan Das v. Liquidator Puri Bank Ltd., AIR 1968 Ori 183; Kesavan v. Lekshmy Amma, AIR 1968 Ker 154; Hajar Khan v. Kesar Khan, AIR 1968 Guj 229; Mishra Bandhu Karyalaya v. S. Koshal, AIR 1970 MP 261; S. Fauja Singh v. Kuldip Singh, AIR 1978 All 279. 73 Union of India v. Moksh Builders, AIR 1977 SC 409; Surasaibalini Debi v. Phanindra Mohan Majumdar, 1965 SC 1364; Ponnuswamy v. Narayanan, AIR 1977 Mad 19; Papammal v. Chinnammal, 1964(1) MLJ 306; Sathadeo Prasad v. Chander Joti, AIR 1966 Pat 110; Gopinath Sarma v. Sasi Dei, (1980) 1 Cut 392; Khatoon Bee v. Ameena Bi, 1953 Mys 89; Ramchand v. Moti Thad, ILR 1967 (2) All 341; Hiri Luxmi v. I.T. Officer, AIR 1955 Pat 404; Relying on Hazaribagh M.M.C. v. Ashalata, AIR 1952 Pat 61; Abdul Latif v. Abdul Huqkazi, AIR 1924 Cal 523. 74 Manmohan Das v. Ramdei, 1931 PC 175. 75 S.M. Mansukhbai v. Poja Bijoy Singh, AIR 1921 PC 69. 76 M.A. Ramanjacharyulu v. M. Venkatanarasimhacharyulu, AIR 1974 AP 316. 77 Sachindranath v. Nilima, AIR 1970 Cal 38 following Sethuratnam Aiyaz v. Venkatachela, AIR 1920 PC 67; Badri Naraian v. Harnam Kuar, AIR 1922 PC 289. 78 Adinarayana v. Broke Bond Tea India Ltd., 1960 Ori 142. 79 Rukiayia Begum v. Radha Kishan, AIR 1944 All 214; Basauagowda v. S. Narayanaswamy, AIR 1984 Kant 225. 80 K.C. Das v. M.C. Das, AIR 1970 A&N 75; following in Sree Meenakshi Mills Ltd. Sree v. CIT, AIR 1957 SC 49. 81 Paras Nath Thakur v. Mohini Dasi, AIR 1959 SC 1204. 82 Deep Chand v. Dy. Director, AIR 1979 All 47; consolidation. 83 Ulhasi Bai Jethmal v. Bhagchand Marwari, ILR (1959) Bom 680; Deep Chand v. Dy. Director, AIR 1979 All 47. 84 Khabiramessa Bibi v. Sudhamoy Bose, 1958 Cal 733; Pappayamma v. Rama Raju, AIR 1962 Ori 69; Hira Luxmi v. I.T. Officer, AIR 1955 Pat 404. 85 AIR 1928 PC 172. 86 Gangadara Ayyar v. Subramania Sastrigal, AIR 1949 FC 88; Mujtabai Begum v. Mehbub Rehman, AIR 1959 MP 359. 87 Uzur Ali v. Bebee Ultaf Fatima, 13 MIA 332(PC) ; following in Kerwick v. Kerwick, AIR 1921 PC 56; Guran Ditta v. Ram Ditta, AIR 1928 PC 172; Lakshmiah Shetty v. Kothandarama Pillai, AIR 1925 PC 181. 88 Lakhmiah Shetty v. Kothandarama, AIR 1925 PC 181. 89 P. Narayana Menon v. P.B. Amma, AIR 1985 Ker 14. 90 Phuljhari Devi v. Mithailal, AIR 1971 All 494. 91 Protimarani Debi v. Patitpaban Mukherjee, (1956) 60 Cal WN 886; Approving in Official Assignee of Madras v. Natesa Gramani, ILR 1927 Mad 194; Radha Govind Roy v. Durgarani Dassi, (1955) 1 Cal 207; G. Begum v. M. Gaziuddin, AIR 1956 Hyd 52; Jeevan v. Mehtab, AIR 1953 Hyd 77; Gwashalal v. Kartar Singh, AIR 1961 J&K 66; Chanchala Devi v. Puri Bank, AIR 1951 Ori 22; Explaining Lakshmiah v. Kothandarama, AIR 1925 PC 181; Relying on Gangadara Ayyar v. Subramania, AIR 1949 FC 88 and Ratanchand v. Deo Chand, AIR 1946 Bom 157; Hazaribagh M.M. Co. v. Ashalata, AIR 1952 Pat 61. 92 Appalanarasimham v. Vdalama, AIR 1959 AP 407; Khatoon Bee v. Ameena Bi, AIR 1953 Mys 89.

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93 Suraj Mal v. Mohd. Bux, 1951 Raj 133; Inder Narayan v. Rupnarayan, AIR 1965 MP 107. 94 Maya Debi v. Rajolakshmi, AIR 1950 Cal 1. 95 Kumar Harish Chandra Singh Deo v. Basiclhar Mohanty, AIR 1965 SC 1738; Relying on Bilas Kunwar v. Desraj Ranjit Singh, AIR 1915 PC 96; Explaining in Gur Narayan v. Sheo Lal Singh, AIR 1918 PC 140. 96 V.R. Verma v. Mohan Kumar, AIR 1962 Cal 563(SB) . 97 Maru Rur Singh v. Gamesha Ram, AIR 1950 Pepsu 27.

19. BIRTH, DEATH AND AGE Where the allegation as to age of the plaintiff made in a plaint is denied by the defendants, it is for the plaintiff to establish the correctness of the facts alleged as to age in the plaint and he must discharge the burden by adducing necessary proof. 98 Where the question for determination is whether death was caused by accident or design, the initial presumption must in favour of death by innocent cause. This presumption may be dislodged by showing facts and circumstances which may be sufficient to nullify the probative value of the presumption. 1 Party asserting survival has to prove it like any other fact. There is no presumption of it founded on age, sex or other factor and also no presumption of death at the same time. 2 Under Sections 21Hindu Succession Act , the statutory presumption is the death of several persons by same calamity at same time that the presumption as to survivorship is according to seniority, the younger being presumed to have survived the older and this presumption is rebuttable. 3 The plaintiff claimed succession to the estate of a person who was not heard for more than seven years. The burden was on the plaintiff to prove the date of death. He could not be considered to be dead on the date on which the plaintiff filed the petition. 4 98 Channa Basavegowda v. Rangegowda, AIR 1951 Mys 38(FB) . 1 Ranjani Bai v. New India Assurance Co., AIR 1956 Bom 633. 2 Manni v. Paru, AIR 1960 Ker 195. 3 In re : Mahabir Singh, AIR 1963 Punj 66. 4 Darshan Singh v. Gujjar Singh, AIR 2002 SC 606 (para 5) : AIR 2002 SC 606, reversing L.P.A. No. 551 of 1975 dated 25.7.1979 (P&H).

20. CANCELLATION OF SALE DEED Where in a suit for cancellation of the sale deed and for possession filed on default by his purchaser to pay the balance of the purchase money as agreed upon, a compromise decree was passed whereby the defendants agreed to pay the balance of the purchase money by instalments and in case of default of any one instalment the suit was to be decreed and such default having been made the plaintiff applied for execution of the decree. It was held that it was for the defendants to prove that the fault was not theirs. 5 5 Bishan Singh v. Mahbub Ali, AIR 1948 PC 17.

21. CARRIERS In a suit for damages to goods entrusted for carriage by defendant's ship, defendant's plea was one of accident and then it is for him to prove the perils of sea. 6 6 R.S. Navigation Co. v. Firm Milapchand, AIR 1958 Assam 115.

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22. CASTE If a Hindu belonging to Adi-dravida caste converted to Christianity ceases to belong to Adi-dravida caste, then the burden lies on him to prove that on conversion he again became member of Adidravida caste. 7 The person claims to belong to particular socially and educationally backward class, must establish conclusively that he belongs to that caste. 8 Party alleging reversion to Hindu religion has to prove his assertion. 9 7 S. Rajgopal v. C.M. Armugam, AIR 1969 SC 101. 8 N.B. Rao v. Principal, Osmania Medical College, Hyd., AIR 1986 AP. 196. 9 Gigi v. Panna, AIR 1956 Assam 100.

23. VICARIOUS LIABILITY In the case of vicarious liability of State for the act s of its employees, the burden of proving existence of circumstances to claim immunity lies on State and its employees. 10 10 Harbanslal v. Union of India, 1970 J&K 5.

24. COMPROMISE Burden is on plaintiff to establish that the compromise decree in earlier suit is not binding upon him being mala fide and tainted with fraud and collusion. 11 11 Baisnab Padhan v. Parma Padhan, AIR 1964 Ori 156; Nandlal v. Naubat, AIR 1965 Pat 345

25. CONSIDERATION If the company's property was sold to another company and the payment of consideration was in shares, then the burden of proving consideration for sale was less than what is purported to be was on the transferor company. 12 In a suit for price of coal, the plaintiff alleged that price was to be paid by weight but the defendant alleged the payment was to be made by measurement. When no satisfactory evidence could be adduced by both the parties, it was held that it was for plaintiff to prove the claim. 13 The onus of proof on the question whether there was consideration of whether full consideration as stated in the document in fact passed is wholly on the defendant and it is not for the plaintiff to prove affirmatively. 14 The burden lay on the defendant to substantiate his denial of the receipt of consideration in the face of the document itself, admitting his indebtedness to the plaintiff in clear terms. 15 When the execution of the document was admitted by the defendant or proved, it is he to prove affirmatively about the failure or partial failure of the consideration. 16 Where plaintiff wants to set up a different form of consideration other than the recitals in the pronote, he has to prove the same; though the defendant denies consideration under the pronote. 17 When Mortgagor admitting execution but pleading want of consideration then burden to prove want of consideration is squarely on shoulders of mortgagor. 18 Burden of proving that no consideration passed under a promote is on A who denies it. In the case of an admission by A in another deed that he had received the amount under a promissory note, the burden is on A to prove that the admission was made under a mistake and is not true. 19 When there is an admission in the document between the parties of passing of the consideration, burden lies on the party making the admission to explain

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the admission and the admissions can be taken into consideration in assessing the value of the evidence produced by the parties. 20 It was held that when the court disbelieved the defendant's plea as to the circumstances under which the pronote was executed without consideration and also disbelieved the plaintiff's story, still the presumption under Sections 118 of the Negotiable Instruments Act would operate and the suit is entitled to be decreed. However in G. Vasu v. Syed Yaseen Sifuddin 21 following the view expressed by W ANCHOO C.J. in 22 J AGANATHRAO J. delivering the judgment of the Full Bench held that on a consideration of the expression "until the contrary is proved" in Sections 118(a)Negotiable Instruments Act and the expressions "proved" "disproved" and "not proved" and "shall presume" inSections 3 and 4 of the Evidence Act and the provisions relating to burden of proof contained in Sections 101 to 104 of the Evidence Act, that while dealing with the question as to whether the contrary, namely the absence of consideration, has been proved by the defendant the Court shall have to consider not only whether, it believes that consideration does not exist, but also whether it considers the non-existence of consideration so probable that a reasonable man ought, under the circumstances of the particular case, to act upon the supposition that the consideration does not exist. It was further held following the view of the Supreme Court in Kundanlal Rallaram v. Custodian Evacuee Property 23 , that the legal burden initially rested on the plaintiff but where the execution of the pronote is admitted, the evidential burden is initially shifted to the defendant who can adduce acceptable evidence or may also rely upon circumstantial evidence or may rely on presumptions contained in Section 114 or other provisions of the Evidence Act, then the burden shifts again to the plaintiff as the presumption under Sections 118Negotiable Instruments Act can be rebutted by the presumption under Section 114 of the Evidence Act24 ; when the burden shifts to the plaintiff and the legal burden of the plaintiff is revived to prove that the pronote is supported by consideration at that stage the presumption of law covered in Section 118 disappears and no longer subsists. 25 Where execution of a mortgage deed has been proved as required by law, an acknowledgment contained therein of receipt of consideration is evidence not only as against the mortgagor but also as against a purchaser from the mortgagor or an auction purchaser at a sale in execution of money decree. And if such a purchaser pleads want of consideration then the burden lies on him to prove it. 26 In a suit by the creditor for enforcing pious obligation of sons to pay their father's debt by proceeding against interest of the sons in ancestral property if they deny the factum of debt the creditor must prove that there was a real debt in existence. Admission made by father in the deed executed by him alone, does not have the same probative value against sons that it has against executants. Consideration will not be presumed but will have to be proved against sons, if disputed. 27 Onus rests on plaintiff to prove both the fact of execution and passing of consideration.

28

It is open to minor heir of a deceased mortgagor, to rebut the presumption as to receipt of consideration arising from proof of the execution of the mortgage by the deceased mortgagor by showing that the admission of receipt of consideration cannot be safely act ed upon. 29 When assignor admitted receipt of consideration, then burden is on him to show that he did not as a matter of fact receive it. 30 Where a plaintiff's case with reference to a bond which did not describe the consideration, is that the consideration was a previous account due, it is not necessary for him to produce documentary proof of consideration. The proof of the bond would be enough. 31 12 Associated Clothiers Ltd. v. I.T. Commr., AIR 1967 SC 788. 13 W.R. Collery v. Bihar State Co-op., Marketing Union, AIR 1978 Pat 57. 14 Thakur Bhagwan Singh v. Bishamber Nath, AIR 1940 PC 114; Sethupathi v. Chidambardra, AIR 1938 PC 123. 15 Triveni's Bi v. Leela Bi, 1955 Nag 170; State of Coorg v. P.K. Assu., AIR 1956 Mys 30; Micchu Kuanr v. Raghu Jane, AIR 1961 Ori 19; Chandanlal v. Aminchand Mohanlal, AIR 1960 Punj 500; Chhaganmal v. Heer Bai, (1960) 10 Raj 394. Relying on Bhoori v. Thakur Gulab Singh, AIR 1958 Raj 10; Ram Chand v. Chhunun Mal, AIR 1925 Lah

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471(FB) ; Sukha Nand v. Shiv Devi, 1935 Lah 14; Dungarmult v. Sambhu Charan, AIR 1951 Cal 55; Kattayam Bank v. Ahammed D.K. Rawtrher, AIR 1957 Ker 164; Radheyshyam v. Kashi Nath, 1957 MB 82; Pardhan Purushotham v. Shantilal Purushotam, AIR 1954 Sau 42; State v. Daulat Kumari, AIR 1969 Pat 25; Gangapani Palo v. Shyamadei Padhi, (1978) 1 Cut 511; Ramjelal v. Vijay Kumar, 1970 CrLJ 1176. 16 Sudharshan v. Chuha Singh, AIR 1956 HP 28; Sethupathi v. Chindambaram Chettiyar, AIR 1938 PC 123; T.A. Umapathi v. T.A. Masilamani, AIR 1987 Mad 156; Kishore Chunder Singh Deo v. Babu Ganesh Prashad, AIR 1954 SC 316; Chandanlal v. Aminchand, AIR 1960 Punj 500. 17 Venkata Reddi v. Nagireddy, AIR 1951 Mad 851. 18 Karan Raj v. Chunnilal, AIR 1964 Raj 72; Sudhakar Sahu v. Achutananda, AIR 1967 Ori 89. 19 Kishore Chandra Singh Deo v. Babu Ganesh Prasad Bhagat, AIR 1954 SC 316 : 1954 SCR 959; Shrinarain v. Chunnilal, AIR 1957 Raj 159; Sethu Pati v. Chidamburam, AIR 1938 PC 123. 20 Dasuram Mirjmal v. Brahmadatta Bajaj, AIR 1963 Assam 41; Suryanarayana v. Sreerama Chandra Murthy, 1951 Myd 18; Thatha Rao v. Jummarlal, AIR 1953 Hyd 179. In Janaka Lakshmi v. Madhavarao, AIR 1973 AP 103 following Tar Mohamed v. Tyeb Ebrahim, AIR 1949 Bom. 257. 21 AIR 1987 AP 139(FB) . 22 Heerachand v. Jeevraj, 1959 Raj 1(FB) and the V ARADACHARIAR J in Narasamma v. Veeraju, AIR 1935 Mad 769 and of L ORD D IPLOCK in Public Prosecutor v. Yuvaraj, 1970 AC 913(PC) . 23 AIR 1961 SC 1316. 24 See Narayana Rao v. Venkatappyya, AIR 1937 Mad 182. 25 followed Narasamma v. Veerraju, AIR 1935 Mad 769; Laxshmanaswamy v. Narasimha Rao, AIR 1937 Mad 223; Heerachand v. Jeevraj, AIR 1959 Raj 1(FB) ; Chandanlal v. Amin Chand Lal, 1960 Punj 500; Sunderlal Singh v. Khushi Ram, AIR 1927 Lah 864; Md. Shafi v. Md. Moazzam Ali, AIR 1923 All 214; Indermal v. Ram Prasad, AIR 1970 MP 40; Sharada Bai v. Syed Abdul Hai, (1971) 2 Mys LJ 407. Dessented from Alex Mathew v. Philip, AIR 1973 Ker 210; Lal Girwarlal v. Dau Dayal, 1935 All 509; Premraj v. Nathumal, AIR 1936 Nag 130; Ramani Mohan v. Surjya Kumar Dhar, AIR 1943 Cal 22; Barham Deo Singh v. Kari Singh, AIR 1936 Pat 498; M. Venkata Raghavulu Chetty v. Sabapathy Chetti, (1911) 21 MLJ 1013. 26 Jyoti Prakash v. Raj Kumar, 1957 All LJ 475; following in Narain Das v. Dilawar, AIR 1919 All 448; Relying on Babbu v. Sitaram, AIR 1914 All 319; and Ramchand v. Chhunun Mal, 1925 Lah 471(FB) ; Ram Sarup Saha v. Karam Ullah Khan, 1914 All 158(1); Dissenting from, Hoveli Shan v. Charandas, AIR 1929 PC 184. 27 Venkateswarlu v. Venkata Narasimham, AIR 1957 AP 557; Overruling in D. Subramanyam v. K. Bhavanarayana, AIR 1954 AP 17. 28 S. Mammad v. K. Kummad, AIR 1957 Ker 63; State of Coorg v. P.K. Assu, AIR 1956 Mys 30. 29 Dharshi Monji v. Chandulal Girdharlal, AIR 1950 Kutch 84. 30 Soma Sundaram v. Chidambaram, AIR 1951 Mad 282. 31 Sannamma v. Erappa, 1950 Kant 80.

26. CONSTITUTIONAL VALIDITY Under Article 13 of the Constitution of India , the socio-economic bio-data of challenged legislation must be produced by litigants explaining how, why and why not of each clause. 32 Persons who attack any provision as ultra vires the Constitution have to establish their contention. 33 The burden of proving that a particular reservation offends Art. 16[(]1[)] of the Constitution of India , is on the person who assails the reservation. 34 If the petitioner objected for transfer of village 'C' to Pakistan under part relating to Beruban Union No. 12 in Sch. 2, Constitution (9th Amendment) Act, 1960 the onus lies on him to show that the attempt made by the Govt. to transfer his village is illegal and unconstitutional. 35 Under Article 14 , Constitution of India , the burden is on the person challenging the legislation as discriminating. 36 Unless classification of employees for purposes of appointment or promotion is prima facie unjust, onus lies on the party attacking classification to show

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that it is unreasonable and violative of Article 16 of Constitution. 37 The burden is on the person who impeaches the law as violative of the constitutional guarantee. 38 Burden of proving invalidity of Rules lies on person who challenges their validity. 39 32 Ganga Sugar Corp. v. State of U.P., AIR 1980 SC 286. 33 Barham Dutt v. Peoples Corp. T.S. Ltd., AIR 1961 Punj 24. 34 State of Punjab v. Hiralal, AIR 1971 SC 1777; following in Gen. Manager, S. Rly. v. Rangachari, AIR 1962 SC 36; N.B. Rao v. Principal, Osmania Medical College, Hyd., AIR 1986 AP 196. 35 Ram Kishore Sen v. Union of India, AIR 1966 SC 644 : (1966) 1 SCR 430. 36 East India Tabacco v. State of A.P., AIR 1962 SC 1733; Shankaraya v. State of Mysore, (1965) 2 Mys LJ 245; W.C.E. Federation v. State, AIR 1968 Ker 18; Relying on U. Unichoyi v. State of Kerala, AIR 1962 SC 12; State of U.P. v. Kartar Singh, AIR 1964 SC 1135; Affirming in W.C. Employees Federation v. State, AIR 1967 Ker 199. 37 Govind Dattatray Kelkar v. Chief Controller, AIR 1967 SC 839; Banarasidas v. State, AIR 1956 SC 520; All India Station Masters' and Assistant Station Master's Association v. General Manager, Central Rly., AIR 1960 SC 384; General Manager, Southern Rly. v. Rangachari, AIR 1962 SC 36; Baijaynanda v. State of Bihar, AIR 1954 Pat 266. 38 Amrit Banaspati Co. Ltd. v. Union of India, AIR 1995 SC 1340, following Gauri Shankar v. Union of India, (1994) 6 SCC 349 : 1994 AIR SCW 4059. 39 In re : P. Bapanaiah, AIR 1970 AP 47.

27. REASONABLE RESTRICTION Onus to prove the reasonableness of restrictions imposed under Art. 19(1)(g) is on the state or the authority concerned. 40 40 Bhagwan Dass v. Municipal Corporation of Delhi, AIR 1995 Del 17 (para 11).

28. CONTRACT In the case of plea by insurance company that there was breach of term of policy in that the driver of insured vehicle did not have valid licence the burden to prove is on company. Burden to prove absence of privity of contract is on defendant. 41 See Contract Act (1872), S. 2. In a contract made with plaintiff by A and at plaintiff's request plaintiff's name was deleted and H 's name was submitted and a fresh contract made in H 's name by A . Onus of proving that plaintiff was liable on contract inspite of altered term was on A . 42 Where the contract was purported to be signed by the Dy. Secretary who was ostensibly authorised to sign contracts on behalf of the Government, if the Government denied such authority, then the burden of proof is on them to show that the person who actually executed the contract was not duly authorised to execute the said contraction behalf of the Government. 43 Party making allegation that the contract is conditional must prove the condition in contract. 44 In a suit for damages for breach of contract burden of proving that the frustration is self induced is on the plaintiff. 45 Where the purchaser under a contract for the sale of immovable property claims under Sections 27(b) of the Specific Relief Act , 1877, a decree for specific performance against a person claiming title from the vendor under a registered sale-deed executed after the contract, the onus is upon the defendant to prove that he is abona fide purchaser for value without notice of the earlier contract so as to bring himself within the exception provided by the above section. Himatlal v. Vasudev 46 and other decisions in India to the above effect, were approved. 47 Where agreement is challenged as being a restraint of trade, the onus of showing the restrictions were reasonably necessary to his interest is on the party supporting the contract. 48

510

In a suit for specific performance of agreement burden of proving is on the defendant alleging abandonment of contract by plaintiff. 49 Where the plaintiff fails to prove the contract in a suit for specific performance of contract on the basis of oral agreement, the mere fact that the defendant has admitted receipt of money but on altogether different account, does not shift the burden of proof to the defendant. 50 If plaintiff is buyer, he must allege and prove that he was ready and willing to pay for the goods. 51 It is for plaintiff to show that she had not forfeited her right of reconveyance even though she did not make the offer within time. 52 Onus of proof is on plaintiff to show that defendant committed the breach by not disclosing material defect. Mere averment in the plaint is not evidence. 53 The ordinary rule regarding the onus, incumbent on the plaintiff, has really no application to cases where the true boundary is to be ascertained. 54 Onus of proving a contract to be wagering one is on the party alleging it. 55 Burden of proving that suit contract was illegal as prohibited by law lies heavily on defendant who takes that defence. 56 Burden of proving allegation that share in managing agency was offered as bribe and was against public policy is on those who allege it. They are not required to prove it beyond reasonable doubt as in a criminal case. 57 In order to succeed in its claim for damages, the plaintiff must establish that the cancellation of the agreement by the defendant before the expiry of fixed period, was wrongful. 58 41 K.M. Patel v. Firm Md. Hussain Rahimbux, AIR 1981 SC 977. 42 Lila Dhar Nemchand v. Rawji Jugjiwan, AIR 1935 PC 93. 43 State of Bihar v. R.B. Ojha, AIR 1977 Pat 258; G.S. Partners Ltd. v. Union of India, AIR 1959 Cal 287. 44 Gangapani Palo v. Shyamadei Padhi, (1978) 1 Cut 512. 45 Narasu v. P.S.V. Iyer, AIR 1953 Mad 300. 46 (1912) ILR 36B 446. 47 Bhup Narain Singh v. Gokul Chand Mahton, 61 IA 115 : AIR 1934 PC 68. 48 N.S. Golikari v. Century Spinning Mills & Co., AIR 1967 SC 1098. 49 Neminath Appayya v. Jamboorao, AIR 1966 Mys 154. 50 Anandan v. T. Balamukunda Rao, AIR 2002 Mad 472, 480 (para 27). 51 A.R.G.K. & Co. v. M. Sitharamayya, AIR 1958 AP 427. 52 Phukan Ali v. Sahjadi, AIR 1954 Assam 54. 53 Ratanlal v. Nana Bhai, AIR 1956 Bom 175. 54 Bibhuti Bhushan v. Sadhan Chandra, AIR 1965 Cal 199. 55 Mannalal v. Biharilal, AIR 1956 MB 38; Suganchand v. Fulchand, AIR 1957 MP 194; Walayti Ram v. Bhagwan Dass, AIR 1960 Punj 471; Faujmal v. Nathulal, AIR 1965 Raj 115; Surajmal v. Doongarmal, AIR 1959 Raj 27. 56 Ratanlal v. Firm, Mangilal Mathurala, AIR 1963 MP 323. 57 Gulabchand v. Kudilal, AIR 1959 MP 151(FB) . 58 G.L. Kilkar v. State of Kerala, AIR 1971 SC 1196, 1198 : (1971) 3 SCC 751.

29. CUSTOM If a party pleads in specific terms as to what is the custom that he is relying, he must prove that custom. 59

511

The general custom of Punjab is that a daughter excludes collaterals in succession to self-acquired property of her father. Therefore initial onus, is on the collaterals to show that the general custom has been varied by a special custom excluding daughters. 60 Onus of proof is upon party who sets up a custom at variance with general law. 61 The burden of proving a family custom lies heavily on the party who sets it up, it is incumbent on him to prove it by clear and cogent evidence. 62 Burden of proof is on person who alleges it to show that there is a family custom of excluding the females from taking the property as heirs. 63 Here a Hindu belonging to Adi-Dravida Caste is converted to Christianity burden lies on him to prove that on reconversion he again became member of Adi-Dravida Caste. 64 Burden of proving that in the matter of succession Hindu Law applies to Mewatis would be upon person alleging it. 65 Burden of proof of a community custom is much heavier than that of a family or local custom. It would require examples spread throughout India and the number must necessarily be correspondingly, large. 66

Where the Govt. Test Institutions after conducting tests on the imported goods, reported them to be of a certain quality, the burden was heavy on the Customs Department to prove by laying evidence that the test reports were incorrect or erroneous. 67 Where the plaintiff's case was that the property in suit was his father's ancestral property to which customary law applies, the burden to prove that the property was ancestral one was held to be on the plaintiff. 68 The party alleging the custom of adoption in Kashmir Valley must prove by satisfactory positive evidence the existence of the custom so alleged. There is no presumption in favour of custom and support from Section 50 of the Evidence Act cannot be taken to establish a custom. 69 If the right of pre-emption is claimed by a non-Muslim on the basis of custom, the existence of custom is a matter to be established by proper evidence by the party who claims as such. 70 59 Kochan Kani Kunjaraman Kani v. Mathevan Kani Sankaran Kani, AIR 1971 SC 1398; Munshi Dass v. R. Mal Singh, AIR 1977 SC 2002; Mahant Bhagavan Bhagat v. Girijanandan Bhagat, AIR 1972 SC 814; Brahmananda Puri v. Neki Puri, AIR 1965 SC 1506; Salekh Chand v. Satya Gupta, (2008) 13 SCC 119, 130 (para 22), following Hem Singh v. Harnam Singh, AIR 1954 SC 581. 60 Kehar Singh v. Chanan Singh, AIR 1968 SC 806; Salig Ram v. Maya Devi, AIR 1955 SC 266; Abbasali Shah v. Mohd. Shah, 1951 MB 92; Nekhi Ram v. Hazari, 1952 Punj 226. 61 Ramdhanlal v. Radhesham, AIR 1951 SC 210. 62 Mohd. Bagar v. Naim-un-Nisa Bibi, AIR 1956 SC 548, 550 (para 6). 63 Mohammad Baqar v. Naim-un Nisa Bibi, AIR 1956 SC 548. 64 S. Rajagopal v. C.M. Armugam, AIR 1969 SC 101. 65 Hooriya v. Munna, AIR 1956 MB 56. 66 Biswanath v. Dhapu Debi, AIR 1960 Cal 494. 67 Polyglass Acrylic Manufacturing Co. Ltd. v. Commissioner of Customs, (2003) 4 SCC 762 (para 11). 68 Kura v. Jag Ram, AIR 1954 SC 269 (paras 4 & 23). 69 Yaqoob Laway v. Gulla, AIR 2005 NOC 341(C) (J&K). 70 Audh Behari Singh v. Gajadhar Jaipuria, AIR 1954 SC 417, 422 (para 17).

30. DAMAGES In a suit for compensation against the defendant for extracting coal from underground within area belonging to the plaintiffs, the onus is always on the plaintiffs to establish firstly that the land alleged to be encroached upon belongs to them, secondly, there was encroachment of the land and thirdly the encroachment was done by the defendants. 71

512

In a suit for damages it is for the plaintiff to adduce reliable evidence to show what damage he had suffered. 72 In a suit for damages for non-delivery of goods, the seller has to prove that the booking of the goods became impossible to make delivery of goods in terms of the contract. 73 In a suit to recover value of car on the allegation that it was lost in transit the burden of proving it was on plaintiff/consignor. 74 Where plaint was filed on a definite averment that the storing agent did not deliver certain goods and claimed a specific amount towards their value burden lies on the plaintiff to prove his case. 75 Loss of pecuniary benefit due to death of deceased and to sustain action under Fatal Accidents Act , the plaintiff has to prove reasonable expectation of pecuniary advantage. 76 The value of goods and extent of damage have to be proved by the claimant because the railway certificate is not the final thing. 77 In a class for compensation under Section 110(A) of the M.V. Act, it is for the claimants to adduce evidence and show what the income of the deceased was and what pecuniary loss they had suffered by the death. Once they adduce such evidence, it is then for the opposite party to adduce evidence to show the amount to be deducted from the pecuniary loss sustained by the claimants. 78 In a suit by the employee for breach of contract of employment and liability for payment of salary by way of damages, the burden to prove existence of mitigating circumstances is on the employer. 79 In a claim for damages under Sections 110-B of Motor Vehicles Act , onus of proof normally is on plaintiff. Where facts and circumstances made out a clear case of negligence, it is for defence to prove that he was not negligent.80 An insurance company pleaded breach of a term of the policy in that the driver did not have a valid licence, but produced no evidence of the lack of licence. The Company's case failed 81 Where there was no direct evidence to prove that a person purchased ticket and boarded a train or that he died in the accident, the claim for compensation failed. 82 Genera damages need not specifically be proved.

83

71 Kundan Bai v. Skh. Safdar Ali, AIR 1960 Pat 266; Sadanand v. Emperor, AIR 1920 Pat 378; Srish Chandra v. Ramji Beeham Das, AIR 1936 Pat 179; Adjai Coal Co. Ltd. v. Pannalal, 1930 PC 115. 72 Kunwar Lal v. Kamakhya Narayan, AIR 1957 Pat 350. See also Draupadi Devi v. U.O.I., (2004) 11 SCC 425, 454 (para 79) : AIR 2004 SC 4684; Shaikh Gafoor v. State of Maharashtra, AIR 2008 (NOC) 1637(Bom) . 73 H.D.C. Market v. Form Murlidhar, AIR 1957 MB 53; Reversed on another point in Muralidhar Chiranjilal v. Harish Chandra Dwarkadas, AIR 1962 SC 366. 74 V.P. Desai v. Union of India, AIR 1958 MP 297. 75 Aswini Kumar v. Union Territory, Tripura, AIR 1969 Tri 26. 76 Govt. of India v. Jeeraj Alva, AIR 1970 Mys 13. 77 Union of India v. Madan Mohan, AIR 1981 Ori 9. 78 Ishwar Devi v. Union of India, AIR 1969 Del 183. 79 Hira-nadini v. B.B.D. Mfg. Co., 1969 Bom 373. 80 Subhash Chander v. Ram Singh, AIR 1972 Del 189. 81 N.Y. Kamat v. A.A.D. Martin, AIR 1985 SC 1281. 82 Sudha Srivastva v. Claims Commr ., N.R. AIR 1985 All 52. 83 Ramdas v. Raja, 1958 Raj 257.

31. DECLARATORY SUITS

513

Where in a suit, the plaintiffs admit that the defendant is in possession of the suit properties but they assert that he is there as mutawalli and that his possession is on behalf of the Sunni Muhammadan Community and for that reason the plaintiffs say that a declaratory suit will lie and that they need not sue for possession, then the burden lies on the plaintiffs to prove their claim. 84 In a suit by the creditors for declaration that the transfer of property made by the debtor was fraudulent and as such was not binding on them, the onus to prove want of good faith in the transferee is on the creditors who impugn the transaction. But where fraud on the part of transferer is established, the burden of proving that he is a transferee in good faith fell within the exception. 85 Where in a suit for declaration of title to certain property, the plaintiff relies on a gift deed in her favour executed by her husband in respect of his self-acquired property, and if the defendant alleged that it is an ancestral property of Hindu Joint Family, then the main burden will be on the plaintiff to prove that the property is self-acquired property of her husband. 86 When the plaintiff seeks a declaration to the effect that he is not liable under the Employee's Provident Fund Act and seeks a permanent injunction restraining the department from enforcing the provisions of the Act though no positive evidence has been adduced by the department, as the reliefs which the plaintiff claims are equitable reliefs, the initial burden of proving that he is entitled to these equitable reliefs is upon the plaintiff. It may be that very slightest evidence may be sufficient to satisfy the court that the burden has been discharged. 87 In a suit for declaration of title, the plaintiff must prove his title and he cannot take advantage of the weakness of the defendant. 88 Where the suit was filed by the plaintiff to get declared the sale deed executed in favour of the defendants as invalid on certain grounds, the plaintiff was required to prove his case on pleaded grounds by leading necessary documentary and oral evidence, as those grounds were controverted by the defendants. 89 84 Md. Shah v. Fasihuddin Ansari, AIR 1956 SC 713. 85 Basavagowda v. S. Narayana Swamy, AIR 1986 Kant 225. 86 Bai Chandan v. Rajakbhai, AIR 1962 Guj 9 relying on Moran Mar Basselios Catholicos v. Thukalan Paulo Avira, AIR 1959 SC 31. 87 S.T. Trading Co. v. Union of India, AIR 1966 Guj 116. 88 R.K. Madhuryyajit Singh v. Takhellambam Abung Singh, AIR 2001 Gau 181 (para 16). 89 Heirs Kanthilal Purshottamdas Patel v. Dahiben Jagdish Rathod, AIR 2003 Guj 82, 85 (para 9).

32. DISCHARGE AND PAYMENT Accused admitted that he received money but contented that he handed it over to J , who was incharge of office. It was held that the burden of proof was on him to show what he had done with money and that when he failed to discharge that burden, the conviction has to be upheld. 90 When once a mortgage has been admitted, the onus is on the mortgagee to show that the mortgage has been extinguished by subsequent sale. 91 Normally, the debtor must show agreement that payment towards interest would be appropriated towards principal under Order XXI, Rule 1, C.P.C. 1 Burden is on judgment-debtor to prove the plea of discharge under Section 30 Bengal Money Lenders Act . 2 Payment by a judgment-debtor to a partner of a decree-holder firm binds all the partners and, if any partner disputes the payment, the burden is upon him to prove the special circumstances under which it does not bind him. 3 In a suit on a bond, the plaintiff accounted for the non-production of the bond, by alleging that the defendant had stolen it. The defendant admitted the execution of the bond, but alleged he had paid it. It was held that the defendant was bound to begin and prove payment, either by the production of the bond or other evidence or by both. 4 Suit based on promissory note was contested by the defendant on the ground that he had repaid the amount. If he claims that he had received the amount in settlement of previous debt, then the burden of proof is on him to prove the previous debt. 5

514

The mere fact that the promissory note is found to be in the possession of the plaintiffs is not sufficient for holding that the liability under it has not been discharged. 6 Where the defendant borrower specifically denied the execution of the promissory note, burden was on the bank to prove the same. 7 In a case of misappropriation of amount of scholarship of scheduled caste students by the Principal and Member of Management committee of a private unaided educational institute, the burden to establish that it was actually disbursed to scheduled caste students was held to be upon the Principal and Member of Management Committee in whose joint account the said money was transferred from Government treasury. 8 90 Madanlal v. State of Punjab, AIR 1967 SC 1590. 91 Wali Mohammad v. Md. Baksh, 1930 PC 91. 1 Meghraj v. Bayabai, AIR 1970 SC 161. 2 Radha Kisen v. Keshavdeo, AIR 1954 Cal 105. 3 Raya Reddaiah v. Krishna Finance Corporation, 2001 AIHC 2100 (para 7) (AP). 4 Chuni Kuar v. Udai Ram, (1883) 6 All 73. See also Bhandari Construction Co. v. Narayan Gopal Upadhye, (2007) 3 SCC 163, 167-68 (para 15). 5 Prem Chand v. Laxmichand, AIR 1971 MP 124. 6 K. Unikali v. Krishna Vasanthi, AIR 1952 TC 203. 7 Canara Bank v. Vara Trading Co., AIR 2006 Kant 88, 93 (para 21). 8 Savita Verma v. State of U.P., 2002 AIHC 2428, 2430 (para 6) (All).

33. DISCIPLINARY PROCEEDINGS In a disciplinary or departmental inquiry, the question of burden of proof depends upon the nature of charges and the nature of explanation put forward by the delinquent officer and does not always lie on the department. Where loans were disbursed to ineligible persons on the basis of wrong notings of an officer, the burden to establish his case was on the officer. 9 9 Orissa Mining Corporation v. Ananda Chandra Prusty, AIR 1997 SC 2274.

34. DOMICILE AND CITIZENSHIP In a prosecution under Section 14, Foreigners' Act, the accused pleaded that he was domiciled in India and was residing in India when the Constitution of India came into force, the burden is upon him and he should be given a chance to prove it. 10 Onus to prove loss of citizenship is on party seeking to deprive a person of his citizenship right. Onus lies upon person claiming the citizenship. 12

11

The onus of proving that a domicile has been chosen in substitution for the domicile of origin is upon those who assert that the domicile of origin has been lost. 13 10 Abdul Sattar Haji Ibrahim Patel v. State of Gujarat, AIR 1965 SC 810; Reserving in State v. Abdul Sattar, AIR 1963 Guj 226. 11 Abida Khotoon v. State of U.P., AIR 1963 All 260. 12 State of Abdullah Khan , AIR 1963 Raj 11. 13 Kedar Pandey v. Narain Bikram Sah, AIR 1966 SC 160; M. Authony v. State of Bombay, 1956 Bom 501.

515

35. EASEMENTS Exercise of a right in assertion of an easementary right is one of the essential ingredients which a claimant has to establish. 14 In law the owner of every open space is entitled to build over it unless his action in building interferes with as easementary right already acquired. 15 14 Ratanchand v. Kasim Khaleel, AIR 1964 Mad 209; Lambodar v. Ramesh Chandra, 1958 Ori 248; Chidambara v. T. Vedayya, AIR 1967 Mad 164. 15 Veerappa Mallappa v. Nagappa Fakuirappa, AIR 1965 Mys 292.

36. EJECTMENT In any act ion by an inamdar to evict his tenants and by a zamindar prior to the enactment of the Madras Estates Land Act, 1908 to evict hisraiyats from their holdings the burden was on the plaintiff to make out the right to evict by proving that the grant included both the melvaram and the kudivaram interests or that the holders of land or their predecessors were let into possession by the inamdar or the zamindar under a terminable lease. 16 A plaintiff suing for ejectment can only succeed on the strength of his own title. There is no obligation on the defendant to prove possible defects in that title. 17 In a suit for ejectment it is for the plaintiff to prove his title and the Court is not concerned with the weakness of the title of the defendant. The defendant may be a trespasser, but as a defendant in possession, he is entitled to ask the plaintiff to prove strictly his title. 18 The ground of eviction that the tenant had impaired materially the value of the building, has got to be proved by the landlord. 19 However, if certain act s were proved or admitted to have been committed by the tenant, they speak for themselves. 20 The burden lies upon the plaintiff to prove that he was in possession within 12 years of the suit.

21

Agricultural lease granted by the mortgagee in possession will be binding on mortgagor even though the mortgage has been redeemed provided that it is such that a prudent owner of property would enter into, in the ordinary course of management. This being in the nature of an exception, it is for the person who claims benefit thereon to strictly establish it. 22 The burden of proving greater hardship than that of the landlord so as to deprive him of his established right to seek eviction lies on the tenant. 23 16 Sunkavilli Suvarna v. Goli Sathiraju, AIR 1962 SC 342; Relying on Lakshmanma v. Venkatesbasula, AIR 1949 PC 278. 17 Moran Mar Basselios Catholicos v. Most. Rev. Mar Poulose Athonsius, AIR 1954 SC 526. 18 Totoba Ganu v. Tarabhi, 1957 Bom 280; Santoshilal v. Chandra Mohan, AIR 1956 MB 121; Shyamacharan v. Sheojee Bhai, AIR 1964 MP 288; Hanumantha v. Gowdaiah, AIR 1953 Mys 44. 19 B. Ramesh v. H. Nandeeswari, 2000 AIHC 2152 (para 9) (Mad) : AIR 2000 NOC 59(Mad) . See also G. Subramani v. Y.E. Seshachari, 2000 AIHC 2331 (para 10) (Mad); Badrinarayan Chunilal Bhutada v. Govindram Ramgopal Mundada, (2003) 2 SCC 320 (para 7) : AIR 2003 SC 2713. 20 G. Subramani v. Y.E. Seshachari, 2000 AIHC 2331 (para 11) (Mad). 21 Rense Kohl v. Singa Hoe, ILR (1958) Cut 186. 22 Asa Ram v. Ram Kali, AIR 1958 SC 183 : 1958 SCJ 575. 23 Badrinarayan Chunilal Bhutada v. Govindram Ramgopal Mundada, (2003) 2 SCC 320 (para 7) : AIR 2003 SC 2713.

516

37. EVICTION BY TITLE PARAMOUNT Eviction by paramount title-holder is a good defence taken by a tenant. If proved, it brings an end to the obligation of the tenant to put the lessor landlord in possession of the leased property, but the burden of proof lies on the party who sets up such defence. 24 24 Vashu Deo v. Balkishan, (2002) 2 SCC 50 (paras 6 and 10) : AIR 2002 SC 569.

38. ELECTION CASES In election petition the conditions for setting aside election must be established by the party who seeks to have it set aside. 25 Burden to prove invalidity of votes is on the petitioner. 26 Burden to raise the necessary pleadings and adduce evidence to prove such averments as would enable the setting aside of the result of an election on any of the grounds available in law, lies on the person who challenges the election failing which the petitioner fails. 27 The burden of proving that the election is liable to be set aside for corrupt practice is heavily on the applicant, though the petitioner need not prove the allegations beyond all reasonable doubt as in a criminal prosecution. 28 It cannot be said that the mere fact that the wasted votes are greater than the margin of votes between returned candidates and the candidate securing the next highest number of votes must lead to the necessary inference that the result of the election has been materially affected. That is a matter which has to be proved and the onus of proving it lies upon the election petitioner. 29 In election cases it must firstly be shown that there has been improper reception of any vote and secondly it must be shown that as a consequence thereof the result of the election has been materially affected. The both the conditions are cumulative and both must be established. The burden of establishing them is on the person who seeks to have the election set aside. 30 Where a nomination paper has been improperly rejected there is a strong presumption that the result of the election has been materially affected and the burden is on the person seeking to uphold the election to prove the contrary. 31 The burden is on the party challenging declaration alleging malpractices and such other acts to prove those allegations. Further, unless he proves that had it not been for the malpractices, he would have secured more votes, but he would not succeed and it could then be said that the result of the election was not materially affected. But if challenge is not on any malpractices but non-compliance with any provisions of the Act and if the petitioner succeeds in establishing the non-compliance, the declaration of the returning officer that the respondent is elected for the general seat would naturally amount to materially affecting the result which deprives the petitioner from being declared elected. 32 Where the question was of proving the corrupt practice of under influence under the Representation of the People Act , 1951, the Supreme Court said.33 "There is no ritualistic formula nor a cut and dried test to lay down as to how a charge of undue influence can be proved but if all the circumstances taken together lead to the irresistible inference that the voters were pressurised, threatened or assaulted at the instance of either candidate, they should be sufficient to vitiate the election. While insisting on standard of strict proof, the Court should not extend or stretch this doctrine to such an extent as to make it well-nigh impossible to prove an allegation of corrupt practice. Such an approach would defeat and frustrate the very laudable and sacrosanct object of the Act maintaining purity of the electoral process". In an election case where election of a successful candidate was challenged by disputing his caste, it was held by the Apex Court that the burden to prove that the elected candidate was a bedar and not a Nayak, lay on the petitioner, by adducing a positive evidence and not by a bare assertion as such. 34 The onus to show that a statement of fact which was published by a candidate or his agent or by any other person with the consent of the candidate, affecting his personal character or conduct is on the election petitioner under Section 123(4),Representation of People Act. 35

517

In challenging that the candidate does not belong to a particular scheduled caste is on the petitioner to show to which particular caste the candidate belongs. 36 Where election was challenged on the ground that the elected candidate was below 25 years of age on the date of filing the nomination paper and thus disqualified under Article 137 of ConstitutionIndia , the burden to prove that the age was below 25 years on relevant date is on election petitioner. 37 Where the election of the returned candidate was challenged on the ground that she had not attained the minimum age prescribed for the election of the post of ward member as per her date of birth mentioned in the Scholar's Register and she submitted that her act ual date of birth was not recorded in the Scholar's Register, the initial burden to prove the above fact was held to be on the party challenging the election, but once it was proved that her admission form was submitted by her uncle mentioning his date of birth, having special knowledge about it, he being her near relative, the onus to prove her correct date of birth was held to be shifted to her. 38 Where a petitioner challenged the election by accepting improper nomination or by refusal of a nomination, the onus lies upon the petitioner. 39 Question whether poster containing allegations against character of appellant, candidate at election, was distributed by respondent, (successful candidate) the burden is on appellant to prove that such distribution took place at various meetings. 40 The burden to prove, that the election petition was not maintainable or the same should be dismissed at the threshold, lay on the respondent and not on the petitioner. The said burden becomes heavier having regard to the fact that the Registry of the High Court categorically arrived at a finding that the said petition did not contain any defect. 41 Where the election of the petitioner was challenged on the ground that the petitioner incurred disqualification under Section 19(3) of A.P. Panchayat Raj Act (13 of 1994) due to having three children at the time of nomination, the burden to prove that she was not disqualified on that ground lay on the petitioner who was declared elected in the election. 42 Where the petitioner pleaded that he had tendered resignation from the office of profit and hence he was not disqualified from contesting the election, the burden to prove that his resignation was accepted, squarely rested upon him and in which he had failed, thus incurring disqualification. 43 25 Hari Vishnu Kamath v. Ahmad Ishaque, AIR 1955 SC 233, 246 (para 30) : 1955 (1) SCR 1104. 26 Sudhir Kumar v. Abhoy Pada, 1966 Cal 141. 27 Harikrishna Lal v. Babu Lal Marandi, AIR 2004 SC 1067 (para 20) : (2003) 8 SCC 613. 28 Amolak v. Bhagawan Das Arya, AIR 1977 SC 813; Bhanu Kumar Shastri v. Mohanlal Sukhadia, AIR 1971 SC 2025, 2038 (para 55); Jagdev v. Pratap, AIR 1965 SC 183; Harischandra Bajpai v. Triloki Singh, AIR 1957 SC 444; allegations must be sufficiently clear and precise; Ram Sharan Yadav v. Thakur Muneshwar Nath Singh, AIR 1985 SC 24; Nizamuddin Ahmed v. Narbada Prasad, (1976) 1 SCC 1 : AIR 1975 SC 1909; Razik Ram Choudhary v. Chouhar Jaswant Singh, AIR 1975 SC 667; Kanwarlal Gupta v. Amarnath Chawla, AIR 1975 SC 308; Surya Kant Roy v. Imamul Hak Khan, (1975) 1 SCC 531 : AIR 1975 SC 1053; Hem Raj v. Ramjilal, (1975) 4 SCC 671 : AIR 1975 SC 383; Shantilal v. Bipinlal, AIR 1964 MP 92; Mohd. Yunus Saleem v. Shiv Kumar Shastri, (1974) 4 SCC 854; Prananath v. Banamali, AIR 1958 Ori 228; Inderlall v. Lal Singh, AIR 1961 Raj 122; Reserved on another point in Inderlal v. Lal Singh, AIR 1962 SC 1156; Krishna Kanta Misra v. Banamali Basu, AIR 1968 Ori 200; Ghasiram Mashi v. Omkar Singh, AIR 1968 Ori 99; Projengton Momin v. Elwin Sangma, AIR 1973 Gau 145. 29 Vashist Narain Sharma v. Dev Chandra, AIR 1954 SC 513. 30 Bidesh Singh v. Madhu Singh, 2005 AIHC 1317, 1335 (para 17) (Jhar). 31 Surendranath Khosla v. S. Dalip Sing, AIR 1957 SC 242; Barot Jagannath Magantal v. Purshottamdas, (1967) 1 Guj 76; See also Chatturbhuj Vithaldas Jasani v. MoreshwarParashram, 1954 SCR 817, 842 : AIR 1954 SC 236; Karnail Singh v. Election Tribunal, 10 Elec LR 189. 32 Dippala Suri Dora v. V.V. Giri, AIR 1958 AP 724. 33 Ram Sharan Yadav v. Thakur Muneshwar Nath Singh, AIR 1985 SC 24 at 25; Takvri Devi v. Rama Dogra, AIR 1984 HP 11, proof of undue influence. 34 Laxman Siddappa Naik v. Kattimani Chandoppa, Jamappa, AIR 1968 SC 929. 35 Kumara Nand v. Brij Mohanlal Sharma, AIR 1967 SC 808; Santi Swaroop v. Abdul Rehman, AIR 1965 MP 55. Onus is on the unsuccessful candidate to prove G. Yagheesam Pillai v. M.R. Krishnamurthi, (1966) 1 Mad 580.

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36 Laxman Chandappa Jampanna v. Kattimani Siddappa Naik, AIR 1968 SC 929; Abhoy Pada v. Sudhir, AIR 1967 SC 115; Bhaiyalal v. Harikishan Singh, AIR 1965 SC 1557; B. Basavalingappa B. v. D. Munichinappa D., AIR 1965 SC 1269. 37 Brij Mohan Singh v. Priya Brat Narain Sinha, AIR 1965 SC 282; Brij Mohan Singh v. Priya Brat Narain Sinha, AIR 1965 SC 282 : (1965) 3 SCR 861; Birad Mal Singhvi v. Anand Purohit, AIR 1988 SC 1796, at p. 1808; Tara Devi v. Sudesh Chaudhary, AIR 1998 Raj 59 (para 19); Abdul Rahiman v. Sadasiv, AIR 1968 Ori 84; Harish Chandra v. Triloki Singh, AIR 1957 SC 444; Tazuddin Ahmed v. Dhaniram, AIR 1959 Assam 128; Rakesh Chandra Das v. S.K. Dutta, AIR 1957 Assam 118; Shiv Ram v. Shiv Charan, AIR 1964 Raj 126; Ram Dass v. Chandulal, AIR 1969 J&K 12. 38 Sushila Devi v. Bhagoti Devi, 2005 AIHC 2623, 2625 (para 11) (Raj). 39 Yashist Narain Sharma v. Devchandra, AIR 1954 SC 513; Brij Mohan Singh v. Priya Brat Narain Sinha, AIR 1965 SC 282. 40 Nihal Singh v. Rao Birendra Singh, 1970 (3) SCC 239. 41 Chandrakant Uttam Chodankar v. Dayanand Ragu Manddvakar, AIR 2005 SC 547 (para 45) : (2005) 2 SCC 188. 42 R. Jayalakshmamma v. Election Tribunal-cum-Senior Civil Judge, Punganur, 2004 AIHC 4791, 4800 (para 31) (AP). 43 Gavara Satti Babu v. Gavara Siva Sankar Rao, AIR 2009 (NOC) 527(AP) . See also Golla Jayamma v. District Collector, Mahaboobnagar, AIR 2009 (NOC) 530(AP) .

39. EXECUTION OF DOCUMENT In the case of a suit on a bond when execution and consideration are both denied by the defendant, the primary burden to prove execution as well as consideration is on the plaintiff. 44 In a suit under Orders XXI, R. 63 of C.P.C. 1908, (Now Rule 58(5)), the burden of proof is heavy on the plaintiff suing for declaration that the document on which the order of the executing court was passed was a sham & fictitious one.45 There is presumption in favour of plaintiff that a suit bond bearing signature of defendant and duly attested and registered had been validity executed. If defendant wants to challenge its genuineness or validity, it is he who has to establish his contention. 46 When a signature or thumb impression in a document is admitted by a person to be his and it purports to be in token of the execution of the document by him then a presumption rises that he must have executed it. 47 Where there is no reason forthcoming why a different ink has been used for the purpose of the signatures of the attesting witnesses from the ink used for the body of the document and the thumb impression on the deed, the execution of the document is suspicious. 48 Where the defendant admits his signature on a voucher that an amount was advanced by way of loan the burden is on him to prove that he signed on a blank paper. 49 Where the defendant admitted only that he put his signature on a blank paper which he alleged had possibly been utilised for fabricating document, the onus of proving due execution must be thrown on the plaintiff. 50 Initial onus on plaintiff is not discharged by proving identity of thumb impression. It must be further proved that the thumb impression was given on the document after it had been written out and completed. 51 A heavy burden is laid on the defendant to prove that plaintiff had not only agreed to sell out but she knew what was being written when the plaintiff is admittedly blind, and her signature on the sale deed cannot have any force 52 and also when an old lady having no proper vision contended that she wanted to execute only a power of attorney and not a settlement deed. 53 Where a person ignorant of English affixed his mark to a document written in English, the onus to prove that the document was properly explained and interpreted to him so as to make him understand its true import is on the party relying on the document. 54 'A' filed a suit to evict 'B' from the suit land on ground that 'B' was a licencee, relying on letter in Urdu and signed by 'B' in Mundi . Admission of the signature by 'B' who was an illiterate and did not know Urdu, was held not amount to admission of document. Burden was on 'A' to prove that 'B' was a licencee and the document was properly explained to him. 55 Onus to prove that the document was properly explained and interpreted to an illiterate person affixing his

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mark so as to make him understand its true import is on the party relying on the document. 56 Where a woman, illiterate and unaware of the contents of a document executed a sale deed in favour of a close relative under the impression, it was a mortgage, it was held that this was a case of non est factum and the burden lay upon the vendee to show the plaintiff was fully aware of the nature of the document. 57 The Supreme Court observed : "The burden of proof was always upon the person who sought to sustain a transaction entered into with a pardanashin lady to establish that the document was executed by her after clearly understanding the nature of the transaction. It had to be established not only that it was her physical act but also that it was her mental act. The burden could be discharged not only by proving that the document was explained to her and that she understood it, but also by other evidence, direct and circumstantial." 58 Where in a mortgage deed executed by Pardanashin lady which was read out and sufficiently explained to her and the language of deed was quite clear and intelligible to her, in such cases, the proof of independent advice is not necessary. 59 Where the court losing sight of the right of onus thrown upon persons claiming under an instrument executed by a pardanashin woman comes to a conclusion that she executed the deed knowingly, largely on circumstantial evidence which is quite consistent with the possibility that the woman did not in fact understand the nature of the deed that she was executing, the finding is vitiated. 60 Where a sale deed contains an admission made by one of the parties, and that party challenges the sale deed then the onus to prove falsity of contents of deed is on that party only. 61 Where contention was that the document was a sale deed, but in act ual fact, it was intended by the parties only to be a mortgage. The burden is on the party who alleges the same. 62 44 Jeegania v. Dewi Prasad, AIR 1963 MP 15. 45 Paras Nath Thakur v. Mohini Dasi, AIR 1959 SC 1204. 46 Akhayyamma v. Papaiah, AIR 1956 Mys 36. 47 Lakshmamma v. M. Jayaram, AIR 1952 Mys 114; Dissending from Pirbhu Dayal v. Tula Ram, AIR 1922 All 401 (2); Ramlakhan Singh v. Gog Singh, AIR 1931 Pat 219. 48 Gopalkrishna Govind v. Tukaram Narayan, AIR 1956 Bom 566. 49 Rewachand Ladharam Ramchandani v. Naraindas B. Kanuga, AIR 1992 Bom 434. 50 Ethirjulu Naidu v. K.R.C. Chettiar, AIR 1975 Mad 333. 51 Ram Pragas v. Gajendra Prasad, AIR 1976 Pat 92. 52 Shivamma v. Abdul Rahman, AIR 1953 Hyd 25. 53 Thirumalai Vadivu Ammal v. Muthammal, 2000 AIHC 237 (para 17) (Mad). 54 Kwamin Bassain v. Bendentu, AIR 1937 PC 274. 55 Surajbhan Kailash Chand v. Harishanker, AIR 1976 Del 70; Lakshmamma v. M. Jayaram, AIR 1952 Mys 114; Kwamin Bassayin v. Bendentu, AIR 1937 PC 274; Jogesh Prasad Singh v. Ramchandar Prasad Singh, AIR 1950 Pat 370. 56 R.J. Gounder v. V.T. Elaiya, AIR 1972 Mad 336; Kwamin Bassayin v. Bendentnu, AIR 1937 PC 274; Manoharlal v. Rajeswari Devi, AIR 1977 All 36. 57 C HESHIRE AND F IBOOL ' S L AW OF C ONTRACT 10th Edn., p. 229; Foster v. Mackinnan, LR.4 CP 704; Thorough good's case (1582) 2 LR Gallie v. Lee, 1971 AC 1004 referred to Varudan v. Pattammal, (1993) 1 MLJ 259; Ramdeo v. Dulari Devi, AIR 1996 All 253 (paras 18 and 19); Palanivelu v. Sadasiva Padayachi, 2000 AIHC 2477 (para 15) (Mad). 58 Kharbuja Kuer v. Jangbahadur Rai, (1963) 1 SCR 457 : AIR 1963 SC 1203; Geresh Chander v. Bhuggobutty Debia, (1869) 13M IA 419; Kali Baksh v. Ram Gopal, (1913) 41 IA 23 29; Farid Unnisa v. Mukhtar Ahmed, (1925) 52 IA 342 : 1925 PC 204; Ramanamma v. Viranna, AIR 1931 PC 100; Satydeo Prasad v. Chander Joti Smt., AIR 1966 Pat 110; following Sabtri Thakurain v. F.A. Savi, AIR 1933 Pat 306; Thiratman v. Gunjeswari, AIR 1926 Pat 529; Hirday Narain v. Babu Ram, AIR 1941 Oudh 172; Bank of Khulna Ltd. v. Jyoti Prokash Mitra, AIR 1940 PC 147; Hanifa Bibi v. Kabul

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Khan, ILR (1963) Cut 554; Md. Shafi v. Kalsum Bi, AIR 1924 Lah 200; Hem Chandra v. Suradhani Debya, AIR 1940 PC 134; Kishore Raj Thakur Bije v. Basanti Kumar Das, AIR 1994 Ori 113 (para 7). 59 Kundanlal v. Musharrafi, AIR 1936 PC 207; Relying on Sunitabala Debi v. Dhara Sundari Debi, AIR 1919 PC 24. 60 Bibi Saleha v. Zakaria Khan, AIR 1950 Pat 247. 61 Mania v. Dy. Director, Consolidation, AIR 1971 All 151. 62 Naba Kumar Singh v. Hari Das Singh, AIR 1960 Mani 11.

40. FINDING OF COMPETENT AUTHORITY The burden to prove the contention of a party that a finding made by a competent authority is based on no legal evidence, lies on the party who asserts it. 63 63 Bhatnagars & Co. Ltd. v. Union of India, AIR 1957 SC 478, 486 (para 12).

41. SIGNATURE ON BLANK PAPER In case the defendant says that he put his signature on a blank paper but, if the evidence adduced by the plaintiff is found to be reliable and he is able to discharge his burden sufficiently, then the onus will shift to the defendant to show that he had not executed the document. 64 Where the defendant admitted only that he put his signature on a blank paper which he alleged had possibly been utilised for fabricating document, the onus of proving due execution must be thrown on the plaintiff. 65 64 In re : Kuttadan Valayudhan, AIR 2001 Ker 123 (para 16), overruling A. Pathu v. Katheesa Umma, (1990) 2 Ker LJ 115 and Ahamad v. Gangadharan, (1990) 1 Ker LT 456. 65 Ethirjulu Naidu v. K.R.C. Chettiar, AIR 1975 Mad 333.

42. FRAUD Fraud like any other charges of criminal offence whether made in Civil or Criminal Proceedings, must be established beyond reasonable doubt, as no fraud cannot be based on suspicion and conjecture. 66 Where the conveyance is brought about by fraud practised by vendor or where there is any express agreement between parties for payment of compensation for any defect or deficiency in property conveyed, or where there is any express or implied warranty, the burden is on plaintiff to make out the case of fraud on the part of the defendant. 67 The burden of proving that a purchase has been made by a person, as an agent for the plaintiff and that the former fraudulently made the purchase in his own name and concealed the fact from the plaintiff is entirely on the agent. 68 A debtor transferred his property. Creditors alleged and proved it to be a fraudulent transfer. The burden was now on him to show that the transfer was within any of the exceptions. 69 Where A alleges that a deed executed by him is vitiated by misrepresentation. The onus is upon A to establish plea of misrepresentation. 70 Where there was an innocent on insignificant misstatement of the value of an article sent by insured post and the article is lost, it is for the insurer to lead evidence that the market value of the article was higher as the burden is on the insurer to show than the policy is no longer subsisting or that there has been such a condition which relieves the insurer from liability. 71 Insurer alleging fraud and misrepresentation in procuring re-instatement or revival of policy, has to establish the same and has also to show that the misrepresentation was material and that the insured knew of the falsity of the statement. 72

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Where the defendant has taken a plea in written statement that agreement was neither executed by playing fraud nor by obtaining the signature of the vendor in his ignorance, the burden to prove this plea was the vendee/defendant. 73 Where cheques were dishonoured burden lay upon those issuing them to show that they were issued by mistake. 74 66 Narayanan v. Official Assignee, Rangoon, AIR 1941 PC 93. 67 Chacko Joseph v. Varghese Markose, AIR 1957 Ker 181. See also Krishna Prasad v. Gopal Prasad, AIR 2001 Pat 1 (paras 8, 9, 10 and 12). 68 Giribala v. Ushangiri Debi, AIR 1955 Ass 177. 69 Basavegowda v. S. Narayanaswamy, AIR 1986 Kant 225. 70 Kuppuswamy Chettiar v. Arumugam Chettiar, A.S.P.A., AIR 1967 SC 1395. 71 Union of India v. Sohanlal Sampatlal, AIR 1971 SC 432. 72 Lakshmi Insurance Company v. Bibi Padma Wati, AIR 1961 Punj 253. 73 Sunder Bai v. Nonit Ram, AIR 2003 MP 268, 269. 74 J&K R.T. Co. v. 3A Enterprises, AIR 1981 J&K 64. Those who issued pronotes must show that they did so undue influence. Ram Raja Ram v. Dhruba Charan Jena, AIR 1982 Ori 264.

43. CONSPIRACY The onus of proving conspiracy against the accused beyond reasonable doubt is on the prosecution.

75

75 Esher Singh v. State of A.P., (2004) 11 SCC 585, 606 (para 38) : AIR 2004 SC 3030 : 2004 CrLJ 5021.

44. GRANT The grant being clearly of a named village, it was an 'Estate', within the meaning of Section 3(2)(d) of Madras Act (1 of 1908). Burden to prove that the village was not an "Estate" is on the party claiming accordingly. 76 Burden lies on the party contending that land is not estate to prove that minor inams were granted subsequent to inam grant of named village. 77 Where the petitioners claimed re-grant of watan land on the ground that they were tenants in possession, burden was on them to establish that they were authorised holders of the said land. 78 76 Narra Seetharamayya Varma v. Kosaraju Venka Girayya, AIR 1983 SC 608. 77 Varado Bhavanarayana Rao v. State of A.P., (1964) 2 SCR 501 : (1964) 2 SCJ 523. 78 Vithal Govind Toke v. Drupadabai Chima Gayakwad, 1999 AIHC 1240 (paras 5-8) (Bom).

45. HINDU JOINT FAMILY Burden of proof that any particular property is joint family property is in the first instance upon the person who claims it as coparcenary property. It is only after possession of adequate nucleus is shown that the onus shifts on to person who claims property as self-acquired without any aid from the family estate. 79 A Hindu son governed by the Mistakashara Law is bound to pay the debts of his father even if they are not incurred for purpose of legal necessity or for benefit to the estate, provided the debts are not argavahasika or illegal, the burden of proving that there is a debt and that the debt is aryavahrika or illegal was before the son. 80

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In an alienation by a Karta, proof of a legal necessity is on the alienee. 81 Where in a Joint Hindu Family the widowed mother was the ' karta ' and her sons claimed execution of sale in their favour by their mother, the ' karta ' due to legal necessity, the burden of proving the legal necessity was on the alienees. 82 Where the plaintiff files a suit to invalidate a sale deed executed by her husband in favour of defendants on the ground that the husband has no legal necessity or authority to sell the ancestral property through sale deed in question. The plaintiff has to prove the same by leading documentary and oral evidence to establish her case, failing which her case is liable to fail. 83 Where the property was purchased with the aid of the joint family nucleus, such property would be treated as joint family property, and the burden to prove that such property was self-acquired property of the Karta, would lie on the party who claimed as such. 84 Where the father alienated some joint family property and the son assailed the alienation, it was for the son to prove the grounds of his assailment that the alienation was tainted with illegality and immorality of which the purchasers had previous knowledge. The father was not required to show that it was made for the legal necessity or for the family benefit. 85 Where manager of a Hindu family admitted that family possessed certain unaccounted cash, the burden of proving that division of that amount was in fact made, lies on him. 86 Onus is on him who asserts that an item held by a member is joint family property, to prove it. 87 Where one party pleaded that a certain disputed property of the joint family was purchased from the separate income of their father, onus was on them to prove. 88 There is no onus in law on a Hindu family to show that certain items of deposits standing in the names of different members of the family do not belong to it. 89 Whether properties acquired by widow out of savings from income from her husband's estate form an accretion to her widow's estate or constitute her stridhan must be determined according to the intention of the widow in dealing with those properties. Person alleging accretions must show that the property was acquired by the widow with that intention. 90 Where the defendant alleged that the suit property was purchased by the plaintiff from the joint family funds, burden was on him to prove his allegation. 91 If a set of persons carries on business as a firm, it is for them to show that the firm is a joint family firm. 92 In law there exists a presumption in regard to the continuance of a joint family. Even separate possession of a portion of the property by the co-sharer itself would not lead to a presumption of partition. Several other factors are required to be considered. 93 The burden of proof is on the person who sets up partition. There is no presumption where one person separates whether the rest continue joint or separate 1 but in case of partition by a registered deed, burden to prove that the partition was not true and valid, lies upon the party, challenging the partition. 2 Allegation by members that the joint family had separated must be proved by them. This can be proved by evidence of conduct subsequent to the material date. 3 Where the father and the sons, not a Joint Hindu Family, carried on business in partnership and property was purchased in the name of the eldest son, presumption would be that it was the property of the son in whose name the purchase was made. If the other partner claims that the purchase was for the benefit of all, burden would be on him to prove it 4 and not on the party in whose name the sale-deed was executed to prove that he had acquired the said property by his own money or that he had a separate income at the relevant time. 5 79 Mudigowda Gowdappa Sankh v. Ramchandra Revgowda Sankh, AIR 1969 SC 1076; Bhagwatilal v. Modulal, AIR 1952 Ajmer 52; Mangal Singh v. Harkesh, AIR 1958 All 42; Y. Venkataraju v. Y. Yedukondalu, AIR 1958 AP 147; Raja of Vizianagaram v. Vishweshwar, AIR 1955 Mad 219; Nanjedevaru v. H.V. Rama Rao, AIR 1959 Mys 173; Premchand v. Bittan, AIR 1954 All 143; Jamunabai v. Sharadabai, 1998 AIHC 4652 (paras 17-19) (AP); Budhia v. Raghu, AIR 1973 Ori 85 (property in the name of a female); D.S. Lakshmaiah v. L. Balasubramanyam, AIR 2003 SC 3800 (paras 8, 17, 18 and 19) : (2003) 10 SCC 310; Kulwant Singh v. Makhan Singh, AIR 2003 P&H 142, 146 (para 12); Koppula Koteshwara Rao v. Koppula Hamantha Rao, 2002 AIHC 4950, 4954 (para 12) (AP). 80 Sita Ram v. Radha Bai, AIR 1968 SC 534; Appasaheb Peerappa Chamdgade v. Devendra Peerappa Chamdgade, (2007) 1 SCC 521, 532 (para 17) : AIR 2007 SC 218.

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81 Pandurang Madhadeo Kavade v. Annaji Balwant Bokil, AIR 1971 SC 2228. 82 Subhas Chandra Bhowmik v. Kalyani Bhowmik, AIR 1998 Gau 96 (para 24). 83 Heirs Kantilal Purshottamdas Patel v. Dahiben Jagdish Rathod, AIR 2003 Guj 82, 86. 84 V.K. Thimmaiah v. V.K. Parvathi, AIR 2003 Kant 245, 249 (para 16). 85 Kolasani Sivakumari v. Kolasani Sambasiva Rao, 2000 AIHC 2512 (para 20) (AP). 86 Kashi Nathsa Yamosa Kabadi v. Nar Singsa Bhaskarsa Kabadi, AIR 1961 SC 1077. 87 V. Venkataswamy v. V. Radha Krishna Reddy, AIR 1963 AP 476. 88 Parkash Chand v. Hans Raj, AIR 1994 HP 144 (para 21). See also Mayandi Thevar v. Arumugha Thevar, 1999 AIHC 2866 (paras 12 and 13) (Mad). 89 Jesroi Jiwanram v. I.T. Commissioner, AIR 1954 Assam 49. 90 In re : Makbool Alam, AIR 1957 Pat 355. 91 Baban Girju Bangar v. Namdeo Girju Bangar, AIR 1999 Bom 46 (para 5). See also B. Pushpavalli v. V.R. Sivasankaran, 2001 AIHC 3836 (para 40) (Mad). 92 Mangat Ram v. Mangelal, AIR 1954 Punj 162. 93 Chinthamani Ammal v. Nandagopal Gounder, (2007) 4 SCC 163, 168 (para 17) : (2007) 3 JT 543. 1 A. Raghavamma v. A. Chenchamma, AIR 1964 SC 136; Ramadivi v. Gokul Prasad, AIR 1959 MP 251; Balu Ram v. Prem Ram, 2002 AIHC 1710, 1714 (para 19) (Raj); Bhagwati Prasad v. Rameshwari Kuer, AIR 1952 SC 72, 74 (para 7). See also Chinthamani Ammal v. Nandagopal Gounder, (2007) 4 SCC 163, 168 (para 17) : 2007 3 JT 543; Mahadu Appa Wanjole v. Laxman Veerappa Wanjole, 2008 AIHC 3416, 3422 (para 25) (Bom). 2 Suryadevara Pullayya v. Suryadevara Satyanarayana, 2001 AIHC 2807 (para 12) (AP). 3 Dattatraya Ramrao v. Shakuntalabai, 1956 Nag 95. 4 K.R. Santhyanarayana Rao v. K.R. Venkoba Rao, AIR 1998 Mad 276 (paras 14 and 16). The Court referred to Appalaswami v. Suryanarayanamurti, AIR 1947 PC 189; Srinivas Krishnarao Kango v. Narayan Devji Kango, AIR 1954 SC 379 (para 8); Mudigowda Gowdappa Sankh v. Ramchandra Revgowda Sankh, AIR 1969 SC 1076, at p. 1080 and Ranganayaki Ammal v. S.R. Srinivasan, (1978) 1 Mad LJ 56. 5 Birendra Kumar Singh v. Kalyani Bhanjo, 1999 AIHC 2874 (para 17) (Pat).

46. JURISDICTION Party seeking to oust jurisdiction of Civil Courts must establish its right to do so.

6

6 V.L.N.S. Temple v. I. Pattabhi Rami, AIR 1967 SC 781; Abdul Waheed Khan v. Bhawani, AIR 1966 SC 1718.

47. LANDLORD AND TENANT Where there is no dispute as to identity of the subject let, but the tenant denies that he had ever got possession of the subject, it is for the landlord to prove that he had discharged his obligation to put the tenant in possession before he can enforce the tenant's obligation to pay rent. 7 Where there was a dispute of ownership of a building erected allegedly by the tenant on the leased land and the tenant specifically denied that the said building was also leased, it was for the landlady to establish his tenancy to the said building. 8 In a suit for eviction against a sub-tenant, the tenant was neither contesting nor did he appear as a witness and the landlord also did not appear but produced witnesses on his behalf and relied on a document, a sulehnama , entered into between the tenant and the landlord which being not proved, could not be relied upon. Onus squarely lay on the landlord to prove the sub-tenancy. 9

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Where in an eviction suit, if the tenant wants to defeat the claim of the landlord on the ground that the bona fide need ceased to exist, it is for the tenant to plead and to establish the same. 10 In a case for eviction of tenant on the ground that the tenant has acquired possession of another premises, and when it is proved that the tenant has acquired the possession of another premises, the burden to prove that it is not sufficient for his use, lies on the tenant alone and not on the landlord to prove otherwise. 11 If it is alleged that tenancy is at will according to established custom, the onus is on him to prove the custom. 12 Where the person claiming to be a tenant produced a certified copy of the admission of his tenancy given by the landlord, the burden was on the landlord to disprove the admission. 13 Once sub-tenancy is proved, the burden would be on the tenant to prove that the parting with possession--both legal and physical by him in favour of the sub-tenant was without any valid consideration. 14 In a case of eviction on the ground of denial of landlord's title by the tenant, burden was on the landlord to adduce evidence substantiating his allegation that the tenant had denied his title and that such denial was not bona fide . Thereafter, the onus would shift on the tenant to show that he had not denied or if he had denied, the same was bona fide. 15 The onus to show that rent has been paid lies on the tenant and mere oral testimony is not sufficient to discharge the same. 16 Where the proviso to Section 11(3)of the Kerala Buildings (Lease and Rent Control) Act, 1965 envisages that no ejectment could be ordered if the tenant was earning his livelihood from the business conducted from the demised premises and that there was no other suitable place to which he could shift his business, onus lies on the tenant to prove the same. 17 Where the tenant did not dispute ownership to the property but claimed title to the same by way of gift by issuing an appropriate letter, burden was on the tenant to prove the same. 18 7 Jogesh Chandra v. Emdad Meah, AIR 1932 PC 28; Dist from Arun Chandra v. Bhagaban Chandra, AIR 1931 Cal 537(FB) . 8 Ganesan, R. v. Y. Rajanayagam, 1998 AIHC 518 (paras 11, 12, 15 and 16) (Mad). 9 Dibyeddu Bhowmik v. Joseph Chandra Nath, 1996 AIHC 557 (paras 4 and 5) (Gau), reversing the decision dt. 15-991 (Gau) and affirming the decision dt. 31-8-1987 (Gau). See also Nirmal Kanta v. Ashok Kumar, (2008) 7 SCC 722, 727 (para 16). See also Vaishakhi Ram v. Sanjeev Kumar Bhatiani, (2008) 14 SCC 356, 362 (para 21). 10 Chandran v. Sunil Kumar, 2005 AIHC 390, 392 (para 4) (Ker). 11 P. Ramamoorthy Rao v. S.P. Musthapha Rawther, 2002 AIHC 4880, 4884 (para 14) (Ker). 12 Eakubjan v. Bidhu Bhasan, 1952 Tri 11. 13 Damu Ganu Bendale v. Arvinda Dhondu Talekar, AIR 1994 SC 1303 (para 3). 14 Dudabhai v. Sulochanaben Gopaldas Kothari, AIR 1995 Guj 68 (paras 13, 14 and 24). 15 J.J. Lal (Pvt.) Ltd. v. M.R. Murali, (2002) 3 SCC 98 (para 11) : AIR 2002 SC 1061. 16 Ajai Agarwal v. Hargovind Prasad Singhal, 2004 AIHC 2293, 2295 (para 2) (Uttr), relying on Mohan Lala v. Laxman Das, 1991 HRR 510. 17 Kunhamma v. Akkali Purushothaman, (2007) 11 SCC 181, 186 (para 14) : (2007) 6 JT 147, relying on Francis v. Sreedevi Varassiar, (2003) 2 KLT 230(FB) . 18 Kamakshi Builders v. Amebedkar Educational Society, (2007) 12 SCC 27, 35 (para 13) : AIR 2007 SC 2191.

48. LEGITIMACY If a person claimed to be a preferential heir to the estate of the deceased, over another person, on the ground that the later was illegitimate, the former must adduce "sufficient general evidence" of illegitimacy so as to throw the onus on the latter of proving his legitimacy. 19

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When a man and a woman lived together as husband and wife for sufficiently long time and were treated as husband and wife by friends, relatives and neighbours there is always a presumption in favour of their marriage. If children are born to such a couple, there is a further presumption in favour of their legitimacy. 20 The standard of proof required for proving non-access between the husband and wife during the subsistence of their marriage must at least be of a degree between the proof beyond reasonable doubt and the test of preponderance of probability. 21 19 Lal Haribansha v. Nikunja Behari, ILR 1960 Cut 230. 20 Ningu v. Sadashiv, AIR 1987 Bom 27. 21 Kamti Devi v. Poshi Ram, AIR 2001 SC 2226 (paras 12 and 15) : (2001) 5 SCC 311.

49. LIMITATION In an application to set aside an ex parte decree, it is for the applicant to show that the application was within 30 days from his knowledge of the decree and hence was within limitation. 22 The plaintiff has to prove the acknowledgement of debt by the defendant to save

23

limitation.

Burden of proof is on person seeking to get the delay condoned to establish sufficient cause for the delay. 24 To defeat the plaintiff's claim to sue within three years from the date of knowledge of a fact, the defendant has to prove that plaintiff had knowledge of the fact more than three years back prior to filing of the suit. 25 The burden to bring the case under Sections 14 , Limitation Act is on plaintiff. 26 Where the plaintiffs were conscious of the delay in filing the suit, onus was on them to show that their suit was within time. 27 It is incumbent on the plaintiff to show in the first instance how the suit brought by them was within time. 28 Burden of proving that the plaintiff is within time is on plaintiff. In some cases evidence may reach a point at which onus to prove the suit out of time rests upon the defendant. Regard must always be had of the party in whose knowledge the relevant facts may appear. 29 22 Pannalal v. Murarilal, AIR 1967 SC 1384. 23 K. Ganapathy v. Vaidyalingan, AIR 1971 Mad 425. 24 U. Subbiah v. Narsimloo, AIR 1956 Hyd 161. 25 K.S. Nanji v. Jatashankar Dossa, AIR 1961 SC 1474. 26 Madhav Rao Narayanrao Patwardhan v. Ram Krishna Govind Bhanu, AIR 1958 SC 767; Dossa M. Krishnamurthy v. Y. Ramamurthi, AIR 1957 AP 654; Firm Bansidhar Baldeo Pershad v. Firm Alopi Pershad Sons Ltd., AIR 1963 Punj 556. 27 Triro v. Dev Raj, AIR 1993 J&K 14 (paras 8 and 9). 28 Ishak Ali v. Unnasbi, AIR 1958 MP 209. 29 Chouthmal v. Ramchandra, AIR 1955 Nag 126.

50. DESERTION--MATRIMONIAL In divorce proceedings the plaintiff must prove the offence of desertion, like any other matrimonial offence beyond all reasonable doubt. 30

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The burden of proof is on the person who alleges adultery. The mere fact that some male relation writes improper letters to a married woman does not necessarily prove that there was illicit relationship between the writer of the letters and the married woman who received them. 31 30 Bipin Chander Jaisinghbai Shah v. Prabhavathi, AIR 1957 SC 176. 31 Chandra Mohini Srivastava v. Avinash Prasad Srivasatva, AIR 1967 SC 581.

51. RESTITUTION OF CONJUGAL RIGHTS Where the petitioner husband filed proceedings for restitution of conjugal rights on the ground that the respondent wife had withdrawn from his society without reasonable excuse, the burden lies on him to prove those averments. 32 32 P. Rajeshkumar Bagmar v Swathi Rajeshkumar Bagmar, AIR 2008 Mad 36, 41-42 (para 10).

52. MAINTENANCE In maintenance proceedings the only consequence of the defendant's refusal to give blood for testing, will be that it will be taken into consideration alongwith other evidence in evaluating the evidence against him. 33 33 Subbayya Gounder v. Bhoopala, AIR 1959 Mad 396.

53. INTENTION, KNOWLEDGE AND MENS REA It is for the prosecution to prove the due publication or that the accused had knowledge. This cannot be inferred from the mere conduct of the accused. 34 In Parasa Raja Manikyala Rao v. State of A.P., 35 the Apex Court held that the prosecution must lead evidence of facts, circumstances and conduct of the accused persons with which their common intention can be safely gathered. 34 State v. Sheo Prasad, AIR 1956 All 583; Bhagwan Din v. State, AIR 1967 All 580; Ram Kumar v. State, AIR 1970 Raj 60; M.S. Jaggi v. Registrar, Orissa High Court, 1983 CrLJ 1527(Ori) ; Kimtilal v. State of Haryana, 1984 CrLJ 690(P&H) . 35 (2003) 12 SCC 306 (para 12), relying on Maqsoodan v. State of U.P., (1983) 1 SCC 218 : AIR 1983 SC 126 and Bhaba Nanda Sarma v. State of Assam, (1977) 4 SCC 396 : AIR 1977 SC 2252.

54. MALICIOUS PROSECUTION It is well-settled that in an act ion for malicious prosecution, the onus of establishing absence of reasonable and probable cause in launching the criminal prosecution against the plaintiff by the defendant lies in the first instance on the plaintiff. 36 36 Sachindra Nath v. Labangalata, AIR 1980 Cal 121. See also Philip v. Hindu Madhan Paripalana Sabha, AIR 2003 Ker 205, 207; Jagdish Rathore v. Nathuram, AIR 2007 MP 8, 11 (paras 17 and 18).

55. MORTGAGE Where a mortgage deed contains a recital that a mortgage money was given as a loan to the mortgagor and that he received the amount, the burden is on the mortgagor to prove that no consideration was in fact paid and merely because of some discrepancies in the evidence of mortgagee's witness the burden will not be deemed to be discharged. 37 Where in a suit for recovery of

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mortgage, the defendant admits the mortgage and claims that it is discharged, the burden to prove the discharge of it lies on the defendant. 38 In a suit for declaration of title based on a chora othi (an irredeemable mortgage amounting to sale), it is for the plaintiffs to prove when the suit mortgage was executed and also that the acknowledgement relied upon by them is in respect of that mortgage and that it has been made within the period of limitation. 39 37 R.S. Kothari v. Anar Dei by L.Rs. Smt., (1968) 1 SCWR 235. See also Kanagabaram Ammal v. Kakammal, AIR 2005 Mad 142, 145 (paras 12 to 16). 38 Shivalingamma v. T. Ramaiah, AIR 2004 Kant 307 (para 3) : 2004 AIR Kant HCR 1338 : 2004 (1) KCCR 556. 39 Esakki Palpu v. Chesian, AIR 1976 Mad 142.

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56. NEGLIGENCE When the plaintiff has established a prima facie case of negligence, the burden shifts to the owner of the vessel under way to prove that they were not at fault. 40 When a house leased to defendant was destroyed by fire, the onus of proving negligence is on plaintiff landlord. Doctrine of res ipsa loquitur does not apply. 41 However, the impact of the offending bus running into the other bus was so great that the other bus went and dashed against a tree resulting in injuries to 56 passengers and death of 4 passengers. The driver made no attempt to show that the cause of the accident could not have been avoided by the exercise of ordinary care and caution. The Supreme Court held that the Labour Court erred in not considering the maxim res ipsa loquitur and remitted the matter. 42 The burden of proving contributory negligence is on the defendant.

43

In an action based on negligence. The maxim res ipsa loquitur does not alter the rule that the onus to prove negligence rests on the claimant. The defendant may rebut the inference by proving the specific cause of accident 44 but where the vehicle suddenly went off the road, overturned and killed the victim, the burden of proving no negligence in such cases shifts to the other party/the driver. 45 Where the cause of accident was pleaded to be mechanical failure of the vehicle, burden was on its owner to prove that all necessary care and caution was taken to keep the vehicle in road-worthy condition. 46 In a claim case under Motor Vehicle Act, it was held that though the burden to prove negligence of driver in causing accident lies on the claimants, but non-production of log-book, an important document by the defendants would lead to an adverse inference regarding negligence of the driver. 47 In a death caused by electrocution by coming into contact of a live wire snapped from a pole, the burden to prove the plea that the wire was snapped due to heavy rains and there was no negligence on their part, was on the Electricity Board. 48 In a suit for redemption, the plaintiff should establish that the alleged mortgage was subsisting and was not extinguished. 49 Failure to perform emergency operation and death of patient on account of such failure amounts to negligence on the part of surgeon. If the surgeon advances a plea that the patient did not give his consent for the surgery or the course of treatment advised by him, the burden is on him to prove that the nonperformance of surgery or the non-administration of the treatment, was on account of the refusal of the patient to give consent thereto. 50 40 Jalim Ram Mallah v. P.S.N. Co. Ltd., 1969 SCD 1122. 41 Mohammad Habib v. Ram Narain Lal, AIR 1959 Pat 348. 42 North-East KRTC v. Devidas Manikrao Sadananda, (2006) 8 SCC 52, 55 (para 11) : AIR 2006 SC 3273. 43 Krishna Goods Carriers (P) Ltd. v. Union of India, AIR 1980 Del 92. 44 Indian T.G. Insurance Co. v. Madhukar, AIR 1967 MP 110; M.P.S.R.T. Corporation v. Sudhakar, AIR 1968 MP 47. 45 Sumati Debnath v. Sunil Kumar Sen, AIR 1994 Gau 59 (para 13). See also Thakur Singh v. State of Punjab, (2003) 9 SCC 208 (para 4). 46 Sivashanmugham v. Govt. of T.N., 2000 AIHC 496 (para 16) (Mad), relying on Minu B. Mehta v. Balkrishna Ramchandra Nayan, AIR 1977 SC 1248; Lakshmiammal v. State, AIR 1975 Mad 157 and Mewa Devi v. Ram Prakash Rajinder Pal, AIR 1990 HP 53. 47 Jagmit Kaur v. Union of India, 2003 AIHC 496, 499 (paras 7 to 10), relying on Gopal Krishna Ketkar v. Mohamed Hazi, AIR 1968 SC 1413(Raj) and Amarlal v. Devilal, (1988) 2 ACC 133.

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48 Hotukuri Bheemava v. APSEB, 1998 AIHC 1279 (para 10) (AP). 49 Basava Gowda v. Basava Gowda, 1952 Kant 1; Md. Akbar Khan v. Md. Motia, AIR 1948 PC 36. 50 T.T. Thomas v. Elisa, AIR 1987 Ker 52.

57. PLEA OF FRUSTRATION Onus of proving that the plea of frustration was a self induced one is on the party who alleges that that was the case. 51 51 M.D., Army Welfare Housing Organisation v. Sumangal Services (P) Ltd., (2004) 9 SCC 619, 664 (paras 118-121), relying on Joseph Constantine Steamship Line Ltd. v. Imperial Smelting Corpn. Ltd., 1942 AC 154 : (1941) 2 All ER 165(HL) ; Taylor v. Caldwell, (1863) 3 B&S 826 : (1961-73) All ER Rep 24 : 32 LJQB 164 : 8 LT 356 : 122 ER 309; Maritime National Fish Ltd. v. Ocean Trawlers Ltd., 1935 AC 524 : 1935 All ER Rep 86 : 104 LJ PC 88 : 153 LT 425 (PC).

58. NOTICE It is the established law that, where a sale or a decree is impeached on the ground of non-service or fraudulent suppression of notices, the initial onus is on the person who alleges service, that is to say, on the defendant to the action who tries to maintain the impugned sale. 52 The burden of proving the service of notice of award to the claimant under the Land Acquisition Act , either actually or constructively, is on the state.53 52 Kamakshya Narain Singh v. Karanapura Development Corporation, AIR 1950 Pat 161. 53 Special Deputy Collector, L.A. Unit v. Dasari Ramulu (FB), 2001 AIHC 387 (para 34) (AP).

59. PARTNERSHIP The question whether a person dealing with a firm has notice of the dissolution of the firm by the retirement of one of partners from it, is one of fact and the onus of proving that fact is on such partner. 54

54 Kala Ram v. Punjab National Bank (Ltd.), AIR 1935 PC 14.

60. SUCCESSION Whenever a person claims title to the estate of another by inheritance or succession, it is imperative for him to prove not only that he was related in some way or other with the last male holder of the estate but also that under the law of succession governing the parties he was the only heir entitled to succeed to the estate at the material time. In other words, he must prove not only that he was related in particular manner but also that no nearer heir was in existence. 55 The burden to prove an allegation that a particular person was not somebody's son or the wife or the second wife or that he/she was an imposter, or was/was not married in accordance with the local customs or the Hindu rites, was on the person who asserts. 56 Under Section 27, Sonthal, Parganas Settlement Regulation heavily laid down prohibition against transfer of raiyats land. The burden lies on the person setting up invalidity of transfer to show it was raiyati land. 57 55 Mahabati Kuer v. Raghunandan Prasad, AIR 1958 Pat 249; Puttaswamiah v. Ramachandran, AIR 1953 Mys 72.

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56 Hameed v. Kanhaiya, AIR 2004 All 405, 413 (para 23) : 2004 All LJ 3654 : 2004 (57) All LR 51 : 2005 (1) Civil Court C 146 : 2004 Rev Dec 559. 57 Ram Kisto Mandal v. Dhan Kisto Mandal, AIR 1969 SC 204; relying on Dhan Kisto v. Ram Kisto, AIR 1964 Pat 254.

61. TRUST AND TRUSTEE The plaintiffs brought the suit claiming to be trustees and praying for a declaration of their own title as trustees and for a declaration that the defendants were not trustees and for possession of the trust properties and other incidental reliefs. It was found as a fact that the meeting at which the plaintiff were elected trustees had not been held on due notice to all churches interested and was consequently not a valid meeting. It was held that in a suit of this description if the plaintiffs were to succeed they must do so on the strength of their own title. 58 Where the discoverable origins of property show it to be trust property the onus of establishing that it must have illegitimately come into the trustee's own right does not rest upon the beneficiaries. On the contrary, the onus is heavily upon the trustee to show by the clearest and most unimpeachable evidence the legitimacy of his personal acquisition. 59 Investment of trust fund with himself by the trustee is breach of trust. To make co-trustee liable, some kind of knowledge or connivance or gross negligence or the like contributory factor on the part of the co-trustee has got to be made out. Burden is on plaintiff who seeks to make the co-trustee liable, to make out clearly that the co-trustee had become trustee for the fund and incurred liability therefor of the trustee's breach. 60 Where about a temple trust, there was credible version of witnesses that public worshipped therein without restriction and it was installed and managed by public, burden lay on the person asserting that it was a private trust. 61 The party setting up the case of dedication of family property has to prove such a case. Mere description of property as belonging to a Devaswom will not be proof of dedication. 62 In a suit for rendition of accounts against trustee when after the death of trustee, the liability and duty devolved on his legal representatives, then burden of proof to show that monies were due from deceased is on the plaintiff. 63 In a suit by Mahant of a math to set aside order of Commissioner under Sections 64(1) , Orissa Hindu Religious Endowments Act , the onus is initially on him to show that order of Commissioner is wrong. 64 58 Moran Mar Basslious Catholicos v. T. Paulo Avira, AIR 1959 SC 31. 59 Narayan Bhagwantrao v. Gopal Vinayak, AIR 1960 SC 100 : 1960 SCJ 263 : (1960) 1 SCR 773; following Srinivas Chariar v. Evalappa Mudaliar, AIR 1922 PC 325. 60 Ranganathan Chettiar v. Peria Karuppan Chettiar, AIR 1957 SC 815. 61 Kanteisuni Thakurani, Bije Rampur Kaitha v. Bahadur Rout, AIR 1995 Ori 197 (paras 5 and 6). 62 Sankaran v. Narayanan, AIR 1954 TC 38. 63 Shriram Pershad v. Channo Devi, AIR 1969 Del 75. 64 Mahant Shri Srinivas Ramanuj Das v. Sorjanarayan, AIR 1967 SC 256.

62. UNAUTHORISED CONSTRUCTION In a criminal complaint for unauthorised construction burden to prove that the land belonged to the Development Authority and the accused made unauthorised construction thereon lies on the complainant authority. 65

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65 Special Development Area, Chitrakut v. Pooranlal, 1997 CrLJ 3484(MP) .

63. VALIDITY OF DRIVING LICENCE In a dispute as to the validity of a driving licence, it is for the insurer to prove that the driver of the offending vehicle had no valid driving licence at the time of the accident 66 and the insurer cannot escape its liability for payment of compensation by taking the plea of invalid driving licence without producing any evidence. 67 66 National Insurance Company Ltd., Sultanpur v. Shashi Bala Gupta, 2000 AIHC 2224 (para 20) (All). 67 New India Assurance Co. Ltd. v. Kiran Jain, 2000 AIHC 4610 (para 5) (MP).

64. VALIDITY OF BYE-LAW The person, who challenges the validity of a certain bye-law, the burden to prove the same is on him. 68

68 Om Prakash v. State of U.P., (2004) 3 SCC 402, 409 (para 12) : AIR 2004 SC 1896, following Afzal Ullah v. State of U.P., AIR 1964 SC 264 : (1964) 1 CrLJ 156.

65. IDENTITY OF VEHICLE INVOLVED IN ACCIDENT In an accidental claim petition, the burden of proof of the identity of the vehicle involved in the accident is on the claimant and on his failure to adduce positive evidence, the burden does not shift on the opponent to prove the negative. 69 69 Sh. Gulab Chand Dhot v. Sh. P.N. Aggarwal, AIR 1994 NOC 255(Del) .

66. WILL Onus of proof that the testator was major when he made the Will and was competent to execute is on person relying on Will 70 and that the signature on the document was not that of the testator. 71 Where there are suspicious circumstances, onus is on propounder to explain them to Court's satisfaction before the Court accepts the Will as genuine. Where caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same, even where there are no such pleas but circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the court. Court would naturally expect that all legitimate suspicion should be completely removed. When these are removed, the court would grant probate even if the Will might be unnatural and might cut off wholly or in part near relations. 72 Where it is proved that a Will has been executed with due solemnities by the testator of competent understanding and as apparently free agent, the burden of proving that it was executed under undue influence is on party who alleges it 73 and mere presence of motive and opportunity are not enough. 74 When by a Will the natural order of succession is disturbed by some one who propounds the Will, it is incumbent upon the beneficiary of the Will to remove every circumstance of suspicion attaching to the execution of the Will and disposal of property by it. 75 It was held by the Privy Council held that where the propounder of a Will was the principal beneficiary under it and had taken act ive part in its execution and registration. It would give rise to some suspicion and requires to be examined with great vigilance and scrutiny; the propounder in such cases will not be entitled to probate unless he clearly proves that the testator approved the Will and by adducing evidence removing any suspicion about the Will. 76 Where there were suspicious

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circumstances as to the execution of the Will and the beneficiary was a stranger to the family, the burden was heavy on him to prove its due execution. 77 The Privy Council observed: "The onus of establishing an oral Will is always a very heavy one, and in this connection their Lordships may refer to the ruling of this Board for the guidance of Courts to India in dealing with oral wills in Bahoo Beer Pertab Sahee v. Rajender Pertab Sahee 78 that they must be proved with the utmost precision, and with every circumstance of time and place". 79 When a Will which has not been registered during the lifetime of the testator, and has not seen the light of the day for about three years after the death of the testator, is put forward and a probate is asked for, something more is required than the bare and formal proof of execution and attestation, by calling in a few only of the persons connected with it. It has to be satisfactorily made out that it is the free and conscious act of the testator and for this purpose the best evidence of all the circumstances connected with the execution of the Will, has to be fully made out. 80 Where the Will executed by the testator in favour of the plaintiff was duly proved by examining attesting witnesses, the burden to prove that the testators signatures were not on the Will by verifying the same by handwriting expert or that the testator due to paralytic attack about the time of execution of Will was unable to move, and that fraud etc . was committed in execution of the Will, was held to be on the party challenging the execution of the Will by alleging the same. 81 In the case of Revocation of Will, burden of proof is on the objector, which may be discharged either by direct evidence or by inference. 82 The propounder of a will has to discharge the burden qua its genuineness as mere its registration is not enough. 83 Merely because a Will is registered its genuineness cannot be presumed. The registration of a Will does not change the onus of proof from its propounder to the challenger when doubt is raised. 84 70 Kalidindi Venkata Supparaju v. Chintalapati Subbaraju, AIR 1968 SC 947. 71 Augustions v. Joseph, AIR 2005 Ker 204, 206 (para 10). 72 Shashi Kumar Banerjee v. Subodh Kumar Banerjee, AIR 1964 SC 529; Gurdial Kaur v. Kartar Kaur, (1998) 4 SCC 384; Daulat Ram v. Sodha, AIR 2005 SC 233 (para 10) : (2005) 1 SCC 40; Bharpur Singh v. Shamsher Singh, (2009) 3 SCC 687 : AIR 2009 SC 1766. 73 Naresh Charan Das Gupta v. Paresh Charan Das Gupta, AIR 1955 SC 363. 74 Meenakshiammal v. Chandrasekaran, (2005) 1 SCC 280, 287 (para 20) : AIR 2005 SC 52, relying on Madhukar D. Shende v. Tarabai Aba Shedage, (2002) 2 SCC 85 : AIR 2002 SC 637 and approving Chinmoyee Saha v. Debendra Lal Saha, AIR 1985 Cal 349; Ryali Kameswara Rao v. Bendapudi Suryaprakasarao, AIR 1962 AP 178 and R. v. Hodge, (1838) 2 Lewis CC 227. 75 Chukka Reddy v. Lachma Reddy, (1969) 2 SCWR 605; Gorantla Thataiah v. Thotakura Venkata Subbaiah, AIR 1968 SC 1332. 76 Vellaswamy Servai v. Shivaraman Servai, AIR 1930 PC 24. See also Patai Dhorain v. Digam Dhora, AIR 1960 Pat 318; Chandra Vasa v. Dulesari Devi, AIR 2004 All 350, 355 (para 26). On this point the High Court has discussed numerous judgments of the Apex Court : 2004 All LJ 3007 : 2004 (4) All WC 2930 : 2004 Rev Dec 179. 77 Benga Behera v. Braja Kishore Nanda, (2007) 9 SCC 728, 740 (para 43) : AIR 2007 SC 1975. 78 12 MIA 1 at p.28. 79 Venkat Rao v. Namdeo, AIR 1931 PC 285. 80 Nilamber Bewa v. Fagu Prusty, AIR 1951 Ori 236. 81 Mahabir Sah @ Mahabir Prasad Sah v. Tapan Saha, 2005 AIHC 1844, 1848, 1849 (para 22) Jhar. 82 Satya Charan v. Asutosh, AIR 1953 Cal 657; Devi Charan v. Durga Porshad, AIR 1967 Del 128. 83 Vattakam Purath Ananda Bhai v. Kanaka Bhai, AIR 1995 Ker 208 (para 4).

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84 Namdeo Mali v. Jayram Barde, AIR 2009 (NOC) 274(Bom) : 2008 (6) AIR Bom R 89.

67. SPECIFIC RELIEF ACT Onus to prove exception carved out in Sections 19(b) of the Specific Relief Act, is on the subsequent purchaser.85 The questions of good faith and that of a bona fide purchaser are of facts and the onus to prove the same is on the one who sets up such a plea. 86 In a suit for injunction simpliciter based on possession under the Specific Relief Act , the plaintiff had produced the sale deed in support of his title and produced documentary evidence to show that the property was in possession of the seller of the property and thereafter in his possession. The burden was then on the defendant to show that he had better or prior title. 87 In a suit for mandatory injunction where the specific case of the plaintiff was based on the suit agreement, the burden would be on the plaintiff to prove his case. He cannot plead that as the defendant did not enter the witness box his evidence should be accepted especially when the defendant was not called upon to prove any aspect. The Court held that no adverse inference could be drawn against the defendant merely because of his not entering the witness box. 88 In a suit for specific performance of agreement to sell, defendant, the owner of the property admitted signature on the agreement but pleaded that on being pressurised he had signed on blank papers. It was held that the burden to prove the same was on him. 89 Where the plaintiff alleged that the defendant had executed an agreement of sale in his favour which the latter denied, the burden was on the plaintiff to prove the same. 90 Onus to plead and prove that time was the essence of the contract, is on the person alleging it.

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85 Murlidhar Bapuji Valve v. Yallappa Lalu Changule, AIR 1994 Bom 358 (para 20). 86 Devinder Singh v. Mansha Singh, AIR 2003 P&H 166, 170 (para 12), following Tekchand v. Deepchand, AIR 2001 SC 1392 : (2001) 3 SCC 290 and R.K. Mohd. Ubaidullah v. Hajee C. Abdul Wahab, AIR 2001 SC 1658 (para 15). 87 Govind Anant Goltekar v. Dasharath Deoba Goltekar, AIR 2006 Bom 174, 176 (para 13). 88 Umesh Bondre v. Wilfred Fernandes, AIR 2007 Bom 29, 32-33 (para 8). 89 Jayalakshmi Ammal v. Chinnasamy Gounder, AIR 2007 (DOC) 251(Mad) (DB) : 2007 (1) CTC 449. 90 Thiruvengadam Pillai v. Navaneethammal, (2008) 4 SCC 530, 540 (para 19) : AIR 2008 SC 1541. See also Malliga v. Santhamani, AIR 2009 (NOC) 1268(Mad) . 91 M.P. Housing Board v. Progressive Writers and Publishers, (2009) 5 SCC 678, 690 (para 38).

68. COMPANIES ACT It is for prosecution to prove that accused were in fact, holding of Managing Director and President of Company at the relevant time as alleged. 92 Sections 47 Companies Act makes it expressly clear that hundi shall be deemed to have been made by the Company. The onus is upon the company to show that the hundi did not bind the company at all. 93 Oppression or mismanagement.-- The burden to prove oppression to the minority shareholders or mismanagement in a company is upon the petitioner. The Court, however, will have to consider the entire materials on record and may not insist the petitioner to prove the act s of oppression. An action in contravention of law may not per se be oppressive to the minority shareholders. 94 92 State of Gujarat v. New Swadeshi Mills, Ahmadabad, 1983 CrLJ 1268(Guj) . 93 Sri Kishan v. Mondal Bros & Co., AIR 1967 Cal 75.

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94 Sangramsinh P. Gaekwad v. Shantadevi P. Gaekward, (2005) 11 SCC 314, 378 (para 205), relying on Mohanlal Ganpatram v. Shri Sayaji Jubilee Cotton and Jute Mills Co. Ltd., AIR 1965 Guj 96, 103 (para 49) : (1964) 34 Comp Cas 777, per B HAGWATI , J. (as His Lordship then was).

69. SHAM TRANSACTION It was permissible to take the plea that a certain transaction was a sham or fictitious transaction not intended to be act ed upon rather intended to overcome or avoid the effect of a certain legislation but the onus would lie on the shoulders of the party who takes such a plea. To discharge the onus, direct evidence may or may not be available and it would be permissible to draw an inference from tell tale circumstances. 95 95 Gurdial Singh v. Ram Kumar Aneja, (2002) 2 SCC 445 (para 11) : AIR 2002 SC 1003.

70. GOVERNMENT SERVANT A person, retiring from a non-government-aided institution, claimed to be a government servant contending that earlier he was working in Education Department of the State Government from where he was sent on deputation to non-government-aided institution. The Supreme Court observed that the best evidence to establish the same was his appointment letter or the letter by which he was sent on deputation which he failed to produce. Mere pension slip or receiving the pension itself was not sufficient. 96 96 Indrasen Jain v. Rameshwardas, (2005) 9 SCC 225, 230 (para 7) : AIR 2005 SC 578.

71. WORKMAN While there is no doubt in law that the burden of proof, that a claimant was in the employment of a management, primarily lies on the workman who claims to be a workman, the degree of such proof so required, would vary from case to case. In the instant case, the employee working as a driver for more than 240 days in a year in a bank had adduced some evidence of having received wages as driver from the bank and his signatures were taken on bank register which was not rebutted by the bank. It was held that the employee had established that he was a workman of the bank within the meaning of the Industrial Disputes Act , 1947.97 In a case of termination of service of a workman on daily wages, the burden to prove that he had worked for 240 days in a year, is on the claimant and this burden can only be discharged by the workman by stepping in the witness box as there will be no letter of appointment or termination of services of daily waged earner and also there will be no receipt or proof of payment. 1 97 Bank of Baroda v. Ghemarbhai Harjibhai Rabari, (2005) 10 SCC 792, 795 (paras 8-10) : AIR 2005 SC 2799. 1 R.M. Yellatti v. Assistant Executive Engineer, AIR 2006 SC 355, 361 (para 17) : (2006) 1 SCC 106; followed in Sriram Industrial Enterprises Ltd. v. Mahak Singh, (2007) 4 SCC 94, 105 (para 34). The Court relied on Rajasthan State Ganganagar S. Mills Ltd. v. State of Rajasthan, (2004) 8 SCC 161 and M.P. Electricity Board v. Hariram, (2004) 8 SCC 246.

72. CLASSIFICATION OF GOODS The burden to prove that any item comes under a certain head is on the person claiming exemption of that item from tariff on that count. 2 2 Anjaleem Enterprises (P.) Ltd. v. Commissioner of Central Excise, Ahemdabad, (2006) 2 SCC 336, 346 (para 15) : (2006) 1 JT 353.

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73. REBUTTAL OF PRESUMPTION The onus of proof would be on a person who leads evidence to rebut the presumption.

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3 Prem Singh v. Birbal, (2006) 5 SCC 353, 360-61 (para 27) : AIR 2006 SC 3608. See also Govind Anant Goltekar v. Dasharath Deoba Goltekar, AIR 2006 Bom 174, 176-78 (para 12).

74. TARIFF ITEM The onus or burden to show that the product falls within a particular tariff item is always on the Revenue. 4 4 Quinn India Ltd. v. Commissioner of Central Excise, Hyderabad, (2006) 9 SCC 559, 563-64 (para 8) : (2006) 5 JT 614, relying on CCE v. Sharma Chemical Works, (2003) 5 SCC 60 and CCE v. Vicco Laboratories, (2005) 4 SCC 17.

75. INSURANCE Burden to prove the applicability of exclusionary clauses was on the insurer. 5 While answering the questions in the application form for obtaining an insurance policy, the insured denied that he had undergone any operation. He obtained the policy through his brother who was an authorised agent of the Insurance Company concerned. It was held that in the case of this nature, it was not necessary for the insurer to establish that the suppression was fraudulently made by the policy holder or that he must have been aware at the time of making the statement that the same was false or that the fact was suppressed which was material to disclose, rather it was for the proposer /insured to show that his intention was bona fide. 6 Where the insured pleaded the valid entrustment of the vehicle to a duly licensed driver, the burden was on him to prove the said fact. 7 5 Peacock Plywood P. Ltd. v. Oriental Insurance Company Ltd., (2006) 12 SCC 673, 696 (para 73) : (2007) 1 JT 191. 6 P.C. Chacko v. Chairman, Life Insurance Corporation of India, (2008) 1 SCC 321, 327 (para 17) : AIR 2008 SC 424. 7 Yashodhara B. Shetty v. United India Insurance Co. Ltd., 2008 AIHC 528, 531-32 (para 15) (Kant).

76. BONA FIDE PASSENGER In the case of the railway accident where a passenger had died, the claimants would find it extremely difficult, if not impossible, to prove certain facts, which are beyond their reach and control. Since the claimants may not know whether the deceased had purchased a valid ticket or not, they would not be in a position to prove the fact that the deceased was a bona fide passenger. Since the Railway appoints ticket collector on its behalf to check the valid tickets of the passengers, the Railway has a mechanism for finding out and discovering whether the deceased was a bona fide passenger or not. Hence, the burden of proof lies on the Railway Administration to lead evidence to prove that the deceased was not a bona fide passenger. 8 8 Union of India v. Hari Narayan Gupta, AIR 2007 Raj 38, 41 (para 12), relying on Bhagwani Giri v. U.O.I., 2004 (4) WLC 573 : AIR 2005 Raj 54 and Raj Kumari v. U.O.I., (1993) (2) ACJ 846 (MP).

77. SEAWORTHINESS OF SEA VESSEL It was for the claimant to plead and establish that the vessel in question was seaworthy. 9 Sea Lark Fisheries v. United India Insurance Company, (2008) 4 SCC 131, 135 (para 13).

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78. INTERPRETATION OF TAXING ENTRY Where the Department of Revenue accepted the classification of the goods in question by the assessee under a particular entry for a long period of over twenty years and thereafter the Department sought to put a different interpretation to that entry and to reclassify that goods, it was held that onus was on the Department to justify the change particularly when there was no change in the statutory provision. 10 10 Mauri Yeast India Private Limited v. State of U.P., (2008) 5 SCC 680, 695 (para 53) : (2008) 6 Scale 241.

79. LETTER WRITTEN BY COUNSEL The wife's counsel wrote a letter to the husband making imputations that he was living an adulterous life. The wife took the plea that part of the letter was written without her instructions. It was held that the burden was on the wife to prove the same. 11 11 Aldino Santos Branganza v. Marle Dos Santos Branganza, AIR 2008 (NOC) 2090(Bom) .

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CHAPTER VII THE BURDEN OF PROOF S. 103. Burden of proof as to particular fact. The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. ILLUSTRATION

A prosecutes B for theft, and wishes the Court to believe that B admitted the theft to C. A must prove the admission. B wishes the Court to believe that, at the time in question, he was elsewhere. He must prove it.

COMMENTS Where in an appeal before the Rent Control Tribunal the tenant raised a new plea in his application for additional evidence that on the date of grant of permission for tenancy for a limited period on the basis of the alleged joint application of the landlord and the tenant, he was out of the country and the said permission was taken by the landlord by playing fraud on the Court, it was held that the burden was on the tenant to prove his absence from the Court on the day of grant of permission. 12 Where the defendant asserted that the suit property was a 'public trust' which the plaintiff did not admit, the burden of proving his contention was on the defendant. 13 Where in a suit for declaration of title, the defendant denied the claim by claiming that the suit land formed the part of General Land Register and was classified as A2, the burden of proving this particular fact was on him. 14 Where a tenant alleged that the rent was paid but no receipt was issued by the landlord, in absence of any explanation for not sending the rent by postal money-order, he could not be deemed to have discharged the burden which was cast upon him. 15 Burden of proving material waste or damage to the building due to unauthorised construction by the tenant, was on the landlord. 16 Where the guarantor of a bank loan pleaded that the hypothecated goods were insured and were lost due to the negligence of the creditor bank, the burden was on the guarantor to prove the alleged negligence. 17 Where inspite of admitted oral partition, the defendant claimed that the disputed strip of land was left in common, burden was on him to prove his claim. 18 Where in a proceeding for maintenance the wife produced ' Nikahnama ' as a proof of marriage, signature over which the husband denied, it was for husband to prove that applicant-wife was not his legally wedded wife. 19 Where in a matrimonial case the husband raises the plea of earlier subsisting marriage, the burden was on the husband to prove his plea satisfactorily by tendering evidence. 20 Where the appellants, one of the parties to a compromise, assailed its genuineness on the ground that it did not bear their signature and raised a plea before the Supreme Court that the revising authority i.e. the Deputy Director of Consolidation on his own initiative ought to have given them an opportunity to get their disputed signatures examined by the handwriting expert, it was held that it was for them to have requested the authority for that which was not done by them and

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it being a finding of fact and having thus become final, could not be assailed in appeal before the Apex Court. 21 After the prosecutor succeeds in discharging its burden of proving the commission of crime by the accused beyond any reasonable doubt, then it becomes incumbent on the accused taking the plea of alibi to prove it with certainty and this burden of his is undoubtedly heavy. 22 Where a person of the status of freedom fighter makes a statement in the application that he was imprisoned for six months, the Court may start with presumption that such statements are true unless they are disproved by any material on record or other evidence. 23 Where the Inspector of Police who was investigating the case admitted to have received the copy of the letter addressed by the accused, it was for the investigating officer to show when it had been dispatched. 24 The plaintiff claimed partition of the property on the ground that the said property belonged to his deceased father. The defendant brother pleaded that the same was purchased by him in the name of their father benami , the burden to prove which was on the defendant in which he failed. The court decreed the suit for partition. 25 12 Mohan Singh v. Amar Singh, (1998) 6 SCC 686. 13 Champalal v. Thakurji Shri Gopalji, AIR 1998 Raj 220 (paras 12, 13 and 15). 14 Secretary to Government of India, Ministry of Defence, New Delhi v. Indira Devi, 1999 AIHC 4682 (para 10) (AP). See also Yamuna Nagar Improvement Trust v. Khariati Lal, (2005) 10 SCC 30, 37 (para 26) : AIR 2005 SC 2245; Tulsi v. Chandrika Prasad, (2006) 8 SCC 322, 329 (para 25) : AIR 2006 SC 3359. 15 Raghubir Prasad v. Rajendra Kumar Gurudev, AIR 1993 All 326 (paras 4 and 14), relying on Madan Mohan v. Krishna Kumar Sood, 1993 (1) JT 162 : 1993 AIR SCW 743. 16 Ratanlal Bansilal v. Kishorilal Goenka (FB), AIR 1993 Cal 144 (para 157). 17 Gopal Chandra Bagaria v. State Bank of India, AIR 1994 Ori 329 (paras 5 and 6). 18 S. Perumal Gounder v. Karuppa Gounder, 1998 AIHC 1040 (para 13) (Mad). 19 Zulekha Khatoon v. State, 2000 CrLJ 3416 (para 4) (Pat). 20 Savitaben Somabhai Bhatiya v. State of Gujarat, (2005) 3 SCC 636, 643 (para 19) : AIR 2005 SC 1809 : 2005 CrLJ 2141, relying on Yimala (K.) v. Yeeraswamy (K.), (1991) 2 SCC 375. 21 Rahimal v. Dy. Director of Consolidation, (2002) 10 SCC 94 (para 3). 22 Jayantibhai Bhenkarbhai v. State of Gujarat, (2002) 8 SCC 165 (para 19) : AIR 2002 SC 3569. 23 B.K. Nagaraj v. Union of India, AIR 2004 Kant 90, 91 (para 4) : 2003 AIR Kant HCR 3012 : 2003 (6) Kant LJ 469ILR 2003 Kant 4236 : 2004 (1) KCCR 31. 24 Karuppusamy v. State of T.N., (2006) 11 SCC 459, 463 (para 20) : (2006) 4 Crimes 313 : (2006) 9 Scale 716. 25 Nathoo Ram v. Rameshwari Devi, AIR 2006 Utt 44, 45-46 (para 9). See also Yaniyankandy Bhaskaran v. Mooliyil Padinhjarekandy Sheela, (2008) 10 SCC 491, 496 (para 20).

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Ratanlal & Dhirajlal: Law of Evidence, Updated 23rd Edition/THE INDIAN EVIDENCE ACT (ACT 1 OF 1872)/PART III PRODUCTION AND EFFECT OF EVIDENCE/CHAPTER VII THE BURDEN OF PROOF/S. 104.

CHAPTER VII THE BURDEN OF PROOF S. 104. Burden of proving fact to be proved to make evidence admissible. The burden of proving any fact necessary to be proved in order to enable any person to give evidence of any other fact is on the person who wishes to give such evidence. ILLUSTRATIONS 8a)   A wishes to prove a dying declaration by B . A must prove B 's death. 9b)   A wishes to prove, by secondary evidence, the contents of a lost document. A must prove that the document has been lost. Where the detenus sent unsigned telegrams to various authorities that they were illegally arrested at 11.30 a.m. but they were shown to be arrested 3 p.m. the same day, it was for the detenus to prove that they sent the telegrams prior to the detention order as the said telegrams could not be taken into consideration unless confirmed by signed applications, representations or affidavits. 26 Where in an accidental claim case, the vehicle involved was transferred prior to the accident, the fact that the transferee failed to apply for consequential transfer of the insurance certificate was to be pleaded and proved by the insurer when the claimant is the third party. 27 Where there was abundant evidence to show that the deceased/wife was subjected to cruelty and harassment by the accused persons demanding dowry before her death, burden to show that it was not a dowry death but suicide shifted on the accused. 28 Where in a partition suit the plaintiff claimed by virtue of being the natural son of the defended who admitted his sonship but asserted that he was his foster son, burden to prove the nature of relationship was on the defendant. 29 In a case the plaintiff took no steps to produce the original sale deed. He took no steps to prove its loss either. Besides he failed to take steps to establish the source from which the certified copy filed was obtained. In short he took no steps to lay the foundation to adduce the secondary evidence which thus became inadmissible. 30 26 District Magistrate v. G. Jothisankar, 1993 CrLJ 3677 (paras 9 and 10) (SC) : AIR 1993 SC 2633. 27 Oriental Insurance Co. Ltd. v. Joshy, 1996 AIHC 1150 (paras 7-9) (Ker). 28 G.M. Natarajan v. State, 1995 CrLJ 2728 (paras 10 and 11) (Mad). 29 Muralidhar Sutar v. Balamani Sutar, 1999 AIHC 37 (para 7) (Ori). 30 Dayamathi Bai v. K.M. Shaffi, (2004) 7 SCC 107, 110-111 (paras 10 and 14) : AIR 2004 SC 4082.

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Ratanlal & Dhirajlal: Law of Evidence, Updated 23rd Edition/THE INDIAN EVIDENCE ACT (ACT 1 OF 1872)/PART III PRODUCTION AND EFFECT OF EVIDENCE/CHAPTER VII THE BURDEN OF PROOF/S. 105.

CHAPTER VII THE BURDEN OF PROOF S. 105. Burden of proving that case of accused comes within exceptions. When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code (XLV of 1860), or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances. ILLUSTRATIONS 9a)   A , accused of murder, alleges that, by reason of unsoundness of mind, he did not know the nature of the act. The burden of proof is on A . 10b)   A , accused of murder, alleges that, by grave and sudden provocation, he was deprived of the power of self-control. The burden of proof is on A. 4c)   Section 325 of the provides that whoever, except in the case provided for by Section 335, voluntarily causes grievous hurt, shall be subject to certain punishments. A is charged with voluntarily causing grievous hurt under Section 325. The burden of proving the circumstances bringing the case under Section 335 lies on A . 1. PRINCIPLE

In criminal cases the burden of proof, using the phrase in its strictest sense, is always upon the prosecution and never shifts, whatever the evidence may be, during the progress of the case. When sufficient proof of the commission of a crime has been adduced and the accused has been connected therewith as the guilty party, then the burden of proof, in another and quite different sense, namely in the sense of introducing evidence in rebuttal of the case for the prosecution is laid upon him. The onus of establishing an exception shifts to the accused when the pleads an exception. This onus can be discharged either by affirmatively establishing the plea taken by an accused person or by eliciting such circumstances which would create a doubt in the mind of the court that the reasonable possibility of the accused act ing within the protection of the exception pleaded is not eliminated. 31 The test is not whether the accused has proved beyond all reasonable doubt that he comes within any exception to the Indian Penal Code , but whether in setting up his defence he has established a reasonable doubt in the case for the prosecution and has thereby earned his right to an acquittal. 32 But this does not mean that the accused must lead evidence. If it is apparent from the evidence on the record, whether produced by the prosecution or defence, that a general exception would apply, then the presumption is removed and it is open to the court to consider whether the evidence proves to the satisfaction of the Court that the accused comes within the exception. 33 Thus, if a man takes the life of

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another, he should prove circumstances, if any, justifying his doing so. If the act is done in exercise of the right of private defence, it lies upon him to show that he did not exceed that right. The onus which rests on an accused person under S. 105, to establish his plea of private defence is not as onerous as the unshifting burden which lies on the prosecution to establish every ingredient of the offence with which the accused is charged beyond reasonable doubt. 34 In any event, the discarding of the prosecution story as respects the manner of the causing of the injuries on the victim means that the whole story as to the manner of occurrence becomes very doubtful. In such a situation the benefit of doubt must go to the accused. 35 An accused pleading the right of self defence need not prove it beyond reasonable doubt. It is enough; if he establishes facts which on the test of preponderance of probabilities, make his defence acceptable. The plea can be established either by letting in defence evidence or from the prosecution evidence itself, but cannot be based on speculation or mere surmises. The accused need not take the plea explicitly. He can succeed in his plea if he is able to bring out from the evidence of the prosecution witnesses or other evidence that the apparent criminal act was committed by him in exercise of his right of private defence. He should make out circumstances that would have reasonably caused an apprehension in his mind that he would suffer death or grievous hurt if he does not exercise his right of private defence. 36 The evidence, though insufficient to establish the exception, may be sufficient to negative one or more of the ingredients of the offence. 37 Where the plea of insanity is invoked by an accused it is for him to establish that fact.

38

Under Section 105 of the Evidence Act, the burden of proving the existence of circumstances bringing the case within the exception lies on the accused and the court shall presume the absence of such circumstances. Under Section 105 of the Evidence Act, read with the definition of 'shall presume' in Section 4 thereof, the court shall regard the absence of such circumstances as proved unless, after considering the matters before it, it believes that the said circumstances existed or their existence was so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that they did exist. The doctrine of burden of proof in the context of the plea of insanity may be stated in the following propositions: (1) The prosecution must prove beyond reasonable doubt that the accused had committed the offence with the requisite mens rea and the burden of proving that always rests on the prosecution from the beginning to the end of the trial. (2) There is a rebuttable presumption that the accused was not insane, when he committed the crime, in the sense laid down by S. 84 of the Penal Code ; the accused may rebut it by placing before the court all the relevant evidence--oral, documentary or circumstantial, but the burden of proof upon him is no higher than that rests upon a party to civil proceedings. (3) Even if the accused was not able to establish conclusively that he was insane at the time he committed the offence, the evidence placed before the court by the accused or by the prosecution may raise a reasonable doubt in the mind of the court as regards one or more of the ingredients of the offence, including mens rea of the accused and in that case, the Court would be entitled to acquit the accused on the ground that the general burden of proof resting on the prosecution was not discharged. 39 It has to be shown that (a) accused was insane, at the time when he did the act and that as a result of unsoundness of mind he was incapable of knowing the nature of the act or that he was doing what was really wrong or contrary to law. 40 There is no conflict between the general burden, which is always on the prosecution and which never shifts and the special burden on the accused to make out his defence of insanity. 41 An accused person who at his trial had not pleaded the right of private defence, but had raised other pleas inconsistent with such a defence, cannot in appeal set up a case, founded upon the evidence taken at his trial, that he act ed in the exercise of the right of private defence; neither is the Court competent to raise such a plea on behalf of the appellant. 42

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31 Babu Lal v. State, AIR 1960 All 223, See also State v. Kolis Hira, AIR 1961 Guj 8; Laksmanan v. Lakshmanan, AIR 1964 Mad 418; Nishikanta v. Calcutta Corporation, AIR 1953 Cal 401; Raghbir Singh v. State of Haryana, AIR 2009 SC 1223, 1225-26 (para 7); Arun v. State of Maharashtra, 2009 CrLJ 2065, 2068-69 (para 6). 32 King-Emperor v. U. Damapala, (1936) 14 Ran 666(FB) ; Emperor v. Dhondu, (1927) 29 Bom LR 713; Emperor v. Yusuf Mian, ILR (1938) All 681; Ghulam Sarwar v. Crown, (1937) 18 Lah 726; Emperor v. Parbhoo, ILR (1941) All 843(FB) ; approved in Rishi Kesh Singh v. State, AIR 1970 All 51(FB) . See also Padi Patra v. State, AIR 1966 Orissa 199. 33 Emperor v. Musammat Anandi, (1923) 45 All 329; Bala Prasad v. State of M.P., AIR 1961 MP 241; C.B. Sohanki v. Srikanta Parashar, 1997 CrLJ 3050 (para 13) (Kant). 34 Mohd. Ramzani v. State of Delhi, AIR 1980 SC 1341; Yagendra Morarji v. State of Gujarat, AIR 1980 SC 660; Partap v. State of U.P., AIR 1976 SC 966 : 1976 CrLJ 697; Rafiq v. State of Maharashtra, AIR 1979 SC 1179; Omkar Nath Singh v. State of U.P., AIR 1974 SC 1550; State of M.P. v. Ahmadulla, AIR 1961 SC 998. 35 Mohan Singh v. State of Punjab, AIR 1975 SC 2161. 36 Krishnan v. State of T.N., (2006) 11 SCC 304, 311-12 (para 15) : AIR 2006 SC 3037. See also Raghbir Singh v. State of Haryana, AIR 2009 SC 1223, 1225-26 (para 7); Arun v. State of Maharashtra, 2009 CrLJ 2065, 2068-69 (para 6). 37 State of U.P. v. Ram Swarup, AIR 1974 SC 1570. 38 Bhikari v. State of U.P., AIR 1966 SC 1; Kannakunnummal v. State, AIR 1967 Ker 92; Kuttappan v. State of Kerala, 1986 CrLJ 271; Insanity proved, Raghu Pradhan v. State of Orissa, 1993 CrLJ 1159(Ori) . 39 Dahya Bhai Chhagan Bhai Thakker v. State of Gujarat, AIR 1964 SC 1563; Oyami Ayatu v. State of M.P., AIR 1974 SC 216; Jailal v. Delhi Administration, AIR 1969 SC 15; Harbhajan Singh v. State of Punjab, AIR 1966 SC 97; Bhikari v. State, AIR 1966 SC 1. 40 In re : Kandasami Mudali , AIR 1960 Mad 316; Nivrutty v. State of Maharashtra, 1985 CrLJ 449 Bom; Umuru Santa v. State, (1979) 2 Cut 261. 41 N.C. Nath v. State, AIR 1971 Tripura 16; Kashiram v. State, AIR 1957 MB 104. 42 Queen Empress v. Timmal, (1898) 21 All 122.

2. 'GENERAL EXCEPTIONS' The General Exceptions here referred to are those applicable to all crimes, and are laid down in Chapter IV of the Indian Penal Code . This section is a general provision which imposes the burden of bringing himself within an exception upon the person who relies upon the exception; and there is no distinction between a case in which the exception is contained in the body of the statute imposing the prohibition and a case in which it is not so included. 43 Though in view of Section 105 of the Evidence Act the burden would be upon the accused to prove that the case is falling under general exception under Section 76 , 79 and 80 of IPC (45 of 1860) but it cannot be said that if the allegation made in the complaint makes out a case for general exception the same cannot be considered by the Court or by the police while proceedings for investigation in view of said Section 105 of the Act. 44 Even when the accused denies, in toto, the act or acts alleged, if evidence of the existence of circumstances bringing the case within a general or special exception is to be found in the evidence for the prosecution, the Court must review the whole evidence and either acquit the accused or convict him of the minor offence as the case may be. 45 This section does not relieve a judge, even in cases where the accused has not pleaded that his case comes within any particular exception, from pointing out to the jury such facts in the evidence as might justify in taking the view that the accused's case was covered by one or other exception. 46 In a case of publication of defamatory article to prove that the publication falls within the exceptions, it is not necessary to produce documents in evidence and get them marked through witnesses, Section 105 does not specify that the evidence must be

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pleaded or led. If from the evidence on record it is proved that the general exceptions would apply, presumption of such circumstance under Section 105 is removed and the Court can consider whether the evidence on record proves the offence alleged or not. 47 The Supreme Court has laid down that the burden of proving defences arises only when the prosecution discharges its initial and traditional burden of establishing the complicity of the accused. 48 Even under this section the standard of proof required for establishing a defence is that of a prudent man as laid down in Section 3. 49 But within that standard there are degrees of probability. The nature of the burden on an accused person is not as onerous as the general burden of proving the charge beyond reasonable doubt. The accused may discharge his burden by establishing a mere balance of probabilities in his favour with regard to the alleged crime. 50 Yogendra Morarji picked up a quarrel with his labour as to wages and drove away without paying them. They took a short cut and meeting him on the road signalled him to stop. He was led away by a fear complex and fired at them, killing one and injuring another. Whether the workers came to endanger him, nobody knows. But there could have been a probability of that kind also. The Supreme Court gave him the benefit of that probability. 51 In another case before the Supreme Court 52 a newly wedded wife died of poisoning from strong dose of potassium cyanide. In a short span of only four months of married life she was ill-treated by her husband and in-laws. It was shown in defence that she was very sensitive and awkward. They were allowed the benefit of the probability of suicide. Where two shop-owners were alleged to be negligent to put off the main switch in their shops as a result of which fire broke out affecting the adjoining shops and the facts showed that the shop allotted to the second owner was run by the first owner, the name of the second owner was improperly included as an accused. However, there arose a strong suspicion against the first owner, and commission of the offence could be presumed against him. 53 Where there is no reliable evidence in support of the prosecution case and where the responsibility arises only out of the plea raised by the accused, the Court can convict him only if the plea amounts to a confession of the guilt, but if the plea only amounts to an admission of facts and raises a plea of justification the Court cannot proceed to deal with the case as if the admission of facts which was not part of the prosecution case was true and the evidence did not warrant the plea of justification. 54 Where a part of a section of an Act has been held unenforceable by the Court, it is for the prosecution to establish to the satisfaction of the judge that the case comes within the enforceable part; no onus is cast on the accused to prove that his case falls under that part of the section which has been declared unenforceable. 55 In the case of an offence under Section 14,Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954 in order to bring home the offence charged, the prosecution may have to show that the person to whom the list was sent was not a registered practitioner. Once this is established, it is for the accused to satisfy the court that his case falls underSection 14(1)(c). 56 See Drugs and Magic Remedies (Objectionable Advertisements) Act (1954) Section 3. Where a person causes the death of another person it is for him to show that his act was removed from the category of murder by one of the exceptions to the section. 57 It is for accused to show that he was not a previous convict and deserved to be treated, as first offender. 58 In a prosecution for occupation of municipal land without permission accused stated that occupation is with permission. Burden of proving such occupation lies on him. 59 It is for applicant to convince the court that the order of forfeiture of published book is to be set aside on the ground that the matter published does not fall within mischief of Section 153-A or Section 295-A Penal Code . 60 Where prosecution proves circumstances which would lead to a reasonable inference that an offence under Section 486 , IPC has been committed, the accused has to prove the circumstances set out in the section to claim acquittal 61 . Though there are provisions dealing with cases of exceptions under the Indian Penal Code in criminal cases, the same principle is extended in civil cases also on the principle that when a person relies upon the exception under any general provisions, the onus of proving that his case falls within the exception is on the person who affirms it.62 Railway seeking protection of Section 77 of the Railway Act, 1989 has to establish that Section 77 would apply and further that non-delivery was due to circumstances which made it a case of loss. 63

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The Gauhati High Court has held that the Section 6of the I.P.C. should be read as a proviso to Section 105 of this Act.64 The Court has to consider the entire conduct of the accused, from the time of the commission of the offence up to the time the sessions proceedings commenced for the purpose of ascertaining as to whether the plea of general exceptions taken by him was genuine, bona fide or an after thought. 65 If an accused pleads an exception within the meaning of Section 80 of IPC i.e. accident in doing a lawful act, there is presumption against him and the burden to rebut that presumption lies on him. 66 Where the plea is taken by the petitioner that the publication of the photograph is justified as being for the public good and the actof publication was done in good faith, the such plea is required to be proved by the petitioner in view of Sections 105 of Indian Evidence Act as the good-faith and public good are questions of fact and matters for evidence. 67 43 Emperor v. Dahyabhai Savchand, (1941) 43 Bom LR 519; Government of Bombay v. Samuel, (1946) 48 Bom LR 746, S.B.; Shankar Narayan Bhadolkar v. State of Maharashtra, (2005) 9 SCC 71, 78 (para 14) : AIR 2005 SC 1966 : 2005 CrLJ 1778; Babukhan v. State of M.P., 2004 CrLJ 3299, 3302 (para 14) (MP) : 2004 CrLR (SC & MP) MP 1-522. 44 A.K. Chaudhary v. State of Gujarat, 2006 CrLJ 726, 741 (para 39) (Guj). 45 King-Emperor v. U. Damapala, (1936) 14 Ran 666, FB. Also see State of U.P. v. Lakhmi, AIR 1998 SC 1007 : 1998 CrLJ 1411. 46 Emperor v. Hasan Abdul Karim , (No. 2), (1944) 46 Bom LR 566. Jury system has been now abolished. 47 State of M.P. v. Nisar Ahmad, 1997 CrLJ 3055(MP) . 48 Yogendra Morarji v. State of Gujarat, AIR 1980 SC 660, at 666. 49 See Dahyabhai Chhaganbhai Thakkar v. State of Gujarat, AIR 1964 SC 1563. Also see Sankaran v. State, 1994 CrLJ 1173 (para 10) (Ker); Bhikari v. State of U.P., AIR 1966 SC 1 : 1966 CrLJ 63 (para 6); State of U.P. v. Ram Sarup, AIR 1974 SC 1570 : 1974 CrLJ 1035 (para 19) : Rabindra Kumar Dey v. State of Orissa, AIR 1977 SC 170 : 1977 CrLJ 173 (para 6); Madhvan v. State of Kerala, (1992) 1 Ker LT 544 and Kuzhiyaramadijil Madhvan v. State, 1994 CrLJ 450 (para 9) (Ker). 50 Also to the same effect Mohd. Ramzani v. State of Delhi, AIR 1980 SC 1341; Bhupendrasingh A. Chudasama v. State of Gujarat, AIR 1997 SC 3790 : 1998 CrLJ 57; Babukhan v. State of M.P., 2004 CrLJ 3299, 3302 (para 14) (MP) : 2004 CrLR 1(SCXMP) -522. 51 Yogendra Morarji v. State of Gujarat, AIR 1980 SC 660. 52 Sharad Biridhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622. 53 Usman Ali v. State, 1997 CrLJ 2457(Mad) . 54 Ram Kanwar v. State, AIR 1970 Punj 301. 55 Behram Pesikaka v. State of Bombay, (1954) 56 Bom LR 575. 56 CIT v. India Woolen Textile Mills, AIR 1964 SC 735 : (1964) 5 SCR 427. 57 Shyama Charan v. State, (1969) 1 CrLJ 129; Luck now Bench , AIR 1969 All 61. 58 Mohammadi v. State, 1957 CrLJ 275(All) . 59 Sharanpur Municipality v. Kripa Ram, AIR 1965 All 160. 60 Harnam Das v. State of U.P., AIR 1957 All 538. 61 Panchu v. State, AIR 1956 Cal 268. 62 Mathra Puri v. Hukam Chand, AIR 1965 Punj 231. 63 Union of India v. Meghraj, AIR 1958 Cal 434. 64 Khuraijam Somoi Singh v. State of Manipur, 1997 CrLJ 1461(Gau) .

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65 T.N. Lakshmaiah v. State of Karnataka, (2002) 1 SCC 219 (para 11) : AIR 2001 SC 3828. 66 K.M. Nanavati v. State of Maharashtra, AIR 1962 SC 605 (619) (para 20). 67 Abik Sarkar v. State, 2004 CrLJ 2937, 2941 (para 11) (Cal) : 2004 (3) All CrLR 191 : 2004 Cal CrLR 383 : 2004 (2) Cal LJ 113 : 2004 (3) Cal LT 363.

3. PRIVATE DEFENCE The burden of proof is on the accused who sets up the plea of self-defence and in absence of proof, it may not be possible for the Court to presume the correctness or otherwise of the said plea. No positive evidence although is required to be adduced by the accused, it is possible for him to prove the said fact by eliciting the necessary materials from the witnesses examined by the prosecution. He can establish his plea also from the attending circumstances, as may transpire from the evidence led by the prosecution itself. 68 Under Section 105 of the Evidence Act, the burden of proof is on the accused, who sets of the plea of self-defence, and, in the absence of proof, it is not possible for the Court to presume the truth of the plea of self-defence. The Court shall presume the absence of such circumstances. It is for the accused to place necessary material on record either by himself adducing positive evidence or by eliciting necessary facts from the witnesses examined for the prosecution. An accused taking the plea of the right of private defence is not required to call evidence; he can establish his plea by reference to circumstances transpiring from the prosecution evidence itself. The question in such a case would be a question of assessing the true effect of the prosecution evidence, and not a question of the accused discharging any burden. Where the right of private defence is pleaded, the defence must be a reasonable and probable version satisfying the Court that the harm caused by accused was necessary for either warding off the attack or for forestalling the further reasonable apprehension from the side of the accused. The burden of establishing the plea of self-defence is on the accused and the burden stands discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record. 69 The number of injuries is not always a safe criterion for determining who the aggressor was. It cannot be stated as a universal rule that whenever the injuries are on the body of the accused persons, a presumption must necessarily be raised that the accused persons had caused injuries in exercise of right of private defence. The defence has to further establish that the injuries so caused probabilise the version of right of private defence. Non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance. 70 Where the evidence in respect to the right of private defence of the accused was conflicting, the evidence favouring the accused should be accepted. 71 There is no inflexible rule of law that the party which sustained smaller number of injuries is the aggressor. It depends upon the facts and circumstances of each case. However, in the instant case, the prosecution side suffered smaller number of injuries as compared to the defence side and was held to be aggressor. 72 Where the eye-witness could not state as to how the occurrence in question started, there arose the reasonable doubt as to who the aggressor was and the accused was entitled to benefit of doubt. 73 A plea of right of private defence cannot be based on surmises and speculations. While considering whether the right of private defence is available to an accused, it is not relevant whether he may have a chance to inflict severe and mortal injury on the aggressor. In order to find whether the right of private defence is available to an accused, the entire incident must be examined with case and viewed in its proper setting. 74 Criticising and discarding by the Court the availability of the plea of self-defence to the accused persons on the ground that the plea was not specifically taken by the accused in their statements under Section 313Cr.P.C., and because the injured accused did not enter the witness-box was held to be not right.75 Though Section 105 enacts a rule regarding burden of proof but it does not follow therefrom that the plea of private defence should be specifically taken and if not taken shall not be available to be considered though made out from the evidence available in the case. A plea of self-defence can be

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taken by introducing such plea in the cross-examination of the prosecution witnesses or in the statement of the accused persons recorded under Section 313 CrPC or by adducing defence evidence. And, even if the plea is not introduced in any one of these three modes still it can be raised during the course of submission by relying on the probabilities and circumstances obtaining in the case. 76 However, in absence of any material brought on record to support the plea of private defence, such a plea was held to be unsustainable. 77 The right of private defence lasts so long as the reasonable apprehension of danger to body continues. 78 68 Bishna v. State of W.B., (2005) 12 SCC 657, 683 (para 78). See also Arun v. State of Maharashtra, 2009 CrLJ 2065, 2068-69 (para 6), Hanumantappa Bhimappa Dalavai v. State of Karnataka, 2009 CrLJ 3045, 3047 (para 7). 69 Laxman Singh v. Poonam Singh, AIR 2003 SC 3204 (para 6) : (2004) 10 SCC 94 : (2003) CrLJ 4478; See also Sekar v. State, (2002) 8 SCC 354 (paras 6 and 10); Munshi Ram v. Delhi Administration, AIR 1968 SC 702 : 1968 CrLJ 806; State of Gujarat v. Bai Fatima, (1975) 2 SCC 7 : AIR 1975 SC 1478; State of U.P. v. Musheer Khan, (1977) 3 SCC 562 : AIR 1977 SC 2226; Mohinder Pal Jolly v. State of Punjab, (1979) 3 SCC 30 : AIR 1979 SC 577; Salim Zia v. State of U.P., (1979) 2 SCC 648 : AIR 1979 SC 391; Rizan v. State of Chhattisgarh, AIR 2003 SC 976 (para 13); Kulwant Singh v. State of Punjab, AIR 2004 SC 2875 (para 53); Y. Subramani v. State of T.N., AIR 2005 SC 1983 (para 11); Kashiram v. State of M.P., (2002) 1 SCC 71 (para 23) : AIR 2001 SC 2902, relying on Dahyabhai Chhaganbhai Thakkar v. State of Gujarat, AIR 1964 SC 1563; State of Punjab v. Gurbux Singh, 1995 Supp (3) SCC 734; Yijayaee Singh v. State of U.P., (1990) 3 SCC 190; Dharminder v. State of H.P., (2002) 7 SCC 488 (para 24); Shrikant Anandrao Bhosale v. State of Maharashtra, (2002) 7 SCC 748 (para 13); James Martin v. State of Kerala, (2004) 2 SCC 203, 212 (para 13); State of M.P. v. Ramesh, (2005) 9 SCC 705, 709 (paras 10 and 11) : AIR 2005 SC 1186 : 2005 CrLJ 652; Babulal Bhagwan Khandare v. State of Maharashtra, (2005) 10 SCC 404, 413 (para 26) : AIR 2005 SC 1460; Raj Pal v. State of Haryana, (2006) 9 SCC 678, 682 (para 10) : (2006) 2 Crimes 157; Sreenivasan v. State of Kerala, 2006 Cril LJ 1485, 1489-90 (paras 16 and 7) (Ker); Krishna v. State of U.P., AIR 2007 SC 2452, 2454-55 (paras 7 and 8) : 2007 CrLJ 3525; Shajahan v. State of Kerala, 2007 CrLJ 2291, 2294 (para 16) : (2007) 12 SCC 96; Raghbir Singh v. State of Haryana, AIR 2009 SC 1223, 1226-27 (para 8); Arun v. State of Maharashtra, 2009 CrLJ 2065, 2068-69 (para 6). 70 Arun v. State of Maharashtra, 2009 CrLJ 2065, 2069 (para 7). 71 Machindra Babu Salve v. State of Maharashtra, 1997 CrLJ 486(Bom) . 72 Machindra Babu Salve v. State of Maharashtra, 1997 CrLJ 486(Bom) . Also see Rukma v. Jala, 1997 CrLJ 4641. 73 Periasami v. State of T.N., 1997 CrLJ 219(SC) . Contra : Yalummel Thommachan v. State, 1994 CrLJ 1738 (para 23) (Ker). 74 Arun v. State of Maharashtra, 2009 CrLJ 2065, 2069 (para 7). 75 Kashi Ram v. State of M.P., AIR 2001 SC 2902 (para 24), reversing Cri A No. 244 of 1988, Dt. 26-10-1999 (MP). 76 Kashi Ram v. State of U.P., (2002) 1 SCC 71 (para 24) : AIR 2001 SC 2902, relying on Yijayee Singh v . State of U.P. , (1990) 3 SCC 190 : AIR 1990 SC 1459. See also Ram Kishan v. The State of Rajasthan, 2007 CrLJ 2865, 2873 (paras 24 and 25) (Raj). 77 Jesu Asir Singh v. State, (2007) 12 SCC 19, 23-24 (para 11) : AIR 2007 SC 3015. 78 Raghbir Singh v. State of Haryana, AIR 2009 SC 1223, 1227 (para 9). See also Arun v. State of Maharashtra, 2009 CrLJ 2065, 2069 (para 7).

4. INSANITY In a plea of insanity the burden of proof is on the accused 79 and the mere fact that no motive to kill his wife and children was proved or the fact that he made no attempt to runaway, would not indicate that he was insane. 80 Where plea of unsoundness of mind was raised by the accused for the first time at examination under Section 313,Cr.P.C. but the psychiatrist's report showed no symptom of insanity in him and neither any witness was examined to establish it nor any medical certificate was produced to disprove sanity, it was held that burden of proof was not discharged. 81 Where legal insanity of the accused was not proved but the material on record suggested that he suffered from some mental imbalance or acute disturbing factor which provoked him to commit the four murders but what

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provoked him was not established, it was held to be not a case where sentence should be enhanced to sentence of death. 82 The nature of burden of proof on the accused to prove insanity is no higher than that which rests upon a party to a civil proceedings. In the instant case the burden to prove insanity was held to be discharged and the accused was given the benefit of Section 84 , IPC . 83 D.C. Thakkar v. State of Gujarat, 84 it was laid down that there is rebuttal presumption that the accused was not insane, when he committed the crime. The burden to rebut it lies on the accused by placing relevant evidence but the burden of proof upon him is no higher than that which rests upon a party in civil proceeding. The onus has to be discharged by producing evidence as to the conduct of the accused shortly prior to the offence and his conduct at the time or immediately afterwards, also by evidence of his mental condition and other relevant factors. 85 In the instant case, the accused stated that he was mentally disturbed at the time of incidence which took place in 1981 whereas he had been discharged in 1979 and other prescriptions filed by him pertained to the years 1984 and 1999. It was held that he was not entitled to the benefit of exemption. 86 The accused husband killed his wife with a hasua (a sharp cutting weapon) by inflicting a deep cut injury. The evidence of witnesses was that he was found standing naked by a road side with the blood stained weapon. He was not sent for medical examination and in cross-examination witness stated that at the relevant time, the accused was mad. He also made extra-judicial confession and all that tilted in favour of his insanity. The Court held that the burden of proof in such circumstances was irrelevant and set aside his conviction. 87 79 Kuzhiyaramadiyil Madhvan v. State, 1994 CrLJ 450 (para 9) (Ker); Sushil Bhoi alias Sursingh alias Bundi Bhoi v. The State, 1994 CrLJ NOC 110(Ori) ; Meh Ram v. State, 1994 CrLJ 1897 (para 9) (Raj); Dharmendrasinh v. State of Gujarat, (2002) 4 SCC 679 (para 15); Atrup v. State of Rajasthan, 2003 CrLJ 4031, 4033 (para 5) (Raj) : 2003 (3) Raj Cr C 1271 : 2003 (3) Raj LR 62 : 2003 (3) WLC 248; Bharat Kumar v. State of Rajasthan, 2004 CrLJ 1958, 1959 (para 8) (Raj) : 2004 (2) Raj Cr C 1022 : 2004 (1) Raj LR 832 : 2004 (2) Raj LW 1160 : 2004 (3) Rec Cr R 182 : 2004 (2) WLC 380; Madhukar G. Nigade v. State of Maharashtra, 2006 CrLJ 1305, 1307 (para 8) (Bom); Bihari Lal v. State of H.P., 2006 CrLJ 3832, 3840-41 (para 27) (HP); Ganga Singh Kali Ram v. State of Uttaranchal, 2007 CrLJ 191(NOC) (Utr) ; Mariappan v. State, 2007 CrLJ 330(NOC) (Mad) ; Babasaheb Thombre v. State of Maharashtra, 2008 CrLJ 2935, 293738 (para 11) (Bom); Mahendra Singh v. State of Rajasthan, 2008 CrLJ 3850, 3853-54 (para 10) (Raj); Siddhapal Kamala Yadav v. State of Maharashtra, AIR 2009 SC 97, 99-100 (para 8) : (2009) 1 SCC 124. 80 Sheralhi Wali Mohammed v. State of Maharashtra, AIR 1972 SC 2443. 81 Sankaran v. State, 1994 CrLJ 1173 (para 9) (Ker). 82 Namdeo Satyagonda Patil v. State of Maharashtra, 1994 CrLJ 3493 (paras 38 and 39) (Bom), relying on Devendra Singh v. State of U.P., 1971 CrLJ 1283 : AIR 1971 SC 1759. 83 Shrikant Anandrao Bhosale v. State of Maharashtra, (2002) 7 SCC 748 (para 18); Discharge of burden, Vidya Devi v. State of Rajasthan, 2004 CrLJ 2332, 2343 (paras 43 & 44) : 2004 CrLR (Raj) Raj 381 : 2004 (2) Raj Cr C 583 : 2004 (2) Raj LR 764 : 2004 (2) Raj LW 1261 : 2004 (2) WLC 691. See also Siddhapal Kamala Yadav v. State of Maharashtra, AIR 2009 SC 97, 99-100 (para 8) : (2009) 1 SCC 124. 84 AIR 1964 SC 1563. See also Ratanlal v. State of Gujarat, AIR 1971 SC 778. See also Bapu v . State of Rajasthan, (2007) 8 SCC 66, 71-72 (para 7) : (2007) 9 JT 110; Dahyabhai Chhaganbhai Thakkar v. State of Gujarat, AIR 1964 SC 1563. 85 Bapu v. State of Rajasthan, (2007) 8 SCC 66, 72 (para 8). See also Siddhapal Kamala Yadav v. State of Maharashtra, AIR 2009 SC 97, 99-100 (para 8) : (2009) 1 SCC 124. 86 Ganga Singh Kali Ram v. State of Uttaranchal, 2007 CrLJ 191(NOC) (Utr.) . 87 Sahadeb Mondal v. State of W.B., 2007 CrLJ 1728(Cal) .

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Ratanlal & Dhirajlal: Law of Evidence, Updated 23rd Edition/THE INDIAN EVIDENCE ACT (ACT 1 OF 1872)/PART III PRODUCTION AND EFFECT OF EVIDENCE/CHAPTER VII THE BURDEN OF PROOF/S. 106.

CHAPTER VII THE BURDEN OF PROOF S. 106. Burden of proving fact especially within knowledge. When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. ILLUSTRATIONS 10a)   When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him. 11b)   A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him. 1. PRINCIPLE

This section states that when any fact is specially within the knowledge of any person the burden of proving that fact is upon him. This is an exception to the general rule contained in Section 101, namely, that the burden is on the person who asserts a fact. The principle underlying Section 106 which is an exception to the general rule governing burden of proof applies only to such matters of defence which are supposed to be especially within the knowledge of the defendant. It cannot apply when the fact is such as to be capable of being known also by a person other than the defendant. It is the bounden duty of a party, personally knowing the whole circumstances of the case, to give evidence on his own behalf and to submit to cross-examination. His non-appearance as a witness would be the strongest possible circumstance going to discredit the truth of his case. 88 Section 106 should be confined to those cases where a fact is specially within the knowledge of any person. 89 When the matter is within the knowledge of the defendant, he is to prove the same. 90 This section applies only to the parties to a suit or proceeding.

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The Supreme Court had to deal with a case where the appellant was charged with having unauthorisedly claimed second class fare on account of travelling allowance. The prosecution relied on the circumstance that no second class ticket was issued on the relevant date and relying on illustration (b) to Section 106 contended that the burden of proving that the appellant paid the fare was on him. Dealing with this contention the Supreme Court observed that Section 106 is an exception to Section 101 which lays down the general rule that the burden of proof in a criminal case is on the prosecution and Section 106 is not intended to relieve it of the duty. The Supreme Court observed: "On the contrary it is designed to meet certain exceptional cases in which it would to be impossible or at any rate disproportionately difficult for the prosecution to establish facts which are "especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word "especially" stresses that. It means facts that are pre-eminently or especially within his knowledge." 92 Where on the day of occurrence, the four minor children killed in the incident, were

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employed for manufacture of explosive, the onus was held to be on prosecution and the prosecution had to prove all the ingredients of the offence and Section 106 did not absolve it from proving its case. 93 If the section were to be interpreted otherwise it would lead to the very starting conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he, whether he did or did not. It is evident that, that cannot be the intention and the Privy Council twice refused to construe this section as reproduced in certain other acts outside India to mean that the burden lies on an accused person to show that he did not commit the crime for which he is tried. 94 Illustration (b) to Section 106has obvious reference to a very special type of case namely to offences under Sections 112 and 133 of the Indian Railways Act for travelling or attempting to travel without a pass or ticket or with an insufficient pass etc. Now if a passenger is seen in a railway carriage or at the ticket barrier and is unable to produce a ticket or explain his presence it would obviously be impossible in most cases for the railway to prove or even with due diligence to find out where he came from and where he is going and whether or not he purchased a ticket. On the other hand it would be comparatively simple for the passenger either to produce his pass or ticket or in the case of loss or of some other valid explanation to set it out; and so far as proof is concerned it would be easier for him to prove the substance of his explanation than for the State to establish its falsity. We recognise that an illustration does not exhaust the full content of the section which it illustrates but equally it can neither curtail nor expand its ambit; and if knowledge of certain facts is as much available to the prosecution, should it choose to exercise due diligence, as to the accused the facts cannot be said to be "especially" within the knowledge of the accused. This is a section which must be considered in a common sense way and the balance of convenience and the disproportion of the labour that would be involved in finding out and proving certain facts balanced against the triviality of the issue at stake and the case with which the accused could prove them, are all matters that must be taken into consideration. The section cannot be used to undermine the well established rule of law that, save in very exceptional class of cases, the burden is on the prosecution and never shifts". 95 In Seneviratne v. R, 96 the Privy Council held that Section 106 does not cast any burden on the accused to prove that he had not committed the offence by proving facts lying specially within his knowledge, that if anything is unexplained which the jury think the accused could explain then they, not only may, but must, find him guilty. 97 In a case resting on circumstantial evidence, if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. 1 In Sawal Das v. State of Bihar 2 the Supreme Court observed: "Learned Counsel for the appellant contended that Section 106 of the Evidence Act could not be called in aid by the prosecution because that section applies only where a fact relating to the actual commission of the offence is within the special knowledge of the accused, such as the circumstances in which, or the intention with which, an accused did a particular act alleged to constitute an offence. The language of Section 106 of the Evidence Act does not in our opinion warrant putting such a narrow construction upon it. This Court held in Gurcharan Singh v. State of Punjab 3 that the burden of proving a plea specially set up by an accused which may absolve him from criminal liability, certainly lies upon him. It is a different matter that the quantum of evidence by which he may succeed in discharging his burden of creating reasonable belief, that circumstances absolving him from criminal a liability may have existed, is lower than the burden resting upon the prosecution to establish the guilt of an accused beyond reasonable doubt. Neither the application of Section 103 nor that of 106 of the Evidence Act could, however, absolve the prosecution from the duty of discharging its general or primary burden of proving the prosecution case beyond reasonable doubt. It is only when the prosecution has led evidence which, if believed, will sustain a conviction, or which makes out a prima facie case, that the question arises of considering facts of which the burden of proof may lie upon the accused. The crucial question in the case before us is: "Has the prosecution discharged its initial or general and primary burden of proving the guilt of the appellant beyond reasonable doubt." Section 106 of the Evidence Act does not relieve the prosecution to prove its case beyond all reasonable doubt. Only when the prosecution case has been proved, the burden in regard to such facts which was within the special knowledge of the accused,

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may be shifted to the accused for explaining the same. Of course, there are certain exceptions to the said rule e.g. where burden of proof may be imposed upon the accused by reason of a statute. 4 Section 106 would apply to cases where the prosecution has succeeded in proving the facts from which reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the Court to draw a different inference. It is now well settled that Section 106 is designed to meet certain exceptional cases in which it would be impossible for the prosecution to establish certain facts which are particularly within the special knowledge of the accused. 5 The Supreme Court observed: "The principle underlying Section 106 which is an exception to the general rule governing burden of proof applies only to such matters of defence which were supposed to be specially within the knowledge of the party concerned. It cannot apply when the fact is such as to be capable of being known also by persons other than the party". 6 It was held that when various links in the prosecution case have been satisfactorily made out pointing the accused as the probable assailant and the proximity of the accused to the deceased as regards the time and situation, and if the accused does not offer any explanation which might afford a reasonable basis for a conclusion consistent with his innocence such absence of explanation or false explanation would be an additional link to the prosecution links. Following this principle in In re : Naina Md. 7 it was held that though Section 106 does not cast any burden on the accused, if some facts are specially within his knowledge he has to prove the same which could support any theory or hypothesis compatible with his innocence. This section does not cast any burden on an accused person to prove that no crime was committed by proving facts specially within his knowledge nor does it warrant the conclusion that if anything is unexplained which the court thinks the accused could explain, he ought therefore to be found guilty. 8 It does not affect the onus of proving the guilt of the accused. That onus rests the prosecution and is not shifted on to the accused by reason of the section. 9 It is only in cases where the facts proved by the evidence give rise to reasonable inference of guilt unless the same is rebutted, and such inference can be negatived by proof of some fact which in its nature can only be within the special knowledge of the accused that the burden of proving the fact is on the accused. 10 This section cannot be used to shift the onus of establishing an essential ingredient of the offence on the accused. 11 To infer guilt of the accused from the absence of a reasonable explanation (or a false explanation) where the other circumstances are not by themselves enough to call for his explanation would be to relieve the prosecution of its burden. 12 In cases of criminal breach of trust, the burden is on the prosecution, initially to prove the guilt of the accused, and that burden is not shifted on to the accused by reason of Section 106 which is not intended to relieve the prosecution of its initial burden of proof which is fundamental in criminal jurisprudence. 13 It is only when the prosecution led evidence, if believed, which would sustain a conviction, then the burden of proving anything would lie on the accused under Section 106. 14 Section 106 cannot be invoked to make up for inability of the prosecution to produce evidence to prove the guilt of the accused. 15 This section is not intended to be used to place upon the accused the burden of proving his innocence. 16 Once the court is satisfied that the evidence either direct or circumstantial is acceptable against the accused and if the accused takes up a plea based on facts which are within his special knowledge, it is for him to prove those facts under Section 106. The standard of proof by the accused in not so high as in the case of prosecution. 17 Where a person was charged for using iron material for a purpose other than the specific purpose for which a permit was given, it was held that the purpose for which it was used was in the special knowledge of the accused, and he has to prove the same under Section 106 and merely because the prosecution failed to prove the misuse of the material which is in the negative form, the accused

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cannot escape liability. 18 Where a postman was charged with criminal mis-appropriation of moneyorder amounts and when the accused admitted not having delivered the amounts to the payee, but gave it to some boy in that house and the other students living in that room denied receiving the amount, it was held that as it was within the knowledge of the accused to whom he gave the money, it was for him to prove the same under Section 106. 19 When the accused was prosecuted for occupation of municipal land without permission and when the accused pleaded that the occupation is with permission, he is to prove that he had permission. 20 Where a postmaster was charged for the offence of forgery for having signed money order receipts as payee and the accused pleaded alibi, it was held that Section 106 was not attracted and the accused could not be asked to prove as to who signed the receipt and who are witnesses to it. 21 The burden of proving alibi undoubtedly, lies on the accused, but even so, the burden of proving the case is on the prosecution irrespective of whether or not the accused have made out a plausible defence. 22 In the case of an offence under Sections 5(3)(a) under the Explosives Act , on account of an explosion in a licensed premises causing some death of minor children, it was held that it was for the prosecution to prove all the ingredients of the offence, andSection 106 would not absolve it from proving its case; if once that is proved the accused may prove that minors were not employed in the manufacture of explosives or that explosives were not manufactured at all on the day of occurrence. 23 In the case of Explosive Substances Act , it is only after the prosecution proves conscious possession and actual control of the incriminating article with guilty knowledge, that accused should explain his possession.24 When the accused pleads the first exception to Section 499 , IPC , viz., that the imputation is true and made for the public good in a defamation case, it is for him to prove facts to come within that exception. 25 When a corpse concealed from the public view is discovered on the information given by the accused, a reasonable inference that the accused himself concealed it can be drawn, in the absence of any explanation as to how he obtained that knowledge under Section 106. 26 When an accused fired a pistol causing superficial injuries he would be deemed to have fired the pistol with knowledge that the shot would be fatal, but if the accused pleads that he used defective ammunition, then it is he that should prove it, as it is within his knowledge that it contained defective ammunition. 27 In an offence for misappropriation under Section 409,I.P.C. proof of the manner in which the money was misappropriated is not necessary. The burden is on the accused to show how the money was utilised.28 Several persons were found at eleven o'clock at night on a spot outside the city of Agra, all carrying guns concealed under their clothes. None of them had a licence to carry arms and none of them could give any reasonable explanation of the presence at the spot under the particular circumstances. It was proved that dacoities had been frequent in the neighbourhood. It was held that they were guilty under Section 402 of the Indian Penal Code as it was not shown by them that the object for which they had assembled was not that of committing dacoity.29 In the case of dacoity when the prosecution establishes some circumstances giving rise to a legitimate inference that the accused's intention was to commit dacoity then it is for the accused to prove that their intention was different under illustration (a) of Section 106. 30 The deceased woman had asked the children viewing the television inside the room to go out then she bolted the room from inside. As they saw smoke coming from the room, they rushed towards the same and broke open the door alongwith her husband who subsequently took her to hospital. In her dying declaration she accused her husband to have burnt her. The Supreme Court held that in such circumstances Section 106 of the Evidence Act had no application whatsoever as it was not a case of last seen together inside the room. 31 88 Gurbakish Singh v. Gurdial Singh, (1927) 29 Bom LR 1392 PC. 89 Sridhar Misra v. Jaichandra, AIR 1959 All 598.

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90 Madamanchi Gouindayya v. Madamanchi Chimpiramma, (1966) 1 An WR 227; Sachindra Nath Das v. Corpon. of Calcutta, (1966) 1 Cal 216 : (ILR) (1970) 2 Ker 109. 91 Mahabir Singh v. Rohini, AIR 1933 PC 87. 92 Shambhunath Mehra v. State of Ajmer, AIR 1956 SC 404, 406 (para 11) : 1956 SCJ 429. See also Shri Moni Neog v. State of Assam, 2006 CrLJ 1944, 1961 (paras 52, 53 and 54) (Gau). 93 Mohd. Usman v. State of Bihar, AIR 1968 SC 1273, 1274. 94 These cases are Attygalle v. Emperor and Senivaratne v. R., (1936) 3 All ER 36; AIR 1936 PC 289. 95 Mukand Lal v. State, AIR 1957 Raj 178; Ambalal v. Union of India, AIR 1961 SC 264; Jethalal Nanalal v. State of Gujarat, AIR 1968 Guj 163. 96 1936 PC 289. 97 Matilal v. R, AIR 1949 Cal 586; State of Orissa v. Prafulla Kumar, AIR 1964 Ori 46 : Trimukh Maroti Kirkan v. State of Maharasthra, (2006) 10 SCC 681, 694-95 (para 21-22) : 2007 CrLJ 20; Shri Moni Neog v. State of Assam, 2006 CrLJ 1944, 1961 (paras 52 and 53) (Gau); Geejaganda Somaiah v. State of Karnataka, (2007) 9 SCC 315, 327-28 (para 28) : AIR 2007 SC 1355; State of Rajasthan v. Jaggu Ram, AIR 2008 SC 982, 987 (para 20) : 2008 CrLJ 1039 : (2008) 1 JT 199. 1 State of Rajasthan v. Kashi Ram, (2006) 12 SCC 254, 265 (para 23) : AIR 2007 SC 144. 2 AIR 1974 SC 2276. 3 AIR 1956 SC 460. 4 Vikramajit Singh v. State of Punjab, (2006) 12 SCC 306, 313 (para 14) : 2007 CrLJ 1000. See also Registrar General, High Court of Karnataka v. Prakash Jadav, 2006 CrLJ 3393, 2401-02 (para 18) (Kant). 5 Registrar General, High Court of Karnataka v. Prakash Jadav, 2006 CrLJ 3393, 2401-02 (para 18) (Kant). 6 Razik Ram v. J.S. Chouhan, AIR 1975 SC 667. 7 AIR 1960 Mad 218. 8 King Emperor v. U. Damapala, (1936) 14 Rang 666(F.B.) ; Shewaram v. Crown, ILR (1940) Kar 249; Enamul Huq , (1951) 1 Cal 204. 9 Crown v. Santa Singh, (1945) 26 Lah 137. 10 Narayyan v. Executive Officer CP Board, AIR 1965 Ker 73; See also In re : Naina Mohamed, AIR 1960 Mad 218. 11 Jethala v. State, AIR 1968 (Guj) 163. 12 Hadu v. State, AIR 1951 Oris 53. 13 State of Orissa v. Prafulla Kumar Santra, AIR 1964 Ori 46; In re : Wahib Basha, AIR 1961 Mad 162; (case of possession of Ganja) Gopal Chandra Das v. State of Assam, 1988 CrLJ 481(Gau) . 14 Md. Hussain v. State of Bihar, 1987 CrLJ 1391(Pat) ; N. Shantilal Baldota v. Dr. Kalhi, Collector of Central Excise, Bombay, ILR 1979 Bom 329. 15 Gullegar Setty v. State, AIR 1953 Mys 31 : ILR 1953 Mys 298. 16 In re : Basavaraja Swami , AIR 1967 Mys 210; Narayanan Nambiar v. Executive Officer Cherukunnu Panchayat Board, AIR 1965 Ker 73. 17 Arjun Tewari v. State, 1977 CrLJ 1751; Narayanan Nambiar v. Executive Officer Cherukunnu Panchayat Board, AIR 1965 Ker 73; Maibam Birahari Singh v. Manipur Administration, 1967 Manipur 41. 18 Public Prosecutor v. Ramasami, AIR 1952 Mad 162. 19 Nilamber v. State, AIR 1957 All 381; See also State v. Radha Kishan, (1961) 1 CrLJ 595(All) . 20 Sharanpur Municipal Board v. Kripa Ram, AIR 1965 All 160.

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21 In re : Basawaraja Swami , AIR 1967 Mys 210. 22 Gurcharan Singh v. State of Punjab, AIR 1956 SC 460. 23 Md. Usman v. State of Bihar, AIR 1968 SC 1273. 24 State of Bihar v. Amir Hasan, AIR 1951 Pat 638. 25 Hardevi v. State, AIR 1969 All 423. 26 Harmal v. State, 1971 CrLJ 1215(All) . 27 Badshah Singh v. State, AIR 1958 All 677. 28 Brahmananda Mohanty v. State, AIR 1967 Ori 135; Duttahari Mohapatra v. Republic of India, ILR 1970 Cut 766; State of Orissa v. Raj Kishore Singh Samanta, (1966) 32 Cut LT 41; 1971 BLJR 322. 29 Queen Emperor v. Bholu, (1900) 23 All 124. 30 State v. Dhanpat Chamara, AIR 1960 Pat 582; Jain Lal v. Emperor, AIR 1943 Pat 82; Navsing Thavaria v. State of Gujarat, 1968 CrLJ 996; State of U.P. v. Randhir Srichand, AIR 1959 All 727. 31 P.Mani v. State of T.N., AIR 2006 SC 1319, 1321 (para 10) : (2006) 3 SCC 161.

2. INTENTION, MENS REA The Privy Council in Srinivas Mall v. Emperor 32 held that the court should bear in mind that unless the statute rules out mens rea as a constituent part of the crime an accused should not be found guilty of an offence against the criminal law unless he has got a guilty mind. In a case where words describing mens rea do not appear in the definition of the crime, it is for the accused to show that he acted without mens rea . 33 Intention or guilty knowledge of the accused has to be proved by the prosecution and it is not on the accused. 34 It is not for the prosecution to anticipate and eliminate all possible defence of circumstances which may exonerate an accused. If the accused had a different intention, that is a fact especially within his knowledge which he must prove. 35 When there is failure to honour a negotiable instrument, the prosecution must prove the circumstances showing the intention to cheat to make out an offence under Section 420,I.P.C. 36 32 AIR 1947 PC 135. 33 State v. Munni Lal, AIR 1953 Punj 204. 34 Sattiah v. State of A.P., AIR 1960 A.P. 153; relying on Attygalle v. King, AIR 1936 PC 169; Stephen Seneviratne v. King, AIR 1936 PC 289. 35 Arundhati Keutuni v. State of Orissa, 1968 CrLJ 848. 36 Ajodhya Prasad v. Chiranjilal, AIR 1957 All 246.

3. ALIBI Burden of proving the plea of alibi by positive evidence lies on the accused who raises it. 37 When the hostile witness claimed that the accused had gone to the temple to see the festival at the night of the occurrence and if it is raised as plea of alibi the burden to prove that he was not present at the time of incident was on the accused. 38 37 Brijlala Pd. Sinha v. State of Bihar, AIR 1998 SC 2443 : 1998 CrLJ 3611; Nishar Ahmed Fajmohmed Kaji v. State of Gujarat, (1998) 9 SCC 23 : 1998 SCC 967(Cri) .

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38 Ramchandran v. State of Kerala, 2005 CrLJ 1843, 1848 (para 9) (Ker).

4. LAST SEEN When the couple was last seen together in a premises to which an outsider may not have any access, it was for the husband to explain the ground for unnatural death of his wife. 39 39 Dnyaneshwar v. State of Maharashtra, (2007) 10 SCC 445, 447 (para 10) : (2007) 4 SLT 320, relying on Raj Kumar Prasad Tamarkar v. State of Bihar, (2007) 10 SCC 433 : (2007) 1 Scale 19 : 2007 CrLJ 1174. See also Swamy Shraddananda v. State of Karnataka, (2007) 12 SCC 288, 307-08 (paras 34 and 35) : AIR 2007 SC 2531; State of Rajasthan v. Parthu, (2007) 12 SCC 754, 758 (para 13) : AIR 2007 SC 10, State of Rajasthan v. Kashi Ram, (2006) 12 SCC 254 : (2006) 11 Scale 440 : AIR 2007 SC 144; Ramanand Pandey v. State, 2008 CrLJ 68(NOC) (Bom) : 2007 (5) AIR Bom R 584.

5. INDIAN PENAL CODE , S. 409 In order to sustain conviction under Section 409 , IPC the prosecution is required to prove that (a) the accused, a public servant was entrusted with property of which he was duty-bound to account for, and (b) the accused had misappropriated the property. Where the entrustment is proved or is admitted by the accused, it is for him to discharge the burden that the entrustment has been carried out as accepted and the obligation has been discharged. 40 40 Mustafikhan v. State of Maharashtra, (2007) 1 SCC 623, 625 (paras 9, 10 and 11).

6. CUSTODIAL DEATH In a custodial death case, it is incumbent upon the State to prove that the police station which took the accused in custody or the jail authority which subsequently took him to custody had no hand in the death of the deceased. 41 41 Dino DG Dyonpep v. State of Meghalaya, AIR 2007 Gau 155, 161 (para 10).

7. PROHIBITION CASES The Supreme Court held that the burden to establish that the offence took place within the jurisdiction of a particular magistrate is upon the prosecution and therefore such knowledge cannot be said to be especially within the knowledge of the accused to prove anything under Section 106. 42 The Gujarat H.C., however, following Shambhunath Mehra's Case 43 and explaining Krishnakumar's case 44 held that though the burden on the prosecution would not shift to prove its case, under Section 106 the accused can establish that he had consumed liquor at a place where it was not an offence to consume. 45 The accused can also show under Section 106 that what he consumed was exempted liquor. 46 42 Krishna Kumar v. Union of India , AIR, 1959 SC 1390. 43 AIR, 1956 SC 404. 44 AIR, 1959 SC 1390. 45 State v. Dhulaji Bauaji, AIR 1963 Guj 234; Gullegar Setty v. State, AIR 1953 Mys 31; State v. Pranjivan, AIR 1952 Sau 35; Chhaganji v. State, AIR 1970 Gau 131, Rabari Ramji v. State, AIR 1954 Sau 31. 46 State v. Talshi Sadul, AIR 1953 Sau 14; State v. Rang Rao Bala, AIR 1952 Bom 327; Maniram Gunju v. State of Assam, AIR 1970 Assam 49. Possession of forbidden article (spirit), burden on accused, P.K. Arjunan v. State of Kerala, (2007) 9 SCC 516, 520 (para 14) : AIR 2007 SC 2331.

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8. CUSTOMS In proceedings under Sections 167(8) of Sea Customs Act for confiscation of goods, the Collector of Customs has to be guided by the provisions ofSection 106 besides the principles of natural justice, though the Evidence Act and the Criminal Procedure Codedo not in terms govern the onus of proof in such proceedings. The broad effect of the application of the basic principle underlined Sections 106 to cases under Sections 167 of the Sea (8) Customs Act is that the department would be deemed to have discharged its burden if it adduces only so much evidence, circumstantial or direct, as is sufficient to raise a presumption in its favour with regard to the existence of the facts sought to be proved.47 Burden of proving innocent receipt of goods under the Customs Act is on the accused. 48 Where the question was whether the accused had a valid permit to export uncleaned tur-dhal , it was held that the burden is on the prosecution to prove that the commodity which was being exported was uncleaned turdhal and it was not for the accused to prove that the commodity which he was exporting was not uncleaned tur-dhal . 49 Where foreign goods were seized under the Customs Act , the accused pleaded that the goods were sent to him by a broker from Bombay, the accused has to prove those facts which are within his knowledge.50 The burden of proving that goods are not smuggled goods shall be on the person from whose possession goods were seized as Section 123(1)of Customs Act 1962 is similar to the provisions ofSection 106. 51 Where a person was found in possession of gold with foreign markings, the Supreme Court held that burden lay upon him to account for his possession. 52 In a case for the offences of smuggling goods, when the accused pleads that he had no hand in smuggling it is for him to prove that fact. 53 When contraband gold of foreign origin was seized from the petitioner at the Imphal-border and the petitioner No. 2 admitted ownership of gold and he handed it over to petitioner No. 1 inside the border for being taken to Imphal, it was held that the petitioners must prove the special fact within their knowledge as to how they came into possession of gold. 54 The burden is on the importer to produce the permission granted to him under Foreign Exchange Regulation Act 1947.55 The burden of proving unlawful importation of goods is on the customs authorities, when the goods seized are not covered by Sections 178-A of the Customs Act . In such casesSection 106 does not apply. The Supreme Court observed: " Section 106 of the Evidence Act in terms does not apply to a proceeding under the said Act. But it may be assumed that the principle underlying the said section is of universal application and under that section any fact especially within the knowledge of any person, the burden of proving that fact is upon him". 56 It is not for the accused to prove the negative, namely that the goods were lawfully imported either by himself or by somebody else. 57 47 Collector of Customs v. D. Bhoormul, AIR 1974 SC 859; relying on Kanungo & Co. v. Collector of Customs, AIR 1972 SC 2136; Issardas Daulatram v. Union of India, AIR 1966 SC 1867 and dissenting from Ambalal v. Union of India, AIR 1961 SC 264. 48 Labhchand Dhanpat Singh Jain v. State of Maharashtra, AIR 1975 SC 182. 49 Shrinivas Pannalal v. State of M.P., AIR 1954 SC 23; overruling Shanker Rao Deshmukh v. Vinayak, AIR 1951 Nag 307. 50 Shah Guman Mal v. State of A.P., AIR 1980 SC 793. 51 1985 Mad LJ (Cri) 353 (Coloum 2) (Kant.). 52 Shah Guman Mal v. State of A.P., AIR 1980 SC 793. 53 Thangdawla Lushai and Land Customs v. Assistant Collector, Central Exercise, AIR (1965) 1 CrLJ 515. 54 Neithanga Hmar v. Assistant Collector, Central Excise and Land Customs, AIR 1963 Manipur 1.

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55 Satyendra Kumar Dutta v. District Board of 24 Paragana's, AIR 1959 Cal 536. 56 Ambalal v. Union of India, AIR 1961 SC 264; Mangala Prosad v. V.J. Manerikar, AIR 1965 Cal 507; Gianchand v. State of Punjab, AIR 1962 SC 496; Hiralal Sarangi v. Collector of Central Excise, AIR 1962 Assam 39; Sanwarmal Purohit v. Collector of C.E. & L. Customs, AIR 1964 Assam 121(FB) . 57 Collector of Customs, Madras v. Nathella Sampathu Chetty, AIR 1962 SC 316; Lawrence v. The King, 1933 AC 699; Woolmington v. Director of P.P., AIR 1935 AC 462.

9. PREVENTION OF CORRUPTION The Supreme Court held that the offence under Sections 5(1)(c) of Prevention of Corruption Act is constituted when the property has been received by the accused for or in the name, or on account of the master or employer and it is complete when the servant fraudulently mis-appropriates that property. And the accused underSection 106 has to prove his innocence. 58 58 Krishn Kumar v. Union of India, AIR 1959 SC 1390.

10. ESSENTIAL COMMODITIES ETC. In a prosecution under the Essential Commodities Act , the dealer accused has to show how borken rice came to be mixed with the whole rice, because that matter is specially within his knowledge. 59 Under the Mysore Movement of Timber (Control) Order, 1948, the prosecution should prove not only that timber was found in the house of the accused but also his possession commenced more than 24 hours prior to the discovery, and Section 106 cannot be invoked against the accused. 60 59 State of A.P. v. B. Prakasa Rao, AIR 1976 SC 1845. 60 Subbaraya v. Government of Mysore, AIR 1952 Mys 8; Mukandlal v. State, AIR 1957 Raj 178; (Possession of foodgrain by the accused for more than a week under Rajasthan Food-grains Control Act 1949) relying on Behram Kurshid v. State of Bombay, AIR 1955 SC 123.

11. N.D. AND P.S. ACT Where the factory from where the psychotropic substances were seized belonged to the accused, burden was on him prove how the offending articles came to be found in his factory. 61 61 Jagdish Budhroji Purohit v. State of Maharashtra, (1998) 7 SCC 270 : 1998 SCC 1578(Cri) . See also Avtar Singh v. State of Punjab, (2002) 7 SCC 419 (para 6) : AIR 2002 SC 3343 : 2002 CrLJ 4330; Madan Lal v. State of H.P., (2003) 7 SCC 465 (paras 27 and 28) : AIR 2003 SC 3642 : 2003 CrLJ 3868; Durga Prasad Gupta v. State of Rajasthan, (2003) 12 SCC 257 (para 27).

12. NEGOTIABLE INSTRUMENTS ACT In case of dishonour of a cheque issued by a company, the drawee is generally expected only to be aware of who are in-charge of the affairs of the company. It is not reasonably expected of him to know whether the person who signed the cheque was instructed to do so or whether he has been deprived of such authority. These are the matters peculiarly within the knowledge of the company and those incharge of it and it is for them to establish the same. 62 62 N. Rangachari v. Bharat Sanchar Nigam Ltd., (2007) 5 SCC 108, 119 (para 27) : AIR 2007 SC 1682.

13. RAILWAY

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There is a duty on the part of the Railway to disclose the manner of dealing with the consignment. Where the facts were within the knowledge of the railway administration, it must prove such facts. 63 There is nothing in Sections 74-D of the Railways Act to indicate any legislative intent to override the provisions of eitherSection 106 or Section 114 of the Evidence Act. 64 When certain articles are delivered to the accused for booking them by signing a requisition form and he fails to book them and they are missing, as the matter is within his special knowledge, he is bound to explain the missing of the articles under Section 106. 65 In a case where the accused travelled without pass or ticket, it is for the prosecution to prove that there was intention to defraud the railway administration; mere travelling without pass or ticket does not attract Sections 112 of the Railways Act . The question of intention is one which depends upon circumstances of each case. If once that is proved then the accused may prove as to how his travel without a ticket was not in contravention of Sections 68 of the Railways Act and to that extent the burden is on him; as such facts will be especially within his knowledge.66 The burden of proving that the accused passenger had a ticket, is on him. However, this principle is not applicable to the case of a person dying in the course of railway travel and whose body was taken in custody of the Railway Police in which case it is the duty of the Railway Authority to first give evidence that he was without a valid ticket. Thereafter, the onus will shift to the claimant of compensation to prove that he was a bona fide passenger. 67 When a reply to a notice was given by the General Manager Railways indicating the receipt of notice, the Railways has to prove the act ual date of receipt of notice, to show that the claim was out of time. 68

Where the shortage-cum-damage certificate was issued by the railways but it chose not to enter the witness-box or at least to make an attempt to disprove the said certificate, the Court held that it could be said that the burden was discharged by claimant and it was entitled to damages for short delivery. 69 63 Union of India v. Bhagat Ram, AIR 1967 Del 153; Banarsi Stores v. President of the Union of Indian Republic, AIR 1953 All 318. 64 Tulsidas Vithal das v. Union of India, AIR 1967 Guj 130; Union of India v. Sri Ram Richpal, AIR 1965 All 246. 65 In re : Vellai Pillai, AIR 1952 Mad 322. 66 Sudhir Chandra Gupta v. State of Assam, AIR 1965 Assam 38. 67 Asharani Das v. U.O.I., AIR 2009 Cal 205, 208 (para 16). 68 Nagarmal More v. Union of India, AIR 1971 Assam 41; Jainarain v. G.G. of India, AIR 1951 Cal 462; G.G. in Council v. Krishna Shenoy, AIR 1951 Mad 327. 69 Union of India v. Sri Venkatarama Oil Industries Ltd., AIR 2007 (NOC) 2260(AP) .

14. NON-DELIVERY OR SHORT DELIVERY OF GOODS In suits for damages for the loss of goods in transit it is for the plaintiff to prove that the loss occurred due to the negligence or want of skill of the defendant carrier under Section 74(c), but it is also the duty of the carrier to show under Section 74(d) how the consignment was dealt with during the transit, as that is a matter within the special knowledge of the defendant or its servants and agents. The defendant must first adduce evidence disclosing its treatment of the goods and the plaintiff may rely on that evidence in addition to any tendered by him to show that the loss had occurred by reason of the defendant's default or negligence or that the loss could not have occurred but for such default or negligence. If the defendant does not adduce all the evidence at its command the plaintiff may, in proper cases, ask the court to make a presumption under Section 114(g) against the defendant. 70 Under Sections 80 of the Railways Act , there is a burden on the plaintiff to prove that the goods sent through railway was lost or damaged, and he cannot take advantage ofSection 106. 71 In the case of claim for compensation from the railways, if the plaintiff does not call for any disclosure from the railways, it was held that no duty lies on railway to disclose anything or how the consignment was

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dealt with during the transit and no adverse presumption against the railway can be drawn. 72 However, the railway to get protection under Sections 74-A of the Railways Act has to show that short delivery was due to defective packing.73 When the goods were insured and sent by railways and the policy covered the risk of theft, the risk was to last only for three days after the arrival of the train at the destination, and no liability for the loss would attach unless notice is given within 10 days of the said risk to the Insurance Company. In such cases the onus of proving as to when the train arrived at the destination would be on the assured and that notice was also given as required before saddling the company with liability for loss. 74 When there is discrepancy as to the entry in receipt and the quantum of goods delivered, the burden is on the railway to explain the cause for such discrepancy. 75 When the weight of the goods mentioned in the receipt did not tally with act ual weight of the goods delivered to the railway and there was no admission by the railway of the actual weight, it was held that the railway is not liable for short delivery of goods. 76 If the railway did not adduce evidence negativing the allegation of misconduct or negligence on the part of the railway, it was held that negligence was established by inference. 77 In a suit against railway for damages for short delivery of goods when the plaintiff did not adduce evidence showing prima facie proof of negligence or mis-conduct on the part of the railway, it was held that there is no duty on the railway to call material witnesses to prove facts which may be within its special knowledge. The principle res ipsa loquitur is not applicable. 78 When the terms of the risk-note provide that it is for the plaintiff to prove mis-conduct, it was held that inference from non-disclosure by the railway cannot be drawn against him. 79 When the risk-note was not signed by the consignor of the goods then under Section 106, it is the bailee/railway to whom the goods have been entrusted that has to prove that the loss caused was not due to its negligence. 80 When a consignment was carried only to some extent by the defendant railway and from there upto the destination in Pakistan by the Pakistan Railway it was held that non-delivery at the destination could not be held to be within the knowledge of the defendant railway, under Section 106. 81 When misconduct was alleged on the part of the railway for the loss of goods, it was held that the delay in forwarding consignment can not be properly regarded as mis-conduct, unless delay is deliberately caused by the railway administration. 82 When the allegation of damage to goods was against a particular railway administration, the plaintiff must prove the same. And he cannot take advantage of Section 106 or Section 114 of Evidence Act, as such onus of proof does not shift. 83 When the damage was due to fire the consignor/bailor is to prove lack of sufficient care by the bailee. 84 A Steam-ship Company has to prove that the cargo was actually carried on the deck, in the case of accepted cargoes under Section 106. 85 In the case of bailment the plaintiff must prove bailment and the bailee must prove that he took care of the goods. And reliance under Section 106 cannot be placed. 86 70 Textiles and Yarn Pvt. Ltd. v. Indian National Steam Ship Co., AIR 1964 Cal 362; Indian Trade & General Insurance Co. Ltd. v. Union of India, AIR 1957 Cal 190 : 1966 All WR 651(SC) ; Union of India v. Kalinga Textiles Pvt. Ltd., AIR 1969 Bom 401; Sarada Mills Ltd. v. Union of India, AIR 1966 Mad 381; Sobharam Jokhiram v. Union of India, AIR 1970 Pat 182; Union of India v. Firm Munnalal Pasari & Sons, AIR 1971 MP 131. 71 Chandra Sekharam v. Union of India, AIR 1960 Ori 100; Asaram Gangaram v. Union of India, AIR 1957 Nag 59; Ram Ratan v. Union of India, (1958) 8 Raj 1156; G.G. of India in Council v. Jesraj Tirlokchand, AIR 1950 Assam 175; Qadir Salamat Ullah v. G.G. in Council, AIR 1951 All 438; Union of India v. Delhi Cloth & General Mills Co. Ltd., AIR 1964 Punj 147; Union of India v. Aluminium, (1972) 1 An LT 189; Works Co-Operative Factory Ltd. 72 Union of India v. Sheo Prasad Fulchand, AIR 1967 Pat 328; Sobharam Jokhiram v. Union of India, AIR 1970 Pat 182. 73 Union of India v. Ratilal Jadauji, AIR 1971 Cal 515. 74 New Asiatic Insurance Co. Ltd. v. Bihar State Co-operative Bank Ltd., AIR 1966 Pat 69. 75 Jugal Kishore v. Murugan Gas Supply Co., AIR 1973 Mad 331.

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76 South-Eastern Railway v. Satyanarayan, AIR 1961 Ori 141. 77 Union of India v. Sri Ram Richpal, AIR 1965 All 246. 78 Ram Pyari Devi v. Union of India, (1964) 14 Raj 811; See contra Rama Krishna v. Union of India, AIR 1960 Bom 344; B.B. & C.I. Railway v. Rajnagar Spinning Co. Ltd., AIR 1930 Bom 129; (in the Bombay cases it was held "misconduct" and "negligence" are different notions. Some kinds of negligence may amount to mis-conduct. When goods were carried during monsoon season at owners risk, the case is governed by Section 74-C. When goods were damaged due to rain water the principle of res-ipsa-loquitur may be applied to infer mis-conduct, and the railway has to prove that there was no mis-conduct). 79 Union of India v. Banshidhar Prasad, AIR 1956 Pat 68. 80 Balkishan v. Union of India, AIR 1956 Hyd 193; Jankidas Marwari v. G.G. in Council, AIR 1946 Pat 336; Secretary of State v. Kesho Prasad, AIR 1932 All 584. 81 Union of India v. Meghraj Agarwalla, AIR 1958 Cal 434. 82 Union of India v. Muralidhar Agarwalla, AIR 1951 Assam 173. 83 Kanyaka Parameshwari v. Union of India, AIR 1960 Ori 103; relying on Chandra Sekharam & Sons v. Union of India, AIR 1960 Ori 100; Darjeeling, Himalayan Railway Co. v. Jetmull Bhojraj, AIR 1956 Cal 390; Kannaiyalal Ram v. Union of India, AIR 1959 Pat 335; Firm Radhakishen Bhagwati v. Union of India, AIR 1959 Assam 98. 84 Calcutta Credit Corporation Ltd. v. His Highness Prince Peter of Greece, AIR 1964 Cal 374. 85 Scindia Steam Navigation Co. v. Ismain Lohmed Batatawala, AIR 1960 Bom 416. 86 Firm Radhakishen Bhagwati v. Union of India, AIR 1959 Assam 98.

15. NEGLIGENCE In case of rash and negligent driving, the bus turned turtle. It was held res ipsa loquitur (fact speaks for itself) would apply and the negligence on the part of the driver would be presumed. The best evidence against negligence would be of the driver himself under Section 106. 87 However, it was held that the maxim res ipsa loquitur loses its importance when all the evidence is tendered by both parties. If the plaintiff alleges negligence and gives particulars of it, it is on him to prove it. 88 In the case of fatal accidents if it suggests negligence, the defendant must prove lack of negligence.

89

In a suit for damages for negligence, plaintiff proved negligence on the part of the defendant, but the defendant suppressed all important materials in its possession. It was held that Section 106 or the doctrine of res ipso loquitur is attracted. 90 Where the evidence showed that the combustible material was stored by the tenant in the premises admittedly in his possession regarding which sufficient warning was given by the landlord and tenant also did not take any steps at the time of fire to prevent it by reporting to the authorities concerned, the burden would shift on the tenant to prove that he was not negligent and not responsible for fire. 91 87 Mangli v. Krishna Bus Service Ltd., (1965) 67 Punj LR 1064; See also District Board Bhagalpur v. Province of Bihar, AIR 1954 Pat 529; Municipal Corporation of Delhi v. Sobhag Wanti, AIR 1960 Punj 300; (damages for loss of life due to collapse of building); Madhuri Chowdhuri v. Indian Air-lines, AIR 1962 Cal 544; Sushma Mitra v. M.P. State Road Transt. Corp., AIR 1974 MP 68. 88 Indian Airlines v. Madhuri Chowdhuri, AIR 1965 Cal 252; reversing Madhuri Chowdhuri v. Indian Airlines Corporation, AIR 1962 Cal 544. 89 Engineers Industrial v. C.H. Raju, (1974) 1 Mad LJ 37. 90 (1977) 2 Cal LJ 108. 91 M. Kuppusamy v. Viswanathan, 1998 AIHC 2856 (paras 12, 13 and 14) (Mad).

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16. MESNE PROFITS Initially, onus of proof regarding profits earned lies on the person accountable for mesne profits. 92 In cases of mesne profits the plaintiff would be entitled to get mesne profits calculated or arrived at on the basis of the prevailing rates or on the basis of what the person in occupation would have actually received, with ordinary diligence under Section 106, the burden of proving the amount act ually received will lie on the person who received the amount, but the burden of proving the profits that might have been received is on the person who claims it. 93 When the question of mesne profits is to be determined when the defendant claims that he made improvements, it is for him to prove how much amount he spent for improvements. And if the plaintiff alleges waste by the defendant, he has to prove the extent of the waste as the claim for waste would stand on the same footing as claim for mesne profits. 94 92 Ratanlal v. Girdhari Lal, AIR 1972 Del 11. 93 Mahant Narayana Dossjee v. Board of Trustees., AIR 1959 AP 64. Reversed on another rating point to payment of interest on merna pagi in N. Dasjee v. Tirupathi Devasthanan, AIR 1965 SC 1231; Ramakka v. Nagesham, AIR 1925 Mad 145; Kallynath Dutta v. Shew Bux Mohata, AIR 1950 Cal 87; Shaik Salma v. Shai Md. Abdul Kadar, AIR 1961 AP 428; R.S. Ramakrishna v. K. Rajagopal, AIR 1953 Mys 139; Md. Abdul Ghaffur v. Md. Samsuddin, AIR 1925 Mad 297; Girish Chunder Lahiri v. Sheshi Shikhareswar, (1900) 10 MLJ 356(PC) ; Dhanaraja Gerji v. Parthasarathy, AIR 1933 Mad 825. 94 K.C. Alexander v. Nair Service Society Ltd., AIR 1966 Ker 286.

17. CARRYING ILLICIT TIMBER Where a vehicle carrying illicit timber was confiscated by the authorised officer of the Deptt. of Forest, it was held that the onus was on the owner of the vehicle to prove to the satisfaction of the authorised officer that the vehicle was used in carrying timber without his or his agent's knowledge or connivance and that all reasonable and necessary precaution against such use had been taken. The owner had to prove this on the basis of sufficient material and not on the basis of mere assertion. He has to prove that he had no knowledge and had not connived as it was a matter within his knowledge. 1 1 State of W.B. v. Mahua Sarkar, (2008) 12 SCC 763, 767-68 (para 11).

18. LANDLORD AND TENANT The burden of proof regarding payment of rent lies on the tenant and liability regarding which is not discharged by mere oral allegation of payment without receipts and without satisfactory explanation for non-recourse to money order. 2 The amount spent on improvements is a fact within the special knowledge of the tenant who has to prove the same. 3 In a suit by the landlord for eviction of a residential building under the Delhi and Ajmer Rent-Control Act, it was held that the landlord must allege that the tenant has built a house or acquired vacant possession of a suitable residence. The onus to prove facts within the special knowledge of a party would be on him under Section 106. 4 When the landlord places material showing prima facie that the tenant created a sub-tenancy, it is for the tenant to show facts within his knowledge how the alleged sub-tenant occupied the premises and the nature of relationship between him and those occupying and if he does not prove the same the landlord is entitled for eviction. 5

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A tenant claiming exemption from eviction under Kerala Land Reforms Act of 1964, has to show that he is akudikidappukaran within the meaning of that Act. The burden cannot be placed on the landlord to show that the value of the building is such that the Act does not apply on the ground that he has special knowledge of its value. 6 2 Sukhanand v. IV Additional District Judge, Bulandshahr, AIR 1994 All 59 (paras 7 and 8). 3 Shripati Raoji v. Vishwanath, AIR 1955 Bom 457. 4 Niader Mal v. Ugar Sain Jain, AIR 1966 Punj 509; See also for similar type of cases : G.G. in Council v. Mahabi Ram, AIR 1952 All 891; Ramkrishna Ramnath Shop v. Union of India, AIR 1960 Bom 344; India Trade & General Insurance Co. Ltd. v. Union of India, AIR 1957 Cal 190; Freddy Fernandes v. PC Mehra, (1973) 1 Del 682. 5 Lalit Mohan v. Kesharao, 1963 MPLJ 269(Notes) ; Santoshi Lal v. Chandra Mohan, AIR 1956 MB 121; Ziaul Hasan v. Pannalal, AIR 1972 MP 209; Prabhu Dial v. Vijay Kumar, (1974) 76 Punj LR 642; Annakutty v. Padmavathy Amma, 1980 Ker LT 820; Rajkumar v. Harbanslal, AIR 1978 Punj 186. ; Gur Dayal Khanna v. Malti Devi, AIR 1993 All 90 (paras 12 and 13). 6 1969 Ker LR 782.

19. ELECTION LAWS Where a charge is made in an election petition that the election expenses did not show certain expenditure, it is for the petitioner to prove it, and the onus is not on the successful candidate and Section 106 has no application. 7 Where a successful candidate prior to the election published a bulletin alleging that his rival candidate/petitioner through his worker distributed or offered coats and blankets to the voters at a particular place or on a particular day, the petitioner adduced evidence to show that it was not possible for his worker to be present at a particular place on that particular date. It was held that the burden on the petitioner was discharged and the burden shifted on the successful candidate to dislodge the assertions. 8 In a petition to set aside an election on the ground of corrupt practices, the allegations must be established beyond reasonable doubt as the proceedings are of quasi-criminal character, and there is a presumption of innocence in favour of the respondent. 9 The age of a person in an election petition has to be determined not only on the basis of the materials placed on records but also upon taking into consideration the circumstances attending thereto. The initial burden to prove the allegations made in the election petition although was upon the election petitioner but for proving the facts which were within the special knowledge of the respondent, the burden was upon him in terms of this section. It is also trite that when both the parties have adduced evidence, the question of onus of proof becomes academic. 10 Furthermore, an admission on the part of a party to the lis shall be binding on him and in any event a presumption must be made that the same is taken to be established. 11 7 Kandaswami v. Adityan, AIR 1960 Mad 170. 8 Badri Prasad v. Satish Kumar Sharma, AIR 1964 Raj 184. 9 Razikram Choudhary v. J.S. Chauhan, AIR 1975 SC 667; Prasad Deb v. Bhanuganga Deb, AIR 1964 Ori 8; Sri Raj Raj Deb v. Gangadhar Mohapatra, AIR 1964 Ori 1. 10 Union of India v. Sugauli Sugar Works (P) Ltd., AIR 1976 SC 1414 : (1976) 3 SCC 32 (para 14) and Cox and Kings (Agents) Ltd. v. Their Workmen, AIR 1977 SC 1666 (para 36) as referred in Sushil Kumar v. Rakesh Kumar, AIR 2004 SC 230 (para 32) : (2003) 8 SCC 673. 11 Sushil Kumar v. Rakesh Kumar, AIR 2004 SC 230 (para 32) : (2003) 8 SCC 673.

20. MASTER & SERVANTS

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In the case of a servant charged with misappropriation of goods of his master, if the failure to account is due to an accidental loss, the facts being within the servant's knowledge, it is for him to explain the loss. 12 In a case for breach of contract of employment by the employer, the onus is on the employer to show that the employee ought reasonably to have taken certain mitigating steps and the existence or non-existence of other jobs is not a matter which could be said to be especially within the knowledge of the employee within the terms of Section 106. 13 In the case of reinstatement of workman and payment of back-wages, the facts about employment or non-employment or the efforts made or not made to secure alternative employment are within the special knowledge of the employee. 14 The negative burden of proof that he (the workman) remained unemployed during the interregnum period would be on him keeping in view the provisions contained in this Section of the Evidence Act. However, the burden to show that he was gainfully employed during the period was on the employer. 15 Whether a petitioner, a government servant, was included by the Director in the list of superseded persons sent to the Public Service Commission is a fact within the special knowledge of the Director. 16 In a case the services of the appellant were terminated by the Government on a certain ground and it was claimed that a prior show cause notice was given to him the service of which he denied. The Govt. could not produce any proof of service of the notice as the records had been weeded out. However, there was on records the explanation of the appellant submitted by him before the termination of his service. It was held that the burden of proving the service of notice was discharged. 17

In a suit to declare the order of demotion and dismissal as illegal and ultra vires , the burden is on the plaintiff to prove the same and in such cases Section 102, applies but not Section 106. 18 12 Krishan Kumar v. Union of India, AIR 1959 SC 1390. 13 Hiranandini v. Bharat Barell & Drum Mafg. Co., AIR 1969 Bom 373. 14 Sadanand Patankar v. New Prabhat Mills, No. 2 Bombay, 1975 Lab. I.C. 457(Bom) . See also U.P. State Brassware Corporation Ltd. v. Udai Narain Pandey, (2006) 1 SCC 479, 495 (para 61) : AIR 2006 SC 586; Municipal Council, Sujanpur v. Surinder Kumar, (2006) 5 SCC 173 : (2006) 11 JT 226; Manager, Reserve Bank of India v. S. Mani, (2005) 5 SCC 100; Talwara Cooperative Credit and Service Society Limited v. Sushil Kumar, (2008) 9 SCC 486, 491 (para 13) : (2008) 13 Scale 24; Managing Director, Balasaheb Desai Sahakari S.K. Limited v. Kashinath Ganapati Kambale, (2009) 2 SCC 288, 292 (paras 13 and 14). 15 Novartis India Limited v. State of W.B., (2009) 3 SCC 124 (paras 21 and 37). 16 Mareshwar Lal Joshi v. State of Rajasthan, 1971 Raj LW 140. 17 Sanjay Kumar Bajpai v. Union of India, (1997) 10 SCC 312. 18 State of Bihar v. Shiva Bhikshuk, AIR 1960 Pat 162; overruling Ramesh Chandra v. H.D. Jain College, AIR 1957 Pat 145.

21. TAX-LAWS In the case of an assessee partner of a firm a credit-entry of deposit made by his wife appeared in the account books of the firm and there was a similar deposit on the same date made by the wife of another partner, it was held that the source from which money was realised by the wife need not be proved by the assessee; that the department cannot hold that the other deposit made by another partner's wife was the amount of undisclosed income of the assessee. 19 The burden is on the assessee to explain the true nature and source of the income. 20 The assessee has to prove that a particular income has its origin in the capital amount. 21 Where remittances were made from non-taxable territory and the Income Tax Department established the source, the presumption that remittances are out of accumulated profits arises. Regarding the question as to where from remittances are made being a matter within the special knowledge of the assessee, he has to prove that those remittances are from source other than accumulated profits. 22 When the assessee fails to explain the nature of cash credit entry, the income tax officer may presume that it falls under income from other sources. 23 The burden of establishing that a disputed amount is not

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assessee's income lies on the assessee and not on the department. 24 When an assessee claims exemption he should give detailed facts entitling him to exemption as under Section 106 when any fact is specially within the knowledge of any person, the burden of proving that fact is upon him. 25 Assessability at single point and non-assessability at other points is for the assessor to prove.

26

In a suit for recovery of an amount of reward announced by the Board of Direct Taxes, it was held that the burden lies on the defendant to prove realisation of extra taxes and if the defendants suppressed assessment record regarding realisation of extra taxes which it has to do, under Section 106 a presumption can be drawn against the defendant under Section 114(g). 27 How much amount was expended from out of the licence fee would be within the knowledge of the Zilla Parishad and is has to prove the same. 28 A person who collects Tehbazari dues and fails to account for the collections has to prove how he gave discharge of those amounts under Section 106. 29 19 Tolaram Daga v. Commer., of I.T., 1968 Assam 1. 20 Har Prasad v. Commr. of I.T., AIR 1957 All 746. 21 Raghava Reddy v. Commissioner of I.T., AIR 1957 A.P. 926; D.C. Auddy & Bros. v. Commr. of I.T., AIR 1956 Cal 295. 22 B.R. Bamasi v. CIT, Bombay, (1972) 83 ITR 223 relying on, CIT v. Jankidas Kaluram, 17 ITR 406. 23 C.I.T. v. Krishna Mining Co., (1972) 83 ITR 860. 24 Munnallal v. Commer. of I.T., AIR 1957 Nag 73. 25 Burhanpur Tapti Mills Ltd. v. State of M.P., AIR 1962 M.P. 225; relying on Thungabhadra Industries Ltd. v. Commercial Tax-Officer, AIR 1955 AP 257; I. & Wire Products Ltd. v. Supt. of Commr. Taxes, AIR 1957 Pat 112. 26 B.V. Bhatta v. State, (1965) 2 Mad 623. 27 Narayan Chandro Chakra Borty v. Union of India, 1980 Tax LR 509 : 84 Cal WN 293. 28 Zilla Parishad Aligarh v. Ami Chand, 1972 CrLJ 530(All) . 29 Ishwar Dayal v. Municipal Board , Rath, AIR 1980 All 143.

22. HUSBAND AND WIFE In an application for maintenance by a wife, the onus lies on the husband to disclose his income under Section 106. 30 In a suit for declaration that the marriage was invalid on the ground of non-performance of essential formalities, the burden is on the plaintiff to prove the non-performance of such formalities which would invalidate the marriage, as it would be reasonable and proper to presume that the qualified purohit attached to the temple had complied with all the ceremonial formalities for a valid Hindu marriage. 31 As to the facts relating to the pregnancy of a woman and the birth of her child, they would be within her knowledge and so she has to prove the same. 32 When cruelty was alleged as a ground for judicial separation the petitioner has to prove the same. 33 In a case of homicidal death of a married woman, her body was found in a well two days after she left her home. Inquiry by the witness who met her brother as to why the deceased was not with him showed that the witness knew that the deceased had gone to her parents house and there being no previous incident of any quarrel or assault on her, it could not be presumed that the factum of homicidal death was within special knowledge of the accused persons and no burden lay on them to explain as to how the victim met with homicidal death. 34 30 Chitra Sengupta v. Dhruba Jyoti, AIR 1988 Cal 98. See also Anil Kumar v. Laxmi Devi, AIR 1994 NOC 61(Raj) .

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31 G.V. Chalapathi Raw v. Potti Lakshmi Kantham, (1977) 2 An WR 32. 32 Nand Kishwar Bux v. Gopal Bux Rai, AIR 1940 PC 93. 33 Tushar Kana (Smt.) v. Bhowani Prosad Roy, (1969) 73 Cal WN 143. 34 Narayan Tatyaba Gavhane v. State of Maharashtra, 2006 CrLJ 434(NOC) (Bom) : 2006 (4) AIR Bom R 518.

23. MISCELLANEOUS Where A hires a bicycle from B and alleges that he has lost it, it is A that should prove as a fact which is purely within his knowledge and B cannot be expected to know how it was lost and under what circumstances. 35 The question as to when the petitioner migrated to Pakistan is a matter which is especially within his knowledge and so he must prove it. And the burden is not on the government to prove it. 36 The burden of proof as to citizenship would be upon the proceedee as he would be possessing the necessary documents to show that he is a citizen of India. (The instant case involved the matter of illegal migrants into the State of Assam). The evidence required for deciding as to whether a person is or is not a foreigner is necessarily within the personal knowledge of the person concerned. 37 In cases of acquisition of land for development, for industrial and residential purposes, the onus of proving facts and circumstances lying specially within the knowledge of the official who formed the opinion resulting in the notification issued rests upon that official. 38 When the question is whether a Sub-Divisional Controller had authority to enter into a contract on behalf of the Government, it is for the Government to produce the file containing the relevant orders as such fact is especially within the knowledge of the Government. 39 Where the plaintiff has personally executed a deed of assignment which he seeks to be set aside on the ground of it being a Benami deed he cannot keep himself away from the witness box, as he has to prove the facts which are within his knowledge to show that the deed is not act ually what it purports to be. 40 When damages are claimed for violation of Trade Marks Act , it is for the defendants to produce the account books to show the amounts received which matter is entirely within their special and exclusive knowledge.41 In a suit for recovering damages against the owners of a vessel, there was allegation by the plaintiff that the owner of the vessel and the charterers of another vessel were one and the same entity and the vessel was owned by the named individual. The defendant owners produced no document to disclose shareholding pattern of either the owner or the shareholding of the majority shareholder which must be considered to be within the special knowledge of the owners and they were under obligation under Section 106 to disclose the name of the majority shareholder. 42 In a case under a Sale of Goods Act , the person claiming the refund has to prove that he has suffered in loss or injury because it is in his special or exclusive knowledge.43 It is for the plaintiff to prove that his suit is within time when time begins to run from the date of plaintiff's knowledge of a particular event, since the knowledge of that event can only be within the knowledge of the plaintiff and no one else. 44 Where a person has taken an elephant on hire the burden of proving the number of days for which the elephant has worked is on him since that fact is particularly within his knowledge. 45 Where infringement of a patent is alleged the defendant is to prove that his process of manufacture was different as such matter would be specially within his knowledge. 46 Where blocks were recovered from the possession of a printer which were identical or almost identical with the genuine trade mark, it is for the printer to prove that he had no knowledge of the existence of the original trade-mark. 47 Where there was failure to observe the terms as to accounts in the licence issued in a prescribed form, the onus is on the licensee to prove that he was prevented by reasonable cause to maintain accounts correctly. 48 Where a party claimed to be an agriculturist within the meaning of Section 2(2) of U.P. Agriculturists Relief Act, it was held that the onus of proving that under the proviso to Section 2(2) he is deprived of the status has to be proved by the opposite party. 49 In a suit for partition of joint family property mere mention of an arbitration

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agreement and award does not bar the suit. It is necessary for the defendant to plead necessary facts in support his plea to bar the suit. 50 35 Samaraj v. Kuppaswamy, AIR 1957 Mys 55. 36 Masud Khan v. State of U.P., AIR 1974 SC 28. 37 Sarbananda Sonowal (II) v. Union of India, (2007) 1 SCC 174, (paras 47 and 61) : (2007) 1 SLT 648, following Sarbananda Sonowal (I) v. Union of India., (2005) 5 SCC 665. 38 Narayan Govind Gavate v. State of Maharashtra, AIR 1977 SC 183; Biharilal v. Union of India, AIR 1979 Del 84. 39 Raipada Pramanaik v. State, AIR 1977 Cal 7. 40 Devji Shivaji v. Karsandas Ramji, AIR 1954 Pat 280; following Gurbakhsh Singh v. Gurdial Singh, AIR 1927 PC 230. 41 Firm Bhagwan Dass Ramjilal v. Watkins Mayor & Co., AIR 1956 Punj 17. 42 Alexandros Dryron S.A. v. Owners and Parties, M.Y. PRAPTI, AIR 1998 Cal 142 (para 12). 43 Mafatlal Industries v. Union of India, (1997) 5 SCC 536. 44 Bakhshish Singh v. Inder Singh, AIR 1953 Pepsu 74. 45 Achutan v. Govindan Yalia, (1963) 7 Ker LJ 1079. 46 F.H. & B. Corpn. v. Unichem Laboratories, AIR 1969 Bom 255. 47 1970 All WR (HC) 332. 48 Mangal Singh v. State of Bihar, AIR 1968 Pat 37. 49 Kishon Chand v. Rambabu, AIR 1965 All 65(FB) . 50 Manmati v. Mohan, AIR 1969 MP 7; relying on Abdul Quddoos v. Abdul Gani, AIR 1954 Nag 332; Md. Yusuf v. Hazi Md. Hussain, AIR 1964 Mad 1; Bansidhar v. E.B. Sukhia, AIR 1957 MP 24.

24. FACTS WITHIN THE KNOWLEDGE OF A PARTY Civil proceeding .--Under the Slum Areas (Improvement and Clearance Act) 1956, when the eviction petition is filed, income of the tenant is a question to be considered. Income of the tenant, is a fact especially within the knowledge of the tenant and so he has to prove the same under Section 106, showing that he has no sufficient means for securing alternative accommodation. 51 In a case, the property of a partnership firm was attached for recovery of bank loan. The wives of two of the partners claimed to have shares in the property but they did not enter the witness box or adduce evidence to that effect and were represented by a power-of-attorney holder. The Apex Court held that the powerof-attorney holder could not represent them in the witness box on their behalf as they had to show their own independent income and contribution in the purchase of property which was a matter of their personal knowledge and as such only they could deposed and be cross-examined. 52 Special facts such as the competence of a party to espouse a cause under the U.P. Industrial Disputes Act 1947, are to be proved underSection 106 by the espousing party. 53 Where a State Government passed an order under delegated authority with the prior concurrence of the Central Government and when that order is challenged, it was held that whether there was concurrence or not was within the special knowledge of the State Government, and so it has to be proved under Section 106. 54 When a premises is let and a stranger other than the lessee is in possession the burden is on the lessee to show that he is not a sub-lessee but a licensee as it is within his special means of knowledge. 55 In the instant case the question to be decided was whether a person belonged to scheduled caste. He had filed nomination paper to contest election from a reserved constituency. He claimed that his father belonging to backward caste had married his mother who belong to scheduled caste and as per a circular of the Govt. of Bihar the caste of the mother was to be taken as the caste of the child. His

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mother resided in another village. It was held that the stated fact, being in his special knowledge, must have been proved by him by adducing best evidence i.e. the evidence of his father and his mother who were alive. 56 The general rule in the leading democracies of the world is that where a person claims to be a citizen of a particular country, the burden is upon him to prove that he is a citizen of that country. (para 24) There is good and sound reason for placing the burden of proof upon the person concerned who asserts to be a citizen of a particular country. In order to establish one's citizenship, normally he may be required to give evidence of (i) his date of birth (ii) place of birth (iii) name of his parents (iv) their place of birth and citizenship. Sometimes the place of birth of his grandparents may also be relevant like under Sections 6-A(1)(d) of the Citizenship Act . All these facts would necessarily be within the personal knowledge of the person concerned and not of the authorities of the State. After he has given evidence on these points, the State authorities can verify the facts and can then lead evidence in rebuttal, if necessary. If the State authorities dispute the claim of citizenship by a person and assert that he is a foreigner, it will not only be difficult but almost impossible for them to first lead evidence on the aforesaid points. This is in accordance with the underlying policy ofSection 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. (para 26) The legislature engrafted special rule in Section 106 of the Evidence Act to meet certain exceptional cases in which not only it would be impossible but disproportionately difficult for the prosecution to establish such facts which are specially and exceptionally within the exclusive knowledge of the accused and which he could prove without difficulty or inconvenience. (para 29) 57 (i) Criminal proceeding--defence .-- Where the dead body of the victim of rape was found on the cot inside the house of the accused, the burden was on him to explain how the dead body happened to be there. 58 Where the dead body and the severed head of the victim were found in the field and near the tubewell of the accused which were in the vicinity of his ' dera ' (dwelling place) in the field, and he could give no explanation of it except making a bold denial. It being a factor in the special knowledge of the accused, though not sufficient to fasten the guilt on him, it will certainly be a relevant factor while considering totality of the circumstances. 59 The Court would be justified in appropriate cases to draw the presumption that the abductors themselves could be the killers of the abducted victim, unless they explained otherwise as to what they did with the prey. 60 Where a housewife died of drowning in the well in the courtyard of the house of the in-laws and at the time of the incident only the accused persons were in the house, burden was on them to prove what happened on that night which resulted in her death. 61 Where the accused husband alone was present with the deceased at the time and place of offence and he absconded soon after the incident, he was bound to explain the fact, it being in his special knowledge and in the absence of any explanation the only possible inference would be that he participated in the Act. 62 Where unnatural death of the daughter-in-law had occurred within the house of the in-laws and the plea of in-laws was that she died due to burn injuries which were caused due to earthen lamp which she carried with her in the toilet but medical evidence showed that there were ante-mortem injuries on body of the deceased and her death was due to strangulation, the plea of accused father-in-law that at the relevant time he had gone to jungle to satisfy the naturals call was belied by the fact that there was a toilet in the house, and there was no inconsistency in prosecution evidence, it was held that the defence has failed to discharge its burden to prove the circumstances in which the deceased had died in view of Section 106 of the Evidence Act . 63 Where the appellant was charged for purchasing paddy from a peasant on payment of forged currency notes and offered no explanation as to wherefrom he got them, it was held that his silence was a telling circumstance which would weigh against him in the consideration of the prosecution evidence. 64 Where it was undisputed that the gunshot injuries had been sustained by the two deceased from the licensed gun belonging to the accused, the defence ought to have explained satisfactorily the circumstances in which the injuries were caused. 65 Where possession of the contraband by the accused was established, the accused, claiming that it was not a conscious possession, had to establish it, because how he came to be in possession, was within his special knowledge. 66

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Where in a case of abduction-cum-murder, the prosecution itself proceeded on the footing that there were eye-witnesses to the fact of murder, the rule of burden of proof under this section, viz. the fact that, what happened to the victim after his abduction, was within the knowledge of the accused abductors, would not apply. 67 (ii) Prosecution .-- Where firing took place from both the sides, it was not necessary nor was it possible for the prosecution to explain how the holes were caused in the coat of the accused and by what process one bullet was tucked in the collar of his coat. It is also not possible for the prosecution to account for each and every bullet fired or to account for empties with mathematical precision or to explain each and every injury suffered by the witnesses. 68 It is not possible to accept the plea that the prosecution has failed to place any material to show as to why the accused would make a confessional statement. Acceptance of such a plea would necessarily mean putting of an almost impossible burden on the prosecution to show something which is within the exclusive knowledge of the accused. It cannot be equated with requiring the prosecution to show motive for a crime. One cannot normally see into the mind of another. 69 The question raised by the High Court as to why somebody would choose daybreak time to commit murder, being a hypothetical question, its answer also would be hypothetical. What is in the mind of a person and the reason for doing a thing is an aspect within the special knowledge of that person (here accused). The prosecution is not supposed to meet every hypothetical question raised by the defence. If the prosecution is required to meet every fanciful plea, it would be a clear case of deflecting the course of justice. If the crime is to be punished in a glossemic way, niceties must yield to realistic appraisal. Law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. 70 Where the deceased-wife died an unnatural death in the matrimonial home of the deceased and the medical evidence ruled out the theory of suicidal death by herself, the accused-husband was supposed to explain as to how and in what manner his wife met her unfortunate death living with him in his house. 71 Where the wife died of poisoning at night and the accused, husband who was working as a night guard in a school, took the plea of alibi and there was no evidence to show that he had left his work place in the night and had come home at night and the only other person present in the house was their daughter who was not examined, it was held that Section 106 of the Evidence Act did not apply and onus did not shift on the accused to explain how the incident had occurred. 72 In a case under Prevention of Corruption Act , 1988 underSection 13(1)(e), the accused was charged for accumulating wealth beyond his "known sources of income". It was held that the prosecution cannot in the very nature of things, he expected to know the affairs of the accused. Those will be matters "specially within the knowledge" of the accused within the meaning of this section of the Evidence Act. 73 In a accident claim of compensation case, the burden to prove that the driver of the vehicle involved in the accident had a valid driving licence, lies on the owner of the vehicle and not on the insurer and the said burden never can be shifted to the insurance company as it cannot be asked to discharge a negative burden with regard to a fact which is especially within the knowledge of the driver who is an employee of the owner of the vehicle. 74 Similarly, where in a motor accident case the appellant owner contended that someone else was driving the vehicle when the accident occurred, this fact was in his special knowledge and he had to discharge the burden of proving the same. 75 Where the question in dispute is relating to the service of the notice sent through registered letter carrying correct postal address of the addressee on its envelop, it is the addressee to prove the fact that he was absent on relevant date and time when the postman had approached him to serve the notice as it would be within his knowledge alone. 76 51 Rajindra Kumar Jain v. H.C. Arora, AIR 1974 Del 221; Mandir Dass Jain v. P.R. Varshneya, 1973 Del 71. 52 Janki Vashdeo Bhojwani v. Indusind Bank Ltd., (2005) 2 SCC 217, 222 (para 12) : AIR 2005 SC 439. 53 (1972) 25 Fac LR 262 (All). 54 Foremost Dairies Ltd. v. State of Rajasthan, AIR 1986 Raj 116. 55 Gur Dayal Khanna v. Malti Devi, AIR 1993 All 90.

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56 Punit Rai v. Dinesh Choudhary, (2003) 8 SCC 204 (para 7) : AIR 2003 SC 4355. See also Balwan Singh v. Lakshmi Narain, AIR 1960 SC 770. 57 Sarbananda Sonawal v. Union of India, (2005) 5 SCC 665, 694-697 (paras 24-31) : AIR 2005 SC 2920, relying on Sanjay v. State (NCT of Delhi), (2001) 3 SCC 190 : AIR 2001 SC 979 : 2001 CrLJ 1231 and Ezhil v. State of T.N., (2002) 9 SCC 189 : AIR 2002 SC 2017 and approving R. v. Oliver, (1943) 2 All ER 800 : 1944 KB 68(CA) ; R. v. Turner, (1816) 5 M&S 204 : 14 Digest 430 : (1814)-23) All ER Rep 713 : 105 ER 1026; Williams v. Russel, (1993) 149 LT 190. 58 State of A.P. v. Gangula Satya Murthy, AIR 1997 SC 1588 : 1997 CrLJ 774. 59 State of Punjab v. Karnail Singh, AIR 2003 SC 3609 (para 7) : (2003) 11 SCC 271 : 2003 CrLJ 3892. 60 State of W.B. v. Mir Mohd. Omar, 2000 AIR SCW 3230 : (2000) 8 SCC 382, followed in Sucha Singh v. State of Punjab, 2001 CrLJ 1734 (paras 15, 19-22) (SC) : AIR 2001 SC 1436. See also Ram Gulam Chaudhary v. State of Bihar, 2001 CrLJ 4632 (paras 23 and 24) (SC) : AIR 2001 SC 2842; State of Rajasthan v. Laxman Singh, (2002) 10 SCC 65 (para 6); State of M.P. v. Lattora, (2003) 11 SCC 761 (paras 4 and 5) : 2004 SCC 1195(Cri) ; Trimukh Marot Kirkan v. State of Maharashtra, (2006) 10 SCC 681, 690-91 (para 22) : 2007 CrLJ 20; Harbans Singh v. State(Govt. of NCT of Delhi), (2007) 12 SCC 535, 539 (para 13) : (2007) 2 Crime 421; Badshah v. State of U.P., (2008) 3 SCC 681, 684-86 (para 18-22) : (2008) 2 JT 316; Durga Prasad Sarkar v. State of W.B., 2008 CrLJ 4218, 4220 (para 10) (Cal); Lakshmana Nayaka v. Nunjungud Rural Police, Bangalore, 2008 CrLJ 4451, 4454-55 (para 8) (Kant). 61 Balram Prasad Agrawal v. State of Bihar, AIR 1997 SC 1830 : 1997 CrLJ 1640. See also Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10 SCC 681, 690-91 (para 15) : 2007 CrLJ 20; Harishankar Gupta v. State of Chattisgarh, 2007 CrLJ 1009(Chh) ; State of Goa v. Francisco Tony Colaco, 2007 CrLJ 444(NOC) (Bom) : 2007 (2) AIR Bom R (DB) 786; State of Karanataka v. Chowdegowda, 2007 CrLJ 2812, 2821 (para 29) (Kant); State v. SatishShetty, 2008 CrLJ 2490, 2504-05 (para 41) (Kant); Madanayya Ramayya Lenkala v. State of Maharashtra, 2008 Cri. LJ 1161(NOC) (Bom) : 2008 (4) AIR Bom R 629 (DB); Gajanan Gawade v. State of Maharashtra, 2009 CrLJ 85(NOC) (Bom) : 2008 (6) AIR Bom R 78; State of Maharashtra v. Bhausaheb Eknath Pawar, 2009 CrLJ 87(NOC) (Bom) : 2008 (6) AIR Bom R 156; Prashant Mahadeo Chavan v. State of Maharashtra, 2009 CrLJ 90(NOC) (Bom) : 2008 (6) AIR Bom R 404 (DB); Ujjagar Singh v. State of Punjab, (2007) 13 SCC 90, 100-01 (para 21); State of Rajasthan v. Jaggu Ram, (2008) 12 SCC 51 (para 27-29). 62 Shunmugasundaram v. State, 1997 CrLJ 499(Mad) . The Court referred to Shambhu Nath Mehra v. State of Ajmer, AIR 1956 SC 404 : 1956 CrLJ 794. See also Rajammal v. State, 1993 CrLJ 3029 (para 46) (Mad); Namdeo Satyagonda Patil v. State of Maharashtra, 1994 CrLJ 3493 (para 24) (Bom); Ahluvaliya v. State, 1995 CrLJ 3511 (para 24) (Mad); National Insurance Co. Ltd. v. Om Prakash Poddar, AIR 1993 Cal 26 (para 9); Babu v. Babu, (2003) 7 SCC 37 (paras 14 and 18); State of Maharashtra v. Shivaji Anandrao Chede, 2002 CrLJ 4198, 4211, (para 31) (Bom) : 2002 (4) Bom LR 146 : 2002 (3) Mah LR 482; Ramchandran v. State of Kerala, 2005 CrLJ 1843, 1848 (para 9) (Ker); Pushpa Devi v. State of U.P., 2005 CrLJ 1948, 1951 (para 6) (All) : 2005 All LJ 704. 63 Garibi v. State of U.P., 2003 CrLJ 671, 673 (paras 8, 9 & 11) (All) : 2002 All LJ 2724 : (2002) 45 All Cr C 1094 : 2002 (3) All Cr R 2431. See also State of Rajasthan v. Jaggu Ram, 2008 CrLJ 1039. 64 Ponnusamy v. State, 1997 SCC 217(Cri) . Accused found in possession of ornaments of deceased victim of rape, burden on him to explain, Ganesh Lal v. State of Maharashtra, (2002) 1 SCC 731 (para 15) : 2002 CrLJ 967; articles of deceased in possession of accused, Ezhil v. State of T.N., (2002) 9 SCC 189 (para 13) : AIR 2002 SC 2017 : 2002 CrLJ 2799; Thavaraj Pandian v. State, 2003 CrLJ 2642, 2648, 2649 (paras 30, 37) (Mad) : 2003 (2) Cur Cr R 54 ; 2003 (1) Mad LW (Cri) 413. 65 State of Haryana v. Ram Sarup, (2002) 7 SCC 250 (para 10) : AIR 2002 SC 3114. 66 Madan Lal v. State of H.P., (2003) 7 SCC 465 (para 26); See also Durga Prasad Gupta v. State of Rajasthan, (2003) 12 SCC 257 (para 27). 67 Murlidhar v. State of Rajasthan, AIR 2005 SC 2345 (para 23) : (2005) 11 SCC 133 : 2005 CrLJ 2608, relied on in Hanuman Kisanrao Kadam v. The State of Maharashtra, 2006 CrLJ 135(NOC) (Bom) : 2006 (2) AIR Bom R 177 (DB). 68 Ravindra Shantaram Sawant v. State of Maharashtra, (2002) 5 SCC 604 (para 52-56) : AIR 2002 SC 2461 : 2002 CrLJ 3239. 69 Devender Pal Singh v. State of NCT of Delhi, (2002) 5 SCC 234 (para 56) : AIR 2002 SC 1661 : 2002 CrLJ 2034. 70 State of Punjab v. Phola Singh, (2003) 11 SCC 58 (para 14) : AIR 2003 SC 4407 : 2003 CrLJ 5010. 71 Nirmal Singh v. State, 2006 CrLJ 449, 456 (para 32) (Uttar). 72 Nemai Dey v. State of W.B., 2009 CrLJ 122, 124-25 (para 17 and 18).

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73 State of M.P. v. Awadh Kishore Gupta, (2004) 1 SCC 691, 697 (para 5) : AIR 2004 SC 517 : 2004 CrLJ 598. 74 National Insurance Co. Ltd. v. Brij Pal Singh, 2003 AIHC 1841, 1848 (para 25) (All). 75 Bhuwan Singh v. Oriental Insurance Company Limited, (2009) 5 SCC 136, 140 (paras 16 and 18). 76 Malanbai Ratnaparkhi v. Govind R. Motade, 2002 CrLJ 1188, 1192 (para 7) (Bom) : 2002 (4) All CrLR 909.

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Ratanlal & Dhirajlal: Law of Evidence, Updated 23rd Edition/THE INDIAN EVIDENCE ACT (ACT 1 OF 1872)/PART III PRODUCTION AND EFFECT OF EVIDENCE/CHAPTER VII THE BURDEN OF PROOF/S. 107.

CHAPTER VII THE BURDEN OF PROOF S. 107. Burden of proving fact especially within knowledge. When the question is whether a man is alive or dead, and it is shown that he was alive within thirty years, the burden of proving that he is dead is on the person who affirms it.

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Ratanlal & Dhirajlal: Law of Evidence, Updated 23rd Edition/THE INDIAN EVIDENCE ACT (ACT 1 OF 1872)/PART III PRODUCTION AND EFFECT OF EVIDENCE/CHAPTER VII THE BURDEN OF PROOF/S. 108.

CHAPTER VII THE BURDEN OF PROOF S. 108. Burden of proving that a person is alive who has not been heard of for seven years. Provided that when the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it. 1. PRINCIPLE AND SCOPE

H ALSBURY states (4th Edn., Vol. 17, page 85): "There is generally no presumption of law by which the fact that a person was alive or dead on a given date can be established but the question must be decided on the facts of the particular case. 77 This section provides that if it appears that a person, whose present existence is in question, was alive within thirty years and nothing whatever appears to suggest the probability of his being dead the court is bound to regard the fact of his still being alive as proved. Section 107 is almost similar to illustration (d) of Section 114 which says that a thing or state of things which has been shown to be in existence within a period shorter than that within which such things or state of things usually ceases to exist is still in existence. Illustration to Section 114 deals with the presumption of continuance of a thing or state of things, whereas this section deals with the presumption of continuance of life. Sections 107 and 108 must be read together because the latter is only a proviso to the rule contained in the former and both constitute one rule when so read together. 78 In the scheme of Evidence Act, though Ss. 107 and 108 are drafted as two sections, in effect Section 108 is an exception or a proviso to the rule enacted in Section 107. 79 Under Section 107, where there is a question whether a man is alive or dead, if it is shown that he was alive within 30 years the burden that he is dead is on the person who asserts it. Thus the section deals with a presumption of continuance of life, whereas under Section 108, if it is proved that person as not heard of for seven years by such of those persons who would naturally have heard of him if he was alive, then the burden of proving that he is alive is shifted to the person who asserts it. Thus under Section 108, there is a presumption of death, once it is proved that the person was not heard of for seven years. That section is a proviso to Section 107 is made clear by the opening words "provided that". Where a person is alive within 30 years the burden is on the person claiming that he is dead to prove the same. If he is not heard of for 7 years the burden is on the person who claims that he is alive. 80 Where all the witnesses deposed that a certain woman had been living with the defendant for the last 40 years and the defendant himself admitted that he had not seen her husband for the lost 35-40 years, it would be presumed that her husband was dead. 81

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In one case the Supreme Court observed that in view of the fact that one Sardul Singh was alive on May 24, 1960, it shall be presumed that he was not dead on May 24, 1970. As the appellant had alleged that Sardul Singh was dead on that date, the onus to prove that fact shall be on him. 82 But as soon as anything appears which suggests the probability of a person being dead, the presumption disappears, and the question has to be determined on the balance of proof, Markby, 83. Where a person was not heard of for many years previously but was alive on the date of filing of the suit and impleaded as a defendant, the question of presumption of death does not arise. 83 Section 108 of the Evidence Act applies where death of a person is in issue and not in all the situations. This section has no application in respect of a person who absconds from justice or evades trial or is otherwise charged for the commission of a grave offence. Death can not be presumed for the purpose of the workmen's Compensation Act in the case of a workman against whom criminal case was pending and the court had declared him a proclaimed offender. 84 77 In so far as old cases speak of presumption of continuance of life as if it were a presumption of law, they are not consistent with the modern authorities. For such cases, see Wilson v. Hudges, (1803) 2 East 12; Napaan v. Das Hkaught, (1837) 2 M&W 894; Lapslcy v. Grierson, (1848) 1 HL cas 498 at 595; R v. Willshire, (1880) 6 QBD 336 CCR; R v. Jones, (1883) 11 QBD 118, CCR; R v. Lumley, (1869) LR 1 CCR 196; Re Phene's Trust, (1870) 5 Ch 139; In re : Aldersey, Gibson v. Hall, (1905) 2 Ch 181; MocDarmaid v. A--G, p. 232 (1950) 1 All ER 497; Chard v. Chard, (1955) 3 All ER 721. 78 State of Punjab v. Bachna Singh, ILR (1956) Pun 1232. 79 L.I.C. of India v. Anuradha, AIR 2004 SC 2070 (para 14). 80 S.N. Shah v. Regional Commissioner Employees Provident Fund, (1993) 1 MLJ 328; Indirani Ammal v. E. Chandra, (1993) 1 MLJ 339. See also Nagalakshmi v. Thirugnanasambandam, AIR 1995 Mad 120 (paras 13, 15 and 16); Bhanumati Dayaram Mhatre v. Life Insurance Corporation of India, AIR 2008 Bom 196, 197-98 (para 4). 81 Karansingh v. Sitaram, AIR 2005 MP 145, 147 (para 10). Abducted not been heard of for last 27 years, premumed to be dead, Badshal v. State of U.P., (2008) 3 SCC 681, 684 (para 15). 82 Surjit Kumar v. Jhujhar Singh, AIR 1980 SC 274. 83 Sirla Appalaswamy v. Pattivada Appallamma, 1997 AIHC 2259 (para 5) (Ori). 84 Oriental Insurance Company Limited v. Sorumai Gogoi, (2008) 4 SCC 572, 577-78 (paras 17 and 18) : (2008) 2 JT 613.

2. PRESUMPTION REBUTTABLE In either case (Sections 107 & 108) the presumption is rebuttable. The presumption embodied in Section 108 is by way of a proviso to Section 107; if two sections are read together, it would be evident that it would be erroneous to seek to apply both Sections 107 and 108 to one and the same case and at the same time. Before a presumption under Section 108 is raised, it has to be found by making an appropriate enquiry that the person has not been heard for 7 years by those who ought to have heard of him; in that enquiry it is permissible to show that the allegation that the person has not been heard of for over 7 years is not true and that there is evidence to show that he is alive or has been heard of within the period; if it is proved that the person has been heard within 7 years it is obvious then that the presumption of death, under Section 108 can not be raised. 85 If it is shown that a man was alive within 30 years, the presumption under Section 107 is that he is alive but the presumption is rebuttable but then the burden shifts to the person who asserts that the man is dead. 86 Where the allegation was that the defendant died before passing a decree, it was held that the onus is on the plaintiff to prove that the defendant was alive on the date of passing of the decree. 87 The presumption under Section 107 does not apply to petitions for declaration of nullity of the marriage by reason of Sections 7 and 10(4) of the Divorse Act. 88

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If a person has not been heard of for seven years, there is a presumption of law that he is dead under Section 10889 and the burden of proving that he is alive is shifted to the otherside. 90 Under Section 108, it is not required that the Court should hold that a person is dead after the expiration of seven years but it only provides shifting of burden to the person who asserts that the person is alive. 91 In a matter under the Rent Control Act on application of the tenant's mother stating that her son was not heard of for more than 13 years and hence he be presumed to be dead and she be impleaded as a party, it was held that a separate suit for declaration of the original tenant to be dead is not necessary as Section 108 does not prescribe any procedure. 92 Where on an application to implead the heirs of a party to a suit presumed to be dead on the ground of not being heard of for seven years, nothing was brought on record to show that the said party was no more, it was held that the man not heard of for seven years can be deemed to have met with civil death and not the death occasioned on his last breath and the ingredients of Sections 107 and 108 cannot be taken advantage of. 93 85 T.R. Ratham v. K. Varadarajulu, 1970 AP 246; Sarojini v. Sivanandan, AIR 1956 Tra/Co. 129. 86 Saraswati Goswamy v. General Manager N.F. (Railway), AIR 1976 Gau 15; Surjit Kaur v. Thujhar Singh, AIR 1980 Punj 274. 87 Mary v. Zucharia & Co. Ltd., 1967 Ker LT 1082. 88 Green Wood v. G., 1945 Mad 65. 89 Ramsati Kuer v. Dwarika Prasad Singh, AIR 1967 SC 1134. See also Rubabbuddin Sheikh (2) v. State of Gujarat, (2007) 4 SCC 404, 410 (para 13) : AIR 2007 SC 1914. 90 H.J. Bhagat v. L.I. Corporation, AIR 1965 Mad 441. 91 Narayan Bhagwant v. Srinivas, 8 Bom LR 226; Gopal v. Maniji, 47 Bom 5; Ramlal v. Ram Niwas, (1959) 9 Raj 276; Jiwan Singh v. Kaur Reoti Singh, AIR 1930 All 427; Jangi Singh v. Gudri Singh, AIR 1932 All 365; Sarojini v. Sivabandan, AIR 1956 Tra/co 229; Cengar Soury Nayakan v. Meenan, AIR 1969 Ker 212. 92 Panchanan Chandra v. Kamala Biswas, 2000 AIHC 566 (para 2) (Cal) : AIR 2000 NOC 19(Cal) . 93 Chami Narayanan v. V.R. Krishna Iyer, AIR 1998 Ker 365 (para 15).

3. PRESUMPTION DOES NOT EXTEND TO THE DATE OF DEATH The presumption of death does not extend to the date of death 94 . There is no presumption that he died at the end of the first seven years or at any particular date 95 or at any subsequent period. 96 No presumption can be drawn as to the date/time of the death of a person who has not been heard of for seven years but it can be inferred on the basis of evidence, factual or circumstantial. Onus of proving that a person was alive/dead on a particular date/time lies on the person who asserts it. Rarely it may be permissible to proceed on premise that the death had occurred on any given date before which the period of seven years' absence was shown to have elapsed. 1 It is not a presumption in law that a person was alive for seven years from the time when he was last heard of. Sections 107 and 108 deal with the procedure to be followed when a question is raised before a court, as to whether a person is alive or dead, but do not lay down any presumption as to how long a man was alive or at what time he died. Assuming that the court could make a presumption that a person was alive for seven years after he was last heard of, it depends on the circumstances of each case whether the court could draw such a presumption or not. 2 However, it cannot be presumed that a certain person had died seven years prior to the date of institution of a suit. 3 The presumption raised under Section 108 is a limited presumption confined only to presuming the factum of death of the person whose life or death is in issue and as to the date or time of death. There is no presumption as to the facts and circumstances of death. An occasion for raising the presumption would arise only when the question is raised in a Court, Tribunal or before an authority who is called upon to decide as to whether a person is alive or dead. So long as the dispute is not raised before any Forum and in legal proceedings the occasion for raising the presumption does not arise. 4

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94 Ganesh Bux Singh Thukar v. Mohammad, (1954) 19 Luck 581; Venkata Subba Rao v. G. Subba Rao, AIR 1964 AP 326; Narayan Pillai v. Velayudhan, AIR 1963 Mad 385; A.V. Narayana Vadhyar v. Vankateshwara, AIR 1971 Ker 85 FB; N. Jayalakshmi Ammal v. R. Gopala Pathar, AIR 1995 SC 995 (para 8); Darshan Singh v. Gujjar Singh, AIR 2002 SC 606 (para 5) : (2002) 2 SCC 62; Eliamma Simon v. Seven Seas Transportation Ltd., AIR 2002 Ker 219, followed, N. Jayalakshmi Ammal v. R. Gopala Pathan, AIR 1995 SC 995. 95 Vidhabai v. Malhar, (1937) 41 Bom LR 147 : ILR (1938) Bom 155; Nidhiram Das v. Munei Pandab, ILR (1954) Cut 547; Sunita Roy Choudhary v. Jageshwar Choudhary, AIR 2006 Pat 127, 128 (para 7). 96 Mahammad Sharif v. Bande Ali, AIR (1901) 34 All 36(FB) . 1 L.I.C. of India v. Anuradha, AIR 2004 SC 2070 (para 15). 2 Veeramma v. Channa Reddi, (1921) 37 Mad 441. See also Subhash Ramchandra Wadekar v. Union of India, AIR 1993 Bom 64 (para 12), dissenting from Ram Kali v. Narain Singh, AIR 1934 Oudh 298. 3 Saroop Singh v. Banto, AIR 2005 SC 4407, 4411 (para 20) : (2005) 8 SCC 330. 4 L.I.C. of India v. Anuradha, AIR 2004 SC 2070 (paras 14 and 15).

4. PRESUMPTION OF DEATH DATE ON WHICH THE QUESTION IS RAISED The presumption of death would be the date on which the question was raised and not on an antecedent date. If the person is not presumed to be dead on an antecedent date prior to the one on which the question is raised, the natural inference is that he was alive till the question was raised. To a case where the proviso is attracted, the presumption under Section 107 does not apply. The English law is in no way different from the Indian Law.

5

The earliest date to which the death can be presumed can only be the date when the suit or claim of that right is filed, it cannot have a further retrospective effect. 6 Where a suit was filed exactly after the expiry of seven years the court said that without proof of the fact that death occurred before the enforcement of the Hindu Women's Right to Property Act (18 of 1937), rights under the Act could not be acquired. 7 The Supreme Court observed in a case before it, 8 that the presumption about the death of Sardul Singh even if raised would be restricted to the date of the filing of the petition. The court cited the Privy Council decision to the effect that "there is only one presumption and that is that when these suits were instituted in 1916 Bhagwan Gir was no longer alive. There is no presumption at all as to the time he died. That, like any other fact, is a matter of proof". 9 Where a person disappeared in December, 1950 and did not draw his allowance in January, 1951 and was not heard of for more than 7 years, it was held that in the absence of any evidence of probable motive of foul play or accident one has to speculate as to the cause of his disappearance, and it could not be presumed that he was dead, on the date of his disappearance and in the absence of proof that he was alive, the only conclusion possible is that he was dead at the time the question arose (date of plaint). 10 The son of the claimant took life insurance policy for a term of 25 years. The son went missing before the policy was matured. The father paid the premium for four years. After the death of the father, the claimant mother paid no premium and obtained a declaratory decree that her son was dead on the ground that he was not heard of for seven years. The insurance company denied to pay the full assured sum and the accrued bonus on the ground that the son would be presumed to be dead at the end of seven year from the date he went missing and the premium was paid by the father for only four years and hence the policy lapsed. Section 108 raises no presumption as to the date of death and the burden to prove that the person not heard of for seven years was alive, is on the person who asserts that such a person is alive. Hence, it was held that his date of death could be taken as the date of his disappearance or soon thereafter as could have been believed by the man of an ordinary prudence and after his death the insurance premium was not required to be paid. Hence the insurance company could not deny the benefit of the policy to his mother. 11 In the instant case, on the

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basis of material on record, the period of seven years of the person being unheard of was not complete as on the date of institution of the suit and the rights of the parties to the suit are to be decided as on the date of the institution of the suit. However, considering the peculiar facts of the case i.e. long pendency of the case for years and the person not being heard of during such pendency, the court held that presumption in terms of Sections 107 and 108 be considered for deciding the suit. 12 In a case where the wife of a person alienated the property to the plaintiff on 4-6-1962 and the plaintiff was dispossessed by the defendants in July 1962 and the vendor's husband was not heard of for 7 years, it was held that when the defendants challenged the right of the plaintiff's vendor to dispose of the property, in the absence of any proof as to the date of death of the transferor's husband, it can be presumed that he died earliest on the day when the plaintiff brought the suit. And since on the date of the earliest on the day when the plaintiff brought the suit. And since on the date of the transfer there was no proof that he was not alive, the plaintiff's suit could not be maintained and the presumption of death cannot be given a further retrospective effect. 13 The true principle of law is that where a party relies on a specific date of death of a person who has not been heard of for 7 years or more he must prove the specific date. If that cannot be proved the earliest date to which the death can be presumed can be the date on which the suit was filed, and it cannot be given further retrospective effect. 14 In a suit for possession of property alleging that the successor-in-interest had died and his line was extinct the suit was dismissed after 6 years on the ground that the death was not proved and hence the suit was premature. It was held that provisions of Sections 14(1) of the Limitation Act do not apply to the suit asSection 108 raises only presumption of death, but not the time of death. 15 The services of a temporary employee were terminated under Central Civil Services (Temporary Service) Rules, 1965 after his unauthorised absence for about two years. His wife applied for reliefs, namely, payment of arrears of salary, payment of death-cum-retirement gratuity and group insurance, family pension and also to give her a suitable employment, as her husband was deemed to have died in harness as he remained missing for more than seven years. The Tribunal not only ordered for payment of whatever dues were payable to her treating her husband to have died on a certain date but also directed to appoint her in Class IV as a dependent of the employee who had died in harness and in addition to pay her a compensation of Rs. 50,000/-. The Supreme Court held that as the services of the employee were terminated after about two years of his absence, the question of giving her any other relief, as sought for, did not arise. 16 The relevant point of time at which the presumption under Section 108 is available when the factum of the death of the person concerned becomes material and not the date of the suit; where the material point of time was the date of adoption viz., 15-8-1955 and it was established that the person to whom the adoption was made was not heard of by any person who should have heard of him, if he was alive, for seven years prior to 15-8-1955, then the presumption under Section 108 would be that he was dead on or before 15-8-1955 17 . It was observed in Ram Nathan v. Varadarajulu, (1970 AP 246) that the principles underlying Section 108 was not properly understood in Shankarapa v. Shivabadrappa, (1963 Mys 115) above. 18 In a case for divorce by the 2nd husband under the Hindu Marriage Act on the ground that on the date of his marriage the respondent's husband was living the respondent contended that her first husband was not heard of for over 7 years and should therefore be deemed to be dead under Section 108, of the Act; it was held that the presumption even if raised, could only mean that he was dead on the date of the petitioni.e., 11-11-76 and would not relate back to the marriage i.e., 24-5-1970 that since the husband by the first marriage who was alive in 1960 was presumed to be not dead on 24-5-1970 by the application of the rule under Section 107, in the absence of proof of death the marriage with the petitioner was null and void. 19 But under Sections 13(7) of the Hindu Marriage Act of 1955, and Sections 27(h) of the Special Marriage Act of 1954 it is specifically provided as a ground for divorce if the person had not been heard of for seven or more years by those who would naturally have heard of him if he was alive. There is a similar provision inSection 14(3) of the Matrimonial Causes Act 1965 in England. 20 5 Sarojini v. Sivnandan, AIR 1956 Tra/Co. 129; A.V. Narayana Vadhyar v. Venkateshwara, AIR 1971 Ker 85(FB) ; Lalchand Marwari v. Ramrup Gir, AIR 1926 PC 9; Venkateshwarulu v. Bapayya, AIR 1957 AP 380; In the Goods of

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Ganesh Das Arora, AIR 1926 Cal 1056; Mrs. Pat Sharpe v. Dwijendra Nath Bose, (1964) 1 CrLJ 367(Cal) ; Philip v. Kesavani, (1957) 1 Ker LJ 1028. 6 Jeshankar v. Bai Divali, (1920) 22 Bom LR 771. 7 R. Gopala Pathar v. N. Jayalakshmi Ammal, AIR 1984 Mad 341. 8 Surjit Kaur v. Jhuihar Singh, AIR 1980 SC 274. 9 Lalchand v. Ramsarup Gir, AIR 1926 PC 6; see also Mathru v. Rami, AIR 1986 HP 6 - presumption of death for succession. 10 Huseinny J. Bhagat v. L.I.C. Madras, AIR 1965 Mad 440; Ramamma v. Appayya, 1956 Andh. WR 137. 11 Bhanumati Dayaram Mhatre v. Life Insurance Corporation of India, AIR 2008 Bom 196, 198 (paras 5 and 6). 12 Geedam Damayanti Nallayya v. Geddam Akkamma, AIR 2008 (NOC) 178(AP) . 13 Narbada v. Ramdayal, AIR 1968 Raj 48; dissented in A.V. Narayana Vadhyar v. Venkateshwara, AIR 1971 Ker 85(FB) . 14 Ramlal v. Ram Niwas, (1959) 9 Raj 276; Sarojini v. Sivanandan, AIR 1956 Tra/Co. 129; Ramabai v. Saraswathi, AIR 1953 Tra/Co. 114; Huseinny J. Bhagat v. LIC, Madras AIR 1965 Mad 440; Harnand v. Commissioner Ambala Contonment, AIR 1972 Punj 14; Jeshankar v. Bai Divali, AIR 1920 Bom 85; Ponduri v. Jaladi, (1922) 43 MLJ 725; Chandi Charan v. Bhagyadhar, AIR 1976 Cal 356; Narbaba v. Ram Dayal, 1968 Raj 48; Ramamma v. Appayya, 1956 An WR 137. 15 Munsha Singh v. Gurdit Singh, AIR 1965 Punj 80; see also Punjab v. Natha, AIR 1931 Lah 582(FB) . 16 Union of India v. Geeta Devi, (2002) 10 SCC 166 (paras 1-3). 17 Shankareppa v. Shivarudrappa, AIR 1963 Mys 115; dissented in Biswanath Padhi v. Dharan Padhhi, ILR 1972 Cut. 318; Surjit Kuar v. Thujhar Singh, AIR 1980 Pun 274. 18 Narbada v. Ramdayal, AIR 1968 Raj 431; Parikhit Muddali v. Champa Dei, 1967 Ori 70; and Huseinny J. Bhagat v. LIC Madras, 1965 Mad 440; and doubted the decision in 1956 An WR 137. 19 Surjit Kaur v. Jhujhar Singh, AIR 1980 Punj 274. 20 Thompson v. Thompson, (1956) 1 All ER 603.

5. HINDU LAW AND MOHAMMADAN LAW SUPERSEDED The presumption of Mohammadan Law, that when a person has disappeared and has not been heard of for a certain number of years, he is dead and further that, as regards property coming to him by inheritance he must be deemed to have died at the date of his disappearance is a rule of evidence only and is superseded by this section. 21 The rule of Mohammaden Law that a missing person is to be regarded as alive till the expiry of ninety years from the date of his birth is overruled by this section. 22 So is the rule of Hindu Law that twelve years must elapse before an absent person of whom nothing has been heard during this period, can be presumed to be dead. Where the plaintiff claimed under Mohammaden Law a share in his grandfather's estate the onus is on him to show either by establishing a presumption under the Indian Evidence Act , Section 108, or by actual evidence that his father's death occurred at a date subsequent to that of the deceased owner; otherwise he is excluded by the children of the deceased living at his death as being earlier in degree.23 Sections 107 and 108 provide a uniform rule for Hindus and also for Mohammadans, and supersede the rules contained in Hindu and Muslim Laws. 24 21 Mairaj Fatma v. Abdul Wahib, (1921) 49 All, 678; Azzul Hussan v. Mohammad Faqrua, (1933) 9 Luck 401 : AIR 1934 Oudh 41.

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22 Mazhar Ali v. Budh Singh, (1884) 7 All 297(FB) . 23 Moola Kasim v. Moola Abdul Rahim, 32 IA 177. 24 Gurudas v. Morilal, 6 BLR 16; Rukbi Bibi v. Rahat Bibi, 7 NWP 191; Moola Kasim v. Moola Abdul Rahim , ILR 33 Cal 173 (PC) : 321 A 177; Ballaiah v. Kistnappa , ILR 11 Mad 448.

6. PLEADINGS AND PROOF The benefit of Section 108 is not available when the plea is neither raised not proved.

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Before a presumption under Section 108 is raised an appropriate enquiry is to be held and it is permissible to show that the allegation that a person has not been heard of for over 7 years is not true and there is evidence to show that he is alive, or has been heard of within that period. Unless it is established that the whereabouts of a person are not known and he has not been heard of for the past 7 years before the date of the suit, the presumption would be that he is alive. 26 In an ejectment suit by one of the joint lessors alleging that the co-lessor had died in or about 1954, it was held that it was not proved, that the co-lessor had not been heard of for seven years on the date when the second appeal was heard and decided, by those persons who would have heard of him if he had been alive, that as long as that was not proved, the provisions of Section 108 did not become applicable, and the case has to be decided not by applying Section 108 but by applying Section 107. 27 Where A stated that he and another B are monthly joint tenants under a landlord of a certain premises, it was held that it must be regarded as an admission on the part of A that B is alive and not that he is dead; that so Section 108 is ruled out and Section 107 is attracted and A must prove that B is dead. 28 No suit lies for a declaration that a person who was not heard of for over 7 years is deemed to be dead. 29 On which date within the period of seven years, a person has died is not a matter of presumption but of evidence and onus of proving that the death took place at any particular time lies upon the person who claims a right to the establishment of which that fact is essential. 30 25 Mohan Lal v. Jit Singh, 70 Punj LR 1047. 26 Balwant Rao v. Kerba, AIR 1953 Hyd 187. 27 Ram Swarup v. Roshan, 1964 All LJ 465. 28 1963 Cal LJ 75 : 68 Cal WN 786. 29 Freemantle v. Freemantle , (1949) 52, Bom LR 641. 30 Hemant Kishore v. Brij Raj Kishore, AIR 1998 All 328 (para 5). Death of executant of adoption-deed not proved, not heard of by plaintiffs and near relations for the last seven years not proved, no presumption of death, Baru v. Tej Pal, AIR 1998 All 230 (para 8).

7. Section 108 NOT EXHAUSTIVE SECTION 108 is not exhaustive on the question of presumption as regards the death of a person. The court may in the circumstance of a case make a suitable presumption even regarding the time of death of the person concerned. 31 The presumption is not rigid and may be proved before lapse of seven years from proof of special circumstance, e.g., where a deceased has been exposed it specific perils of death. 32 31 Ramsingh v. Board of Revenue, AIR 1964 All 310.

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32 Ishwar Dashabhuja Thakurani v. Kanchanbala Dutta, AIR 1977 Cal 473; In the Goods of Ganesh Das, AIR 1926 Cal 1056.

8. SIMULTANEOUS DEATH When two individuals perish in a common calamity (e.g. ship wreck, train collision, air crash, earthquake, etc.) and the question arises who died first in the absence of evidence on the point, there is no presumption in law that the younger survived the elder. Such a question is always from first to last a pure question of fact, the onus probandi lying on the party who asserts the affirmative. 33 33 Agha Mir. Ahmad v. Mir Mudassir Shah, (1944) 7 IA 171 : AIR 1944 PC 100; see Sections 21 of the Hindu Succession Act , 1956 in the case of simulataneous death).

9. KIDNAPPING Where during the pendency of the first appeal the plaintiff/respondent was kidnapped and the appeal was allowed against him in his absence, his wife and children were allowed to file the second appeal without waiting for seven years in the ends of justice. 34 34 Chanda Devi v. Shrinath Sharma, AIR 1993 Pat 105 (para 3).

10. INSURANCE POLICY In a consumer claim for benefit under insurance policy, premiums were regularly paid up to the time of disappearance of the insured person who was not heard of for a period of seven years. It was held that the insured could not be presumed to be dead nor could it be presumed that death had synchronized with the date he was reported to be missing nor the date and time of death could be correlated to the point of time coinciding with the commencement of calculation of seven years backwards from the date of initiation of the legal proceedings. Since the policy had lapsed due to nonpayment of further premiums, the claimant was held entitled only to the paid of value of the policy. 35 35 L.I.C. of India v. Anuradha, AIR 2004 SC 2070 (para 16), reversing 1999 (1) Rec Civ R 489 (J&K).

11. BANK ACCOUNT Whereabouts of a person, the account holder, were not known for years. His wife and children had no direct means to survive nor had the capacity to undergo civil litigation including payment of requisite court-fees as also for succession certificate etc. They filed a writ petition for the release of the money lying in the bank and the articles in locker. No one disputed their status or on the aspect of presumption about the whereabouts of that person. It was held that relief could not be declined to them merely because they had not resorted to the remedy of civil suit for succession certificate and that they were entitled to inherit the property by way of succession of first degree. 36 36 Pooja V. Raichandani v. State Bank of India , AIR 2009 (NOC) (Guj).

12. S. 108 AND RENT CONTROL ACT The question of presumption of death can be decided only by a Civil Court and not by a Court vested with limited jurisdiction under the Rent Control Act. 37 37 Haji D. Husain v. Vijavaraj, 1999 AIHC 4313 (para 8) (Kant).

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Ratanlal & Dhirajlal: Law of Evidence, Updated 23rd Edition/THE INDIAN EVIDENCE ACT (ACT 1 OF 1872)/PART III PRODUCTION AND EFFECT OF EVIDENCE/CHAPTER VII THE BURDEN OF PROOF/S. 109.

CHAPTER VII THE BURDEN OF PROOF S. 109. Burden of proof as to relationship in the cases of partners, landlord and tenant, principal and agent. When the question is whether persons are partners, landlord and tenant, or principal and agent, and it has been shown that they have been acting as such, the burden of proving that they do not stand, or have ceased to stand, to each other in those relationships respectively, is on the person who affirms it. 1. PRINCIPLE AND SCOPE

This section deals with presumption in case of relationship of partners in a partnership, landlord and tenant, or principal and agent. When the existence of a personal relationship, or a state of things, is once established by proof, the law presumes that the relationship or state of things continues to exist as before, till the contrary is shown, or till a different presumption is raised, from the nature of the subject in question. A partnership tenancy, or agency, once shown to exist, is presumed to continue, till it is proved to have been dissolved. Cases other than the three cases mentioned in this section are covered by the general presumption under Section 114(d) of the Act . G ARTH C.J. observed "This is a principle upon which the courts and the Legislature have generally thought it right to act, as in cases of presumption, and in presuming that a tenancy or partnership or other state of things continue till the contrary is proved". The learned judge was dealing with a case of an admitted private partition and the members of the family act ed upon that partition for several years. It was held that the onus was upon the plaintiffs who wants to disturb the existing state of things to show the arrangement under which the private partition was determined. 38 38 Abhoy v. Hurinath, (1882) 8 Cal 72.

2. PARTNERS Where a partner is to be made liable, the plaintiff should prove that such a person is a partner and continues to be a partner or has been acting as a partner of the firm. 39 Partnership once shown to exist is presumed to continue until the contrary is proved.

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After a firm is dissolved, the partners continue to be liable to third parties for any act done which would have been an actof the firm if done before the dissolution, until public notice of dissolution is given (s. 45, Indian Partnership Act , 1932). When the question is whether persons concerned are partners and it has been shown that they had been act ing as such, the presumption under this section is that the appellant who is one of such persons and who has been acting as a partner, is in fact a partner in the firm and that he continues to

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be such; the burden of proving that they are not partners or they had ceased to be partners is on the person who says that he was not a partner or had ceased to be a partner. 41 39 Bharat SP & W Co. v. Manilal, AIR 1935 PC 175. 40 Liladhar Ratanlal v. Holkarmal, (1958) 60 Bom LR 203 : AIR 1959 Bom 528. 41 Allah Bux v. Rahanlal Jain, AIR 1958 All 829; Firm Jowala Das v. Uttam Chand, AIR 1923 Lah 585.

3. 'LANDLORD AND TENANT' Where the relationship of landlord and tenant is admitted or proved to exist, it will be presumed to continue until it is shown by affirmative proof that it has ceased to exist. Mere non-payment of rent, though for many years, is not sufficient to show that such relationship had ceased. 42 Where it was shown that there was a relationship of landlord and tenant it is for the party to prove that such relationship ceased to exist. 43 The burden to prove that the relationship as landlord and tenant does not exist, is heavily on the person who affirmed that he is not a tenant. 44 In the case of an agricultural tenancy, it was held that where there was no proof of act ual possession by the landlord, the continuance of tenancy by holding over is to be presumed, entitling the tenants to occupancy rights. 45 Where a tenant was continuing in possession without the landlord's consent, it was held that he would not be a tenant holding over, but he would be a tenant by sufferance; if acceptance of rent would constitute implied assent of the landlord, it would have the effect of renewing the lease and not continuing the original lease. 46 The landlord claimed possession of property, stating that the tenant had orally surrendered the property. It was held that it was for him to prove the same and in absence of any evidence that the tenant was not in possession, presumption was in favour of the tenant. 47 Where a suit was filed by a tenant against landlord for possession of premises on the ground of illegal eviction and when both parties adduced evidence, it was held that the question of onus of proof was immaterial. 48 42 Rungo Lall Mundul v. Abdool Guffoor, (1878) 4 Cal 314; British India Steam Navigation Company v. Hajee Mahomed Esack and Company, (1881) 3 Mad 107; Attar Singh v. Ramditta, (1881) PR No. 110 of 1881 (Civil); Harish Chandra v. Ghisa Ram, AIR 1981 SC 695, recorded in Jamabandi as a tenant, presumption. 43 Kishore Singh v. State of Rajasthan, AIR 1981 SC 695; Chavali v. Tulluru, 28 MLJ 361; Devalraju v. Md. Jaffer , ILR 36 Mad 53; Sindh Shaik Ahmed v. Sultan Ahmad , 1938, 71 CLJ 100. 44 Raees Ahmad v. Shrigopal, 2002 AIHC 2152, 2157 (para 20) (Raj). 45 Mjd. Ali v. Nimar Ali, AIR 1973 Gau 80. 46 Bhawanji Lakhamihi v. Himatlal Jamnadas Dani, AIR 1972 SC 819; Udoy v. Md. Ali, 65 IC 589. 47 J.M. Jeyachandran Samuel v. G.S.S. Masilamani, AIR 2007 (NOC) 1853(Mad) . 48 Industrial and Mining Equipment Corp. Pvt. Ltd. v. N.L. Kanodia, AIR 1986 Del 36.

4. PRINCIPAL AND AGENT Where an authority to do an actis once shown to exist, it is presumed to continue until the contrary is proved. Sections 182- of the 238 of the Indian Contract Act deal with the relationship of principal and agent.Section 206 provides that a reasonable notice must be given of revocation or renunciation of agency. Section 208 provides for when the authority of an agent is terminated. Once the relationship of principal and agent, is shown to exist the burden of proving that it has ceased is on the person who asserts it. 49

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When two principals appoint an agent in respect of a matter in which they are jointly interested and if one of the principals dies, the death of one terminates the authority not merely in respect of the deceased, but also in respect of the other living principals. 50 Where an agent was appointed by several principals and one of the principals died, the agency continues under the surviving principals unless the principals were joint principals and not joint and several principals, and unless the power given to the agent was not joint and several. In such cases if the agent pleads that the entire agency has terminated, it is for him to prove under Section 109 by producing the document i.e. the power of attorney or by secondary evidence, that the principals were joint principal's. 51 Under the Hindu Law there is a presumption that a family was joint and it must be shown that the same character was determined by division. 52 49 Hira v. Md. Ali, AIR 1935 Lah 49. 50 Ponnuswami v. Chidambaram, 35 MLJ 294, In re : Sital Prasad, 21 Cal WN 620. 51 Manindra v. Haripada, 41 Cal WN 27. 52 Cheetha v. Baboo Miheen, 11 MIA 369.

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Ratanlal & Dhirajlal: Law of Evidence, Updated 23rd Edition/THE INDIAN EVIDENCE ACT (ACT 1 OF 1872)/PART III PRODUCTION AND EFFECT OF EVIDENCE/CHAPTER VII THE BURDEN OF PROOF/S. 110.

CHAPTER VII THE BURDEN OF PROOF S. 110. Burden of proof as to ownership. When the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner. 1. PRINCIPLE AND SCOPE

This section says that when a person is shown to be in possession of some property, the burden of proving that he is not the owner of such property is on the person who affirms it. This is based on the well known principle that possession is prima facie proof of ownership. The object of this provision is to allow a person who is in possession of property to continue in possession till some other party proves his title to it, thereby achieving the object of preventing other persons from committing breaches of peace by taking the law into their own hands. With the very same object Sections 6 of the Specific Relief Act , 1963 andSection 145, Cr PC, were enacted. This section gives effect to the principle that possession is prima facie evidence of complete title; anyone who intends to oust the possessor must establish a right to do so. 53 This is to be presumed from lawful possession until the want of title or a better title is proved. 54 The presumption, which is rebuttable, is attracted when the possession is prima facie lawful and when the contesting party has no title. 55 A person in possession of land without title has an interest in the property which is heritable and good against all the world except the true owner, an interest which unless and until the true owner interferes, is capable of being disposed of by deed or will, or by execution sale just in the same way as it could be dealt with if the title were unimpeachable. 56 Any property acquired by the Kartha of the joint family is presumed to be the joint family property. If any one of the coparceners asserts and claims that the property is self acquired property the burden is on him to prove that the said property is his self-acquired property. 57 Where a vendor of immovable property sues for possession his vendor not having been in possession at the time of the suit, it lies upon him to show that his vendor was in possession at some period within twelve years prior to the date of the suit. 58 S obtained a money decree against the sons and heirs of A and under that decree attached a shop as part of A 's estate. N (father of A ) applied to have the attachment removed alleging that the shop was his. The application was rejected and the shop was sold in execution and bought by P the defendant N then brought his suit against P to establish his title. It was held that the plaintiff having proved his possession at the date of the execution sale it lay upon P who claimed the property to prove a title in himself or in the judgement debtor A and that he having failed to do this, the plaintiff was entitled to a decree declaratory of his right to the property as against the defendant. 59

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Section 110 of the Evidence Act, 1872 would be applicable only to a "thing", which is capable of being possessed. A chose-in-action is not a thing, as, by definition, it is not in the possession of someone, but that possession has to be acquired by some action which is why it is called a chose-in-action. 60 53 Ramchandra Apaji v. Balaji Bhaurav, (1884) 9 Bom 137; Hassan v. Fazal Wahid, (1882) PR No. 121 of 1882 (Civil); Pir Baksh v. Jhanda Mal, (1882) PR No. 157 of 1882 (Civil); Nihal Chand v. Teju, (1883) PR No. 74 of 1883 (Civil); Nihal Singh v. Jiwanda, (1888) PR No. 116 of 1888 (Civil); Ram Chand v. Bhana Mal, (1900) PR No. 71 of 1900 (Civil); U Nyo v. Ma Shwe Meik, (1899) PJLB 514; Ma Ba v. Maung Kun, (1889) SJLB 474; Maung Ya Baing v. Ma Kyin Ya, (1895) 2 UBR (1892-96) 234; Ma Hla Gywe v. Ma Thaik, (1896) 2 UBR (1892-96) 377 Maung Thit v. Maung Kin, (1898) 2 UBR (1897-1901) 412; Maung Nwe v. Maung Po Gyi, (1897) 2 UBR (1897-1901) 416; Maung Lu Pe v. Maung Lu Gale, (1899) 2 UBR (1897-1901) 418; Ma Ngwe Zan v. Mi Shwe Taik, (1910) 1 UBR (1910-1913) 61; Chief Conservator of Forests v. Collector, AIR 2003 SC 1805 (para 19) : (2003) 3 SCC 472. 54 Jadh Singh v. Sundar Singh, (1882) PR No. 122 of 1882 (Civil). See also Chief Conservator of Forests v. Collector, AIR 2003 SC 1805 (para 19) : (2003) 3 SCC 472. 55 Chief Conservator of Forests v. Collector, AIR 2003 SC 1805 (para 19) : (2003) 3 SCC 472. 56 Gobind Prasad v. Mohan Lal, (1901) 24 All 157. 57 V.K. Thimmaiah v. V.K. Parvathi, AIR 2003 Kant 245, 249 (para 16). 58 Deba v. Rohtagi Mal, (1906) 28 All 479. 59 Premraj Bhavaniram v. Narayan Shivaram Khisti, (1882) 6 Bom 215 F.B. ; Krishna Yashawant v. Vadudev Apaji Ghotikar, (1884) 8 Bom 371; Moung Mir Dutta Maung Oh Gang, (1989) 2 UBR (1947) 1901, 421. 60 Standard Chartered Bank v. Andhra Bank Financial Services Ltd., (2006) 6 SCC 94, 137 (para 84) : AIR 2006 SC 3626.

2. ENGLISH LAW The English Doctrine of Possessory Title is based on equitable considerations to see that a person having long possession of the property is not disturbed by any wrong doer. C OCKBORN C.J., observed "I take it as clearly established that possession is good against all the world except the person who can show a good title." 61 This was followed in Perry v. Clissold 62 wherein it was stated that "It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner". In another case Glenwood L.C. Ltd. v. Phillips 63 it was held that it is a well-established that possession is good against a wrong doer and the latter cannot plead jus tertii . 64 61 Asher v. Whitlock, (1865) 1 Q.B. 1 followed in Sundar v. Parbati , ILR 12 All 51 (PC); Wali Ahmed v. Ajudhia , ILR 33 All 537 (FB); Ramdayal v. Sarswathi , ILR 49 All 191. 62 1907 AC 73, 79. 63 1904 AC 405. 64 Glenwood L.C. Ltd. v. Philips, 1904 AC 405.

3. INDIAN LAW Under Section 6of Specific Relief Act (47 of 1963) provides that a person who has been in possession of property, if dispossessed should file a suit for possession within six months of dispossession. In that case the person who files the suit need not necessarily have title to it. The Privy Council has laid down in a case, in which the plaintiff was a purchaser in possession and the defendant had no title at all, that lawful possession of land is sufficient evidence of right as owner, as against a person who has no title whatever, and who is a mere trespasser. The former can obtain a

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declaratory decree and an injunction against the wrongdoer. 65 In that case the plaintiff was in possession when he brought his suit and he asked for a decree declaring his right, and an injunction restraining the defendant from disturbing his possession. The Privy Council observed (Pages 106, 107 of 20 Indian Appeals), "The possession of the plaintiff was sufficient evidence of title as owner against the defendant. By Sections 9 of the (old) Specific Relief Act (Act 1 of 1877), if the Plaintiff had been dispossessed otherwise than in due course of law, he could, by a suit instituted within six months from the date of the dispossession, have recovered possession, notwithstanding any other title that might be set up in such suit. If he could thus recover possession from a person who might be able to prove a title, it is certainly right and just that he should be able, against a person who has no title and is a mere wrongdoer, to obtain a declaration of title as owner, and an injunction to restrain the wrongdoer from interfering with his possession." It is not necessary for a person claiming injunction to prove his title to the suit land provided he proves that he was in lawful possession until he was dispossessed by the defendant who had no title. 66 Where the plaintiff claimed title to the suit property and alleged that the defendant had encroached upon it, it was obligatory on the part of the plaintiff to prove that the land in question belonged to him.

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65 Ismail Ariff v. Mahomed Ghouse, (1893) 20 IA 99 : ILR 20 Cal 834; Sundar v. Parbati, (1889) 12 All 51, 16 IA 186. 66 Fakir Bhai Bhagwandas v. Maganlal Haribhai, AIR 1951 Bom 380. 67 M.T.W. Tenzing Namgyal v. Motilal Lakhotia, (2003) 5 SCC 1 (para 27) : AIR 2003 SC 1448.

4. PRESUMPTION UNDER THE SECTION The presumption of title under Section 110 from possession can arise only where facts disclose no title in any other party. 68 Presumption of possession and/or continuity thereof both forward and backward can also be raised under this section. 69 Where there is proof of long possession, it would constitute prima facie proof of title in the person having possession and it is for the other party to displace that presumption 70 but the burden is on the person claiming adverse possession to establish the identity and extent of the suit property. 71 Section 110 embodies a well-recognised principle that possession is prima facie proof of ownership; it does not make any distinction between the Government and a private citizen. It is equally applicable where a Government claims to be the owner and challenges the ownership of a person who is in possession of the property. 72 The plaintiffs sued the Government for a declaration that a certain piece of land belonged to them and that they might be confirmed in their possession, alleging that they had purchased the site for Rs. 20 in 1888 from one D whose father had mortgaged it for Rs. 20 to the plaintiffs' father. It was held that the possession of the plaintiffs being peaceable and having been obtained without ousting anyone, it was of such a character as to attract the presumption described in this section and was good against the whole world except the person who could show a better title, and that, as the Government had failed to establish their title to the land plaintiffs were lawfully entitled to its possession. 73 Where a portion of a house is proved to be in possession of a person for a long time a presumption of ownership of that portion arises in his favour. 74 The presumption of ownership contained in this section would arise only if two conditions are satisfied:-- (1) That the possession of the plaintiff is not prima facie wrongful i.e., his possession must have a lawful origin. (2) The other party has not proved his title to the property in question. 75 Mere act s of user will not lead to a presumption of title in case the possession is prima facie not proved to be lawful. When the possession of the plaintiff is referable to a sale certificate issued by the executing court, it is prima facie lawful in origin, and the presumption arising in favour of the municipality u/s. 36(h) of the Indore Municipal City Act, 1909 was held to be displaced. 76 When it is shown that a person has been in possession since a long time and his possession is of lawful origin and the opposite party cannot prove any superior title, the person in possession, is entitled to a decree

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for possession, if he is dispossessed. (though his suit is not under Sections 9 of the (old) Specific Relief Act .77 This rule applies both to immovable and movable property. 78 Where property was seized by the police from the possession of some known persons, it should be delivered to such persons without resorting to the procedure prescribed for proclamation under Ss. 457(2) and 458, Cr.P.C. as the presumption under Section 110 of the Evidence Act arises.79 Where A is proved to be in possession of a disputed quantity of pepper at the relevant time the presumption is that he is the owner. The burden of proving that he is not the owner is on the person who asserts it. 80 Where night soil was collected by sweepers of a Municipal Board and deposited on a leased land, it was held that the ownership in the night soil deposited on the leased land must be deemed to be in the Municipal Board. 81 The presumption applies only to ownership and not to adverse possession. When the title is not in dispute, this section has no application. 82 In a case of denial of title of the landlord by the tenant, the burden of proving that the plaintiff/landlord is not the owner of the suit property, is heavily on the defendant who says that plaintiff/landlord is not the owner of the suit property. 83 The term 'possession' in this section is to be understood as opposed to juridical possession and to denote actual present possession. Possession to be proved must be such possession as the property is capable of the normal method of user. 84 The proof of possession varies with the nature of property under the scrutiny of Courts and it can be proved by credible oral evidence as well. 85 In a suit to establish ownership over Government land by adverse possession, it was held that though from evidence of exclusive user, possession may be inferred, evidence of mere user by tethering cattle is not evidence of possession, much less of adverse possession and Section 110 is not attracted. 86 The plea of adverse possession has to be raised before the original authority and not for the first time at appeal or revision stage. 87 Where the presumption is that the ownership of salt land vests in the Govt., there arises no question of applying the presumption under this section. 88 In the case of waste and jungle land where there would be nothing except self-grown trees or wild grass, the possession which the plaintiff has to prove must be adequate in continuity, and in publicity and adverse to the opponent. 89 In the case of waste or jungle lands it was held that payment of land tax may be sufficient evidence of possession, as being the only practicable act of dominion. 90 However it was held that land revenue receipts do not ipso facto prove actual possession of land. 91 Where the tax receipts filed at least from 1955 showed that the entire suit land was the subject-matter of grant of tenancy by the landlord, it was held that a presumption could be raised in regard to possession, both backward and forward. 92 Where in a Pahani Patrak the name of one X was shown in the column "cultivators" for some years and the same column was left blank in subsequent years, it was held that the presumption is that X continued in possession in the subsequent years also and that there is no warrant for assuming that the owner re-entered into possession in those years. 93 Where the pattedars proved their possession and peaceful enjoyment of the lands in question from 1312 Fasli (1902 A.D.) as pattedars and there was no proof of conferment of patta on any one else; the facts relating to acquisition of title were not known and the appellant-State could not prove its title to the land, the presumption under this section applied and the appellant had to prove that they/pattedars were not the owners which it failed to do. The pattedars' title to the land in question was upheld. 94 There was a conflict of opinion between the High Courts as to whether a plaintiff in a suit for possession of immovable property, other than a suit under Sections 9 of the (old) Specific Relief Act (1 of 1877), is entitled to succeed merely upon proof of previous possession and dispossession by the defendant within twelve years prior to the suit, or whether he is bound to prove title. A Full Bench of the Bombay High Court held that possession is good title against all persons except the rightful owner, and entitles the possessor to maintain ejectment against any person other than such owner who

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dispossesses him.95 A person, although suing more than six months after the date of dispossession and without resorting to a possessory suit, 96 is entitled to rely on the possession previous to his dispossession as against a person who has no title. 97 The view of the Bombay High Court is in accordance with the English law. The effect of the Bombay cases is that when there is wrongful ouster of the person in possession, the person who comes into Court to oust such tort-feasor need not prove more than his possession of the land in dispute, and that he had been ousted by the defendant, and that the plaintiff's prior possession was prima facie evidence of his title. According to this view, it is not necessary to show title in the absence of any title shown by the defendant. The word 'possession' denotes act ual present possession. J ENKINS , C.J. said: "To say that a possession is not within the meaning of Section 110, unless it is a possession according to title, would be to render that section meaningless, and to introduce a doctrine subversive of the established principles of property law." 98 But R ANADE J., struck a different note: "Under Section 110,possession, when long and continued up to a recent date, leads to a presumption of title. Where the conflict is between mere previous possession and recent actual possession, the fact of previous possession will not entitle plaintiff to a decree except in suits under Sections 9 , (old) Specific Relief Act (1 of 1877), brought within six months from dispossession. Where this period is exceeded before a suit is brought, and is less than the limitation law requires, he must make out aprima facie title...And Section 110 (Evidence Act ) refers to the presumption to be made of ownership based on the circumstance of such possession, and allows the plaintiff with such prima facie title to claim a decree where no superior title is proved on the other side. It is in reference to such cases that it has been held that possession is evidence of title, and the plaintiff who proves such possession and subsequent disturbance, shifts the burden of proof on the defendant when the prima facie title is made out....Where no such title is made out, and plaintiff comes to the court and asks for a declaratory decree, he cannot obtain that decree on the mere ground that he was in possession and the defendant had no title. Mere wrongful possession is insufficient to shift the burden of proof. 1 This means that possession must be such a character as leads to a presumption of title. 2 A suit on a possessory title must be distinguished from a suit filed under Sections 6 of the Specific Relief Act , 1963, within six months of dispossession. The latter type of suit cannot be resisted on the ground of title, so that the suit can be maintained even against a true owner if he has dispossessed the plaintiff otherwise than in due course of law. A suit on possessory title, on the other hand, can be filed within twelve years of dispossession (Art 64 of the Limitation Act , 1963) and the plaintiff can maintain it against any person who does not have a better title. 3 The Calcutta High Court held that mere previous possession will not entitle a plaintiff to a decree for the recovery of possession except in a suit under Sections 9 of the (old) Specific Relief Act. 4 In a suit to recover possession brought more than six months after the date of dispossession, the plaintiff must prove title, and mere previous possession for any period short of the statutory period of twelve years cannot be sufficient for the purpose. 5 In a suit for recovery of possession based on the plaintiff's possessory title, the burden of proof lies on the plaintiff to prove his legal possession within 12 years, if proved the burden shifts to the defendant to prove that he is entitled to retain the possession on the basis of better title. 6 Thus, in cases other than possessory suits under the Specific Relief Act the plaintiff must show title or such adverse possession as confers a title under the Limitation Act . The Calcutta High Court inNishachand v. Kanchiram, (ILR 26 Cal 579) purported to follow the decision of the Privy Council in Wise v. Ameerunnissa, (6 CLR 249 : 7 IA 73 (PC)) which in holding that mere previous possession for any period within 12 years will not entitle a plaintiff to a decree for possession in a suit brought more than 6 months time after dispossession, even if the defendant could not establish any title to the disputed land. In Satish v. Madan 7 the court expressed doubt about Nishachand v. Kanchiram, (ILR 26 Cal 579) and held that a person in peaceful possession of land though not able to explain his title, will be entitle to recover possession by ejecting a trespasser. 8 The Madras High Court has held that, as against a wrong-doer, prior possession of the plaintiff in an act ion of ejectment is sufficient title, even if the suit be brought more than six months after the act of dispossession complained of, and the wrong-doer cannot successfully resist the suit by showing that the title and right to possession are in a third person. It is immaterial however short or recent the plaintiff's possession was.

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A suit to recover certain plots of land which were reformed after diluvion was filed basing on the title by prescription. Their Lordships of the Privy Council held that plaintiff cannot succeed as he did not file the suit under Sections 9 of the (old) Specific Relief Act , within 6 months of dispossession. 9 S UBRAMANIYA I YYAR J., observed in Mustafa Saheb v. Santha, ILR 23 Mad 176, that the observation of the Privy Council in Wise v. Ameerunnissa's (6 CLR 249 (PC) case should be read in conjunction with the finding given in that case namely, that the defendants became entitled to the land under a settlement with the government, to whom the land belonged and so the plaintiff could not recover on the strength of the previous possession except in a suit filed under Sections 9 of the (old) Specific Relief Act . The same view was taken inKrishnarao v. Vasude 10 & Sahodra v. Gobardhan 11 ; Mahabeer v. M ; as per Garth C.J. 12 The Allahabad High Court held that S. 9of the (old) Specific Relief Act does not debar a person who has been ousted by a trespasser from the possession of immovable property to which he has merely a possessory title, from bringing a suit in ejectment on his possessory title after the lapse of six months from the date of his dispossession.13 The Patna High Court held that a plaintiff who has omitted to sue under S. 9of the (old) Specific Relief Act , when first dispossessed, is not debarred from relying, in a suit for ejectment, on this section. As soon as he has proved that the defendant has dispossessed him the onus is thrown upon the latter to prove his title.14 It was held by Patna High Court that if a person's original entry into the land was on an ostensibly lawful basis on origin and if he is forcibly dispossessed by any trespasser or a wrongdoer, the person who was dispossessed would be entitled to a decree for possession taking the aid of Section 110 of the Evidence Act, without being called upon to negative the defect of his title. 15 In P OLLOCK & M ULLA ' S C ONTRACT A CT (7th Ed. P. 659) it is observed "It is submitted that the correct view is the one taken by Bombay, Allahabad & Madras Courts in accordance with the English doctrine as now settled, and that the present Section 9of Specific Relief Act , cannot be held to take away any remedy available to a party on the strength of his previous possession." The question is now concluded by the decision of the Supreme Court holding that a regular suit basing on prior possession without proof of title is maintainable against all persons who do not have title to the property. 16 The Supreme Court held in a suit for ejectment that prior possession of the plaintiff is sufficient title and the wrongdoer cannot resist the suit by showing that the title and right to possession are in a third person. He can only resist by showing a superior title in himself. 17 Where the plaintiff put forward a definite case of possession on the ground of the only evidence which was discarded, she could not revert back from the evidence and rely on the presumption under this section. 18 Possession of the original letter of allotment (LOA) or the original certificates of securities does not necessarily imply ownership therefrom. In the instant case, it had been proved by cogent evidence that the securities concerned had been purchased for consideration by another party which retained its title, irrespective of the fact that securities and/or their original letter of allotment were in the possession of the other party. 19 Unexplained money.-- Where the assessee had failed to show that the collections did not represent his income, in order to find out whether the assessee is the owner of any money in terms of Section 69-A of the Income Tax Act, 1961, the principle of common law jurisprudence in Section 110 of the Evidence Act, 1872 can be applied. 20 68 Nair Service Society Ltd. v. K.C. Alexander, AIR 1968 SC 1165. 69 Gurunath Manohar Pavaskar v. Nagesh Siddappa Navalgund, (2007) 13 SCC 565, 568 (para 12). 70 Keshav Krishnaji v. Municipal Commor, AIR 1951 MB 114; Ladhuram v. Suraj Bux, 1958 Raj 294; Prabhatbhai Shankerbhai Parmar v. Mahijbhai Nanabhai Parmar, 1998 AIHC 4395 (paras 19 and 20) (Guj). 71 Abdul Majid v. Abdul Ghaffar, 1997 AIHC 2933 (para 7) (All). See also Abdul Latif v. Nagar Vikas Pranyas, Udaipur, AIR 2006 Raj 215, 219 (para 17).

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72 A.P. State v. G Subbaraya Setty, (1967) 2 An WR 433. 73 Hanmantrav v. Secretary of State for India, (1900) 2 Bom LR 1111 : ILR 25 Bom 287. 74 Ladhuram v. Suraj Bux, 1958 Raj 294. 75 Secretary of State v. Chimanlal, AIR 1942 Bom 161; Nilakantha Singh v. Heisnam Ningol Thokchom, AIR 1970 Manipur 50. 76 Municipality Indore v. Gopal Puri, AIR 1956 MB 70; relying on Jagannath Shivanarayan v. Municipality Commr., Indore, AIR 1951 MB 80. 77 Krishna Rav Yashwant v. Vasudeo Apaji, (1884) 8 Bom 371; Wali Ahmed Khan v. Ajudhia Kandu, (1891) 13 All 537; Sam Bhasheo v. Mahadeo, AIR 1914 Nag 55; Tanhabai v. Gopinath, 1960 Nag LJ 65(notes) ; Ladhuram v. Suraj Bux, AIR 1958 Raj 294. 78 Chattra Kumari v. Mohan Bikram Shah, AIR 1931 Pat 114; Uthuppu v. Varki, 1959 Ker LT 682. 79 Keshu Lal v. State of Rajasthan, 1996 CrLJ 740 (paras 18-20) (Raj). 80 Uthuppu v. Varki, 1959 Ker LT 682 relying on Chattra Kumari v. Mohan Bikram Shah, AIR 1931 Pat 114. 81 Municipal Board Meerut v. Bir Singh, AIR 1965 All 527. 82 Ram Piari v. Nawab Singh, AIR 1950 All 496. 83 Raees Ahmad v. Shrigopal Prakash, 2002 AIHC 2152, 2156 (para 20) (Raj). 84 Venkiteshwara Iyer v. Cheriyathu Mathen, AIR 1957 Tra/Co. 223. 85 Kanti Lal v. Shanti Devi, AIR 1997 Raj 230. 86 State of Bombay v. Patel Chhotabhai Bhajibhai, ILR 1965 Guj 691; Jagannath Sivanarayan v. Municipal Commier., Indore, AIR 1951 MB 80. 87 Kottaiah v. State of Karnataka, 1997 AIHC 1882 (para 5) (Kant). 88 Union of India v. Muhammad Asagar, 1997 AIHC 61 (para 32) (Bom), relying on ratio of decision referred in AIR 1938 Mad 193 and distinguishing the decisions as reported in AIR 1922 PC 163 : AIR 1933 PC 103 and AIR 1965 SC 516. The Court referred to decision reported in 1944 BLR 295. 89 Jhandad v. Abdul Ghafur, AIR 1930 PC 281; Kuthali Mootharar v. Perigati Kunharhn Kutty, ILR 44 Mad 883(PC) . 90 Kirbi v. Cowderoy, 1912 AC 599; Devaji v. Gadhabhai, 11 WR 35(PC) . 91 Chandra Kanta v. Hem Chandra, AIR 1979 Gau 55. 92 Patinhare Purayil Nabeesumma v. Miniyatan Zacharias, (2008) 5 SCC 25, 31 (para 24). See also Gurunath Manohar Pavaskar v. Nagesh Siddappa Navalgund, AIR 2008 SC 901, 903 (para 12). 93 Bapu Raw v. Govt. of A.P., (1979) 1 An WR 58. 94 Chief Conservator of Forests v. Collector, AIR 2003 SC 1805 (para 21) : (2003) 3 SCC 472. 95 Pemraj Bhavaniram v. Narayan Shivaram Khisti, (1882) 6 Bom 215, F.B.; Ramchandra Narayan v. Narayan Mahadev, (1886) 11 Bom 216; Krishnacharya v. Lingawa, (1895) 20 Bom 270; Ambalal v. Secretary of State, (1899) 1 Bom LR 45; Basapa v. Basapa, (1900) 2 Bom LR 410; Fatan v. Emad, (1901) 3 Bom LR 246. 96 Specific Relief Act,1877 S. 9. 97 Krishnarav Yashwant v. Vasudev Apaji Ghotikar, (1884) 8 Bom 371; Pemraj Bhavaniram v. Narayan Shivaram Khisti, (1882) 6 Bom 215, FB followed, and Dadabhai Narsidas v. Sub-Collector of Broach, (1870) 7 BHC 82(ACJ), dissented from; Wa Tha v. Pe Hlaw, (1905) 3 LBR 27. 98 Hanmantrav v. The Secretary of State for India see also Ali v. Pachubibi, (1900) 25 Bom 287, 290 : 2 Bom LR 1111, 1114 : (1903) 5 Bom LR 264; Rajaram v. Nanchand, (1903) 5 Bom LR 225, 227.

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1 Hanmantrav v. Secretary of State for India, (1900) 25 Bom 287, 303, 2 Bom LR 1111, 1126; Achutt v. Shivajirao, (1936) 39 Bom LR 224. In an ejectment suit the defendant, though a trespasser, is entitled to require the plaintiff who seeks to eject him to prove that he has a superior title; Kalu v. Barsu, (1894) 19 Bom 803. Plaintiff in an action of ejectment must recover by the strength of his own title, not the weakness of his adversary's : Jowala Buksh v. Dharum Singh, (1866) 10 MIA 511; Thakur Basant Singh v. Mahabir Pershad, (1913) 15 Bom LR 525 : 530 40 IA 86 : 35 All 273; Dharani Kanta v. Gabar Ali, (1912) 15 Bom LR 445, P.C.; Ramchandra v. Vinayak, (1914) 16 Bom LR 863, 900 : 41 IA 290 : ILR 42 Cal 384; Bapuji v. Bhagvant, (1918) 20 Bom LR 346, 42 Bom 357. The plaintiff must establish such title as carries a present right to possession; Sitaram v. Sadhu, (1913) 16 Bom LR 132 : ILR 38 Bom 240. 2 Vasta v. Secretary of State for India, (1920) 45 Bom 789 : 23 Bom LR 238. 3 Mariumbi Aslamkhan v. Vithoba, (1969) 72 Bom LR 142. 4 Ertaza Hossein v. Bany Mistry, (1882) 9 Cal 130; Debi Churn Boido v. Issur Chunder Manjee, (1882) 9 Cal 39; Purmeshur Chowdhry v. Brijo Lall Chowdary, (1889) 17 Cal 256. 5 Nisa Chand Gaita v. Kanchiram Bagani, (1899) 26 Cal 579, 584; Sharma Churn Ray v. Abdul Kabeer, (1898) 3 CWN 158. Doubted in Shyama Charan Ray v. Surya Kanta Acharya, (1910) 15 CWN 163; Manik Borai v. Bani Charan Mandal, (1910) 13 CLJ 649; and Adhar Chandra Pal v. Dibakar Bhuyan, (1913) 41 Cal 394. Approved in Naba Kishore Tilakdas v. Paro Bewa, (1922) 50 Cal 23. 6 Kanti Lal v. Shanti Devi, AIR 1997 Raj 230. 7 1931 Cal 483. 8 Narayana Row v. Dharmachar, (1902) 26 Mad 514, See Krishna Aiyar v. Secretary of State for India, (1909) 33 Mad 173. 9 In Mustafa Saheb v. Santha, ILR 23 Mad 176; S UBRAMANIYA I YYAR J., explained the decision in Wise v. Ameerunnissa, 6 CLR 249(PC) . 10 ILR 8 Bom 371, 376. 11 39 IC 458. 12 ILR 7 Cal 591. 13 Wali Ahmad Khan v. Ajudhia Kandu, (1891) 13 All 537. See Lachho v. Har Sahai, (1887) 12 All 46; Gobind Prasad v. Mohan Lal, (1901) 24 All 157. 14 Haradhan Mondal Modak v. Iswar Das Marwari, (1916) 2 PLJ 61; Bodha Ganderi v. Ashloke Singh, (1926) 5 Pat 765. 15 Lilku Mahto v. Amar Mahto, AIR 1936 Pat 602; Section 9 of the Specific Relief Act 1877 does not control the operation of Section 110 of the Evidence Act in a suit based on possessing titleAtra Devi v. Ramswaroop Prasad, 1972 Pat 186. 16 Nair Service Society v. Alexander, AIR 1968 SC 1165. Approving the decision in Mustafa v. Shanta, 23 Mad 176. 17 Somanath v. Raju, AIR 1970 SC 846 following Ismail Ariff v. Md. Ghouse, (1893) 20 Cal 834(PC) ; and overruling Nishchand v. Kanchiram, ILR 26 Cal 579. 18 K.P. Parvathy Amma v. K.P. Chandramathi, 1999 AIHC 4548 (para 5) (Ker), relying on Suna Pana Chena Voona Sevugan Chetty v. Koovamma Kana Nana Kana Kannappa Chetty, AIR 1931 Mad 282 and Chandran Nair v. Kunhambu Nair, 1981 Ker LJ 83(SN) and distinguishing Bhagavathy Pillai Parvathi Pillai v. Anthony Kochumadan, 1968 Ker LR 127. 19 Standard Chartered Bank v. Andhra Bank Financial Services Ltd., (2006) 6 SCC 94 : AIR 2006 SC 3626. 20 Commissioner of Income Tax, Salem v. K. Chinnathamban, (2007) 7 SCC 390, 392-93 (para 5) : (2007) 9 JT 549.

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Ratanlal & Dhirajlal: Law of Evidence, Updated 23rd Edition/THE INDIAN EVIDENCE ACT (ACT 1 OF 1872)/PART III PRODUCTION AND EFFECT OF EVIDENCE/CHAPTER VII THE BURDEN OF PROOF/S. 111.

CHAPTER VII THE BURDEN OF PROOF S. 111. Proof of good faith in transactions where one party is in relation of active confidence. Where there is a question as to the good faith of a transaction between parties, one of whom stands to the other in a position of active confidence, the burden of proving the good faith of the transaction is on the party who is in a position of act ive confidence. ILLUSTRATIONS 11a)   The good faith of a sale by a client to an attorney is in question in a suit brought by the client. The burden of proving the good faith of the transaction is on the attorney. 12b)   The good faith of a sale by a son just come of age to a father is in question in a suit brought by the son. The burden of proving the good faith of the transaction is on the father. 1. PRINCIPLE

This section deals with proof of good faith in a transaction between the parties, where one of the parties is in a position of active confidence of the other. The two illustrations explain the scope of this section. A person who challenges the validity of a transaction on the ground of fraud, undue influence, etc., and alleges bad faith on the part of his opponent has to prove such allegations under Section 101 of this Act . An exception to this rule is the case of a person who stands in the position of active confidence to the other. The words 'good faith' indicate that the relationship between the parties must be such that one is bound to protect the interests of the other. This had been held to apply to a trustee, an executor, an administrator, a guardian, an agent, a minister of religion, a medical attendant, an auctioneer, and attorney. Persons standing in a confidential relation towards others cannot entitle themselves to hold benefits which those others may have conferred upon them unless they can show to the satisfaction of the court that the person by whom the benefits have been conferred had competent and independent advice in conferring them. 21 Though the illustrations refer only to instances of a lawyer and a client and a father and a child, this section applies to other cases also where one stands in a confidential relationship with the other whereby his predominating influence exists. This section applies especially to the case of pardanashin ladies. The principle of the rule embodied in this section which was called "the great rule of the Court" is that "He who bargains in a matter of advantage with a person placing confidence in him is bound to show,

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that a reasonable use has been made of that confidence. The rule applies to trustees, attorneys, or any one else." 22 Where a fiduciary or quasi -fiduciary relationship exists, the burden of sustaining a transaction between the parties rests with the party who stands in such relation and is benefited by it. The plaintiff having been entirely in the hands of the defendant, would be destitute of the means of proving affirmatively, the mala fide s of the transaction; whilst the defendant in such a transaction may fairly be subjected to the duty not only of dealing honestly but of preserving clear evidence that he has done so (Markby). In such cases it is seldom, if ever, possible to prove specific act s of deception, or of exercise of authority amounting to moral coercion. Yet, the risk of abuse is obviously great. The law therefore reverses its usual rule of evidence in dealings between man and man. Commonly we do not presume, without specific indications, that there is anything contrary to good faith in transactions which on the face of them are regular.... But this is the rule as between equals, persons who are capable of dealing with one another, as the accustomed forensic phrase goes, "at arm's length". When one party habitually looks up to the other and is guided by him, he can no longer be supposed capable, without special precautions, of exercising that independent judgement which is requisite for his consent to be free. (Pollock's Law of Fraud in British India, pp. 63-64). Section 16 of the Contract Act deals with cases where one of the parties is in a position to dominate the Will of the other and if he makes use of that position to obtain an unfair advantage, it can be challenged. Section 16(2)(a) of the Contract Act gives an example of a person who is in a position to dominate the Will of the other, by stating "standing in a fiduciary relation to the other". Section 16(3) states that the burden of proof is on the person who is in a dominating position, when the transaction appears to be unconscionable. The Supreme Court held that Section 16(1) of the Contract Act, lays down the principle in general terms whereas Sub-section (2) lays down that a presumption of undue influence is deemed to arise if the conditions set out therein are fulfilled; that Sub-sec. (3) lays down the conditions for raising a rebuttable presumption that a transaction is procured by the exercise of undue influence; the reason being that a person who has obtained an advantage over another by dominating his Will, may also remain in a position to suppress the requisite evidence in support of the plea of under influence. 23 The Courts of Equity in England place the burden of sustaining the transaction on the party benefited by it, where fiduciary relationship existed. The party has to show that the relationship was of unobjectionable character. 24 There is no fiduciary relationship between a grandfather and a grandson. When a grandfather impeaches the transaction he must give particulars of undue influence in sufficient detail, and he must prove that the grandson was in a position to dominate his Will. 25 Under Section 16(3) of the Contract Act, the burden is on the person who is in a dominating position when the transaction appears on the face of it or on the evidence, to be unconscionable. It must be shown that the dominating position was used to the detriment of the other person. 26 21 Raghunathji v. Varjiwandas, (1906) 8 Bom LR 525 : ILR 30 Bom 578; Hoti Lal v. Mussammat Ram Piari, (1903) PR No. 77 of 1903 (Civil). 22 Gibson v. Jeyes, (1801) 6 Ves Jun 266; followed in Nisar Ahmad Khan v. Mohan Monucha; Mohan Monucha v. Nisar Ahmad Khan, (1940) 43 Bom LR 465, 469 PC : AIR 1940 PC 204. 23 Ladli Parshad v. Karnal Distillery Co., AIR 1963 PC 1279. 24 Seetalpandit v. Parbhulal, (1888) 10 All 535; Mannu v. Umadat, (1889) 12 All 523. 25 Narain Bhatta v. Narsimha Batta, AIR 1965 Ker 189. 26 Poosathurai v. Kannappa Chettiar, ILR 43 Mad 546(PC) .

2. GOOD FAITH

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Section 111 applies where the validity of the transaction which is otherwise valid in all respects, is called in question on the ground that the person benefiting from it did not act in good faith or took advantage of his position. In a case where one party alleges that the other executed a promissory note in consideration of a debt and the other denies execution and alleges that the document itself is a forged one, Section 111 ordinarily has no application. 27 A settlement deed was allegedly executed by a 106 years old ailing, illiterate person validity of which was challenged by the plaintiff. The defendant examined no witness to prove the execution of the deed or putting of the thumb impression on it. It was held that the burden of proving the good faith of transaction would be on the defendant, dominant party who was in a position of act ive confidence and not on the plaintiff. 28 27 Satya Narain v. Nanki Devi, AIR 1968 All 224. 28 Krishna Mohan Kul v. Pratima Maity, AIR 2003 SC 4351 (paras 12 and 13) : (2006) 5 SCC 558.

3. ACTIVE CONFIDENCE Section 111 will apply when the bona fides of a transaction is in question but not when the real nature thereof is in question. The words 'active confidence' indicate that the relationship between the parties must be such that one is bound to protect the interest of the other. 29 Under Section 111 when one party stands to the other in a position of act ive confidence the burden of proving good faith would be on the party who is in a position of active confidence. But before such a finding is arrived at, the averments as regards alleged fiduciary relationship must be established before a presumption of undue influence against a person in a position of act ive confidence is drawn. The factum of active confidence should also be established. 30 Where in a suit filed for declaration that the sale deed executed was forged or fabricated which allegations were disputed by the respondents, the court by reframing issue as to whether the deed was valid cast burden on the defendant without there being the proof of their fiduciary relationship, the order of reframing the issue was held to be improper. 31 Where three sisters (defendants) executed a pronote in favour of the first defendant's husband (plaintiff) for services rendered in managing their joint estate the Privy Council held that it appeared from the circumstances that the first defendant (eldest sister) was in a position to influence her younger sisters and the onus of proving good faith was on the plaintiff. 32 Where an old woman depending entirely for food, clothes, and management of her property executed a gift in favour of the nephew it was held, it was sufficient to raise a presumption of influence over her and the burden was on the donee to prove that the act was spontaneous. 33 It was held that in a case of gift the donee should prove that the donor really understood and intended to execute the deed, but it was not necessary to prove that the donor took independent advice. 34 Where the plaintiff who was old, infirm, weak and having none to look after him, executed a deed of gift in favour of his brother's grandson believing it to be a deed of Will and he executed it at the request of the grandson; it was held that the burden is on the grandson to prove that the gift was not induced by undue influence. 35 Where the transaction appears on the face of it to be unconscionable the burden lies on the person benefited by the transaction to prove that the transaction was not induced by undue influence. 36 The burden is on the person who is in position of dominating to show that there was no under influence . 37 Where fraud, misrepresentation, or undue influence is alleged by a party in a suit, normally, the burden is on the person who alleges it to prove the same. But, when a person is in a fiduciary relationship and in a position of active confidence, in regard to an illiterate woman, the burden of proving the absence of fraud, mis-representation or undue influence, is upon the person in the dominating position; he has to prove good faith and fair play in the transaction and that it is a genuine and bona fide one. When the party complaining shows fiduciary relation, the law presumes everything against the transaction and the onus is cast upon the person holding the position of confidence or trust to show that the transaction is perfectly fair and reasonable. 38

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An agent entrusted with the management of an estate is in the position of act ive confidence of his principal and the burden of proving good faith is on the agent or on the person who claims through him. In such cases the presumption against the transaction, is rebuttable. 39 Where the impugned deed was executed by the plaintiff soon after he attained majority in favour of his maternal uncle (defendant) who was acting as the de facto guardian during the minority of the plaintiff, and there was no specific denial of the allegation in the plaint about the fiduciary relationship between the parties, it was held that the burden of proving good faith was on the defendant. 40 A Director of a company indisputably stands in a fiduciary capacity vis-a-vis the company. He must act for the paramount interest of the company. He does not have any statutory duty to perform so far as individual shareholders are concerned subject of course to any special arrangement which may be entered into or a special circumstance that may arise in a particular case. He has no fiduciary duty to advise the shareholders as to when and in what manner they should enter with the transactions with the company including acceptance of offer of additional shares. Having regard to nature of transaction in the instant case, the Director had no fiduciary duty towards the shareholders, hence provisions of this section could not be invoked to prove the bona fide of the director. 41 29 Anil Rishi v. Gurbaksh Singh, AIR 2006 SC 1971, 1974 (para 15). 30 Anil Rishi v. Gurbaksh Singh, AIR 2006 SC 1971, 1974 (paras 13 and 14) : (2006) 5 SCC 558. 31 Anil Rishi v. Gurbaksh Singh, AIR 2006 SC 1971 : (2006) 5 SCC 558, reversing C.R. No. 1077 of 2005, Dated 14.12.2005 (P&H). 32 Palani Velu v. Neelavathi, AIR 1937 PC 50. 33 Inche Noriah v. Shaik Allie, AIR 1929 PC 3. 34 Sikandar Begam v. Zulfikar, AIR 1938 PC 38. see also Farid-un-nissa v. Mukhtar Ahmad, AIR 1925 PC 204; Kalibaksh v. Ramgopal, 26 MLJ 121(PC) . 35 Debi Prasad v. Chhotey Lal, 1966 All 438. 36 Lakmiah v. Chakkamma, (1969) 1 Mys LJ 507; Ballo v. Paras Ram, AIR 1972 HP 33 (a case of a gift). 37 Mohanlal Jagannath v. Kashiram Gokul, AIR 1950 Nag 71. 38 Guljan Bibi v. Nazir Uddin Mia, AIR 1975 Gau 30. See also Ramu Mahabir v. Ghurhoo Samu, AIR 2006 All 273, 279 (para 18). 39 Subbamma v. Md. Abdul Hafiz, AIR 1950 Hyd 55. 40 Pannalal Biswas v. Dilip Kumar Mondal, AIR 1977 Cal 297. 41 Samgramsinh P. Gaekwad v. Shantadevi P. Gaekwad, AIR 2005 SC 809 (paras 44, 82 and 85).

4. BORROWINGS Mere fact that a person was in need of money cannot be held that the money lender was in a position to dominate the Will of the borrower. 42 However, the helpless condition of a borrower may result in exercising undue influence by a money lender. 43 Where exorbitant rate of interest was stipulated and the borrower did not realise the real nature of the transaction, it was held it is sufficient to make out a case of undue influence. 44 42 Barkatunnisa v. Debi, AIR 1927 PC 84. 43 Harnam v. Rajaram, 148 PLR 1911 following Maneshar Baksh Singh v. Shadilal, ILR 31 All 386(PC) . 44 Chatring Mool Chand v. Whit Church, (1907) 32 Bom 208.

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5. TRUSTEE In the case of a transaction of purchase by a person occupying fiduciary position as in the case of trustee and beneficiary and the transaction is by the beneficiary whose interests are adversely affected, the purchaser trustee must show that there has been no fraud and there was no unjust enrichment in his favour and he acted in good faith. 45 45 Nelliewapshare v. Pierce Leslie and Co. Ltd., AIR 1960 Mad 410.

6. SOLICITOR AND CLIENT Where a mortgage was executed by a person in favour of his pleader's son, it was held that the mortgagee was not one who stood in a position of act ive confidence of the mortgagor. A mortgage between a solicitor and a client should not ordinarily be scrutinized with the same care as in the case of gift or a sale at undervalue from the client. Merely because a clause was inserted in the mortgage deed fixing time, and the amount of payment by the mortgagor, it cannot be said to constitute an unfair advantage on the part of the mortgagee of mortgagor's position. 46 Where a client made a gift in favour of his lawyer's wife as a token of gratitude, it was held that it was far from being an improvident act and as the transaction bore the stamp of righteousness and naturalness. It would show that it was spontaneous and valid. 47 46 Nisar Ahmad v. Mohan Manucha, AIR 1940 PC 204. 47 Bireswar Sen v. Ashalatha Ghose, AIR 1969 Cal 111.

7. INSOLVENCY Under the Provincial Insolvency Act , the burden lies on the insolvent to prove the exception provided in Section 42(1)(a) of that Act,viz., that the transaction is a bona fide transaction. 48 48 Jwala Singh v. Laboo Ram, AIR 1969 Pat 28.

8. PARDANASHIN LADIES In the case of deeds and powers executed by pardanashin ladies, it is requisite, that those who rely upon them should satisfy the court that they had been explained to, and understood by those who executed them. 49 In the case of a pardanashin lady the law throws around her a special coak of protection. It demands that the burden of proof shall in such a case rest not with those who attack, but with those who found upon a deed executed by her, and the proof must go so far as to show affirmatively and conclusively that the deed was not only executed, but was explained to and was really understood by her. 50 The expression " pardanashin " is not to be confused with a lady observing pardah . The word has special legal significance and means one who is unable to understand the transaction by virtue of the manner in which she has been brought up. 51 A Pardanashin lady accused will not be exempted from personal attendance in court as a matter of right. But at the same time the court must reasonably use the discretion of granting such exemption under Section 205 of the Criminal Procedure Code, 1973, after due consideration of all the attending circumstances including the social status, custom and practice of the accused as well as the necessity of her personal presence having regard to the nature of the offence and the stage of the trial. No strict test as to the pardanashin status can be laid down, and non-observance of rigidity with regard to pardah, e.g. attending social and religious functions or going to bathe in the river, etc. with veils on would not take the accused out of that category. The court is to be guided by the prevailing habits and customs. 52

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As illiterate and rustic village woman is entitled to the same benefits as are available to a pardanashin . In the case of an old woman suffering from infirmity, ignorance, illiteracy, mental deficiency, inexperience and dependence upon others, intended to create a wakf and not a sale, it was held that a heavy burden of proof lay upon those who alleged it to be sale. 53 Similar burden lay upon those who dealt with a person suffering from apparent mental or physical incapacity. 54 The Privy Council held that where there was a relation of confidentiality between the parties, and where a person who was in a position to dominate the Will of a pardanashin lady had obtained a deed in his favour and the deed showed on its face to be harsh and unconscionable, the person benefited by the deed had to rebut the presumption in such circumstances against the deed. 55 The Privy Council held that "the onus is on the party who relies on a deed executed by a pardanashin lady to satisfy the court that it had been explained to and understood by her before the execution or after it, showing that she adopted the deed with full knowledge and comprehension. That the disposition must be substantially understood and must really be the mental act, as its execution is the physical act of the person who makes it. 56 In all cases where the document is executed by a pardanashin lady, it should be shown by the person who obtained the deed that the transaction is fair and equitable and it was explained to her and she understood the meaning and effect of the instrument she was executing. 57 In some cases it was held that for upholding the transaction it had to be proved that the contents of the document are fair and equitable and it was explained to her and that she knew and understood the meaning and also the effect of the contents of the instrument she was executing. 58 Where the legal adviser of a pardanashin woman obtained a mortgage deed for the money he advanced to the lady, it was held that such transaction should be examined with close scrutiny and the court should insist on the mortgagee to show that the transaction was fully understood by the mortgagor and was a fair and honest transaction. 59 For rebutting the presumption mere adducing proof that legal advice or independent advice was taken is not sufficient, but it must further show that it was act ed upon by the pardanashin lady. 60 In the case of sales or gifts executed by pardanashin ladies, the person whether a purchaser or a donee must show conclusively that the transaction was honest and bona fide and the lady had some independent advice before execution of the document. 61 If the contents of the documents are intricate they must be adequately explained and the degree of intelligence of the lady would be a material factor to be considered whether she understood the meaning and effect of those contents, though independent legal advice is not in itself essential. 62 Even in cases where a pardanashin lady had independent advice the court will scrutinize the transaction very closely to see that it is a fair one. 63 Even if it is established that the lady had an intelligent understanding of the deed, still the question of undue influence may arise, depending on the facts of the case, in view of the relationship between the donor and the donee. 64 Even if there is proof showing absence of undue influence, ignorance of the contents of the deed or the effect of the contents may be sufficient to invalidate the deed. 65 Her free and intelligent consent to a transaction is necessary.

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The rule of special protection to a pardanashin , old and illiterate woman should not be applied in each and every case but should be applied in the light of the facts of each case. 67 The transactions entered into with a pardanashin lady fall broadly into two groups: namely, (1) cases where the person who seeks to hold the lady to the terms of her deed is one who stood towards her in a fiduciary character or in some relation of personal confidence; and (2) cases where a person as an absolute stranger and dealt with her at arm's length. In the former class of cases the court will act with great caution and will presume confidence put and influence exerted; in the latter class of cases the court will require the confidence and influence to be proved intrinsically. In all these cases the fairness of the bargain is the crucial test. 68 49 Sudisht Lal v. Musummat Sheobarat Koer, (1881) 8 IA 39 : ILR 7 Cal 245; Annoda Mohan v. Bhuban Mohini, (1901) 3 Bom LR 386 : 28 IA 71, ILR 28 Cal 546; Shambati v. Jago Bibi, (1902) 4 Bom LR 444 : 29 IA 127, (1902) 29 Cal 749; Mirza Sajjad Ali v. Nawab Wazir Ali, (1912) 14 Bom LR 1055(All) : 39 IA 156, ILR 34 All 455; Kali Baksh v. Ram Gopal, (1913) 15 Bom LR 147 : 41 IA 23, ILR 36 All 81; Sunitabala Debi v. Dhara Sundari Debi, (1919) 22 Bom LR 1 : 46 IA

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272 : ILR 47 Cal 175; Kamawati v. Digbijai Singh, (1921) 24 Bom LR 626 : 48 IA 381 : ILR 43 All 525; Farid-un-nissa v. Mukhtar Ahmed, (1925) 28 Bom LR 193 : 52 IA 342 : AIR 1925 PC 204 : ILR 47 All 703; Ramanamma v. Veranna, (1931) 33 Bom LR 960(PC) : AIR 1931 PC 100; Tara Kumari v. Chandra Mauleshwar Prasad, (1931) 34 Bom LR 222 : 11 Pat 227 : 58 IA 450 : AIR 1936 PC 303; Sheoparsan Singh v. Narsingh Sahai, (1932) 34 Bom LR 890(PC) ; Kundan Lal v. Mushraffi Begum, (1936) 38 Bom LR 783 : 163 IA 326 : ILR 11 Luck 346 : AIR 1936 PC 207; Palanivelu A.V. v. Neelavathi, (1937) 39 Bom LR 720 PC; Kharbuja Kuer v. Jangabahadur Rai, AIR 1963 SC 1203, relied on in Annapurna Barik Dei v. Inda Bewa, AIR 1995 Ori 273 (para 5). 50 Bank of Khulna, Ltd. v. Jyoti Prokash Mitra, (1940) 42 Bom LR 1139 : 67 IA 377 : AIR 1940 PC 147; Tulsiram v. Chunnilal, ILR (1940) Nag 149 : AIR 1938 Nag 391; Jaibunnisa v. Abdul Ghafoor, AIR 1984 Pat 257, (a pardanashin lady pleaded that her signature was obtained by fraud, held, heavy burden of proof lay upon the other party). 51 Andhi Kuer v. Rajeshwar Singh, AIR 1972 Pat 325; Ghulam Zubra v. Habla Begum, AIR 1985 J&K 22, a lady leading public life and appearing in courts is not Pardanashin . 52 Rajlakshmi Devi v. State, (1953) 1 Cal 78. 53 Ashok Kumar v. Gaon Sabha, Ratauli, AIR 1981 All 222; Narayan Mishra v. Champa Dibya, AIR 1986 Ori 53; Paranath Rai v. Tilesara Kaur, 1965 ALJ 1080; Ramdeo v. Dulari Devi, AIR 1996 All 253 (paras 18 and 19); sale-deed obtained by fraud without reading out and explaining to illiterate woman, void ab initio, Upendra Mahanto v. Champa, 1996 AIHC 3449 (para 6) (Ori); Palaniammal v. Rangasamy, 1999 AIHC 4394 (paras 56 and 57) (Mad). 54 Daya Shanker v. Bachi, AIR 1982 All 376(FB) . (the Court explained the meaning and scope of "fiduciary relations"). 55 Thakurji v. Ramdei, AIR 1930 PC 139. See also Satyadeo Prasad v. Chander Joti Debi, AIR 1966 Pat 110; Jubeda Khatun v. Sulaiman Khan, AIR 1986 Gau 71; Narayan Mishra v. Champa Dibya, AIR 1986 Ori 53. 56 Farid-un-nissa v. Mukhtar, 1925 PC 204; approved and relied by the Supreme Court in Kharbhuja Kuer v. Jangbahadur Rai, AIR 1963 SC 1203. 57 Md. Ali v. Ramjan, 24 Cal WN 977(PC) ; Person v. Narsingh, 55 CLJ 323(PC) ; Kalyan Mal v. Ahmadduin, 38 Cal WN 1157(PC) ; Kharbuja Kuer v. Jangbahadur Rai, AIR 1963 SC 1203; Mayur Bhanj State Bank v. Bhabatosh Das, AIR 1961 Ori 178; Guljan Bibi v. Naziruddin, AIR 1975 Gau 30. 58 Bazloor v. Shamsoonissa, 11 MIA 551; Sudisht Lal v. Sheobarat, ILR 7 Cal 245 (PC); Kishorilal v. Chunilal, 9 Cal LJ 172(PC) ; Md. Ali v. Ramjan, 24 Cal WN 977(PC) ; Kharbuja Kuer v. Jangbhadur Rai, AIR 1963 SC 1203; Kalyan Mal v. Ahmad Uddin, AIR 1934 PC 208; Sheoprasan Singh v. Munshi Narasingh Sahay, AIR 1932 PC 134. 59 Mahabir v. Taj Begum, 19 Cal WN 162(PC) . 60 Inche Noriah v. Shaik Allie, AIR 1929 PC 3. 61 Shri Kishan v. Kashmiro, 1926 PC 172. 62 Ramanamma v. Viranna, AIR 1931 PC 1100. 63 Nathusa v. Mohammad Siddique, AIR 1939 Nag 159. 64 Karunamoyee Debi v. Maya Moyi Debi, AIR 1948 Cal 84. 65 Bank of Khulna v. Jyoti Prokash Mitra, 45 Cal WN 259 : AIR 1940 PC 147. 66 Hem Chandra v. Suradhani Debiya, AIR 1940 PC 134 : 67 IA 309; Vinayak Wamanrao v. Sk. Md. Hanif, ILR (1953) Nag 281 : AIR 1954 Nag 11; Pathumma v. Vasudevan, ILR 1951 TC 320. 67 Kulsuman-nisa v. Ahmadi Begum, AIR 1972 All 219. 68 Pathumma v. Vasudevan, AIR 1954 Tra/Co 160.

9. ILLITERATE PERSON-- NON EST FACTUM Common Law defence of non est factum to act ions on specialities in its original was available where an illiterate person, to whom the contents of a deed had been wrongly read, executed it under a mistake as to its nature and contents, he could say that it was not his deed at all. In its modern application, the doctrine has been extended to cases other than those of illiteracy and to other contracts in writing. In most of the cases in which this defence was pleaded the mistake was induced

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by fraud; but that was not, perhaps a necessary factor, where fraud exists, but on the ground that the mind of the signor did not accompany the signature; in other words, that he never intended to sign, and therefore, in contemplation of law never did sign, the contract to which his name is appended. In Foster v. Mackinnon 69 the defendant was inducted to endorse a bill of exchange on the false representation that it was a guarantee similar to one he had signed on a previous occasion. He was not liable when sued even by an innocent endorsee of the bill. B YLES , J. said : "............. the defendant never intended to sign that contract or any such contract. He never intended to put his name to any instrument that was or thereafter might become negotiable. He was deceived, not merely as to its legal effect but as to the 'actual contents' of the instrument."

In Chitty on 'Contracts' 25th Edition--Vol. 1, General Principles, in Chapter 5, under Section 343 (at pages 194 and 195), the learned author says : "The law on this subject was completely reviewed and restated by the House of Lords in Saunders v. Anglio Building Society 70 and the distinction between the character or nature of a document and the contents of the document was rejected as unsatisfactory. It was stressed that the defence of non est factum was not lightly to be allowed where a person of full age and capacity had signed a written document embodying contractual terms. But it was nevertheless held that in exceptional circumstances the plea was available so long as the person signing the document had made a fundamental mistake as to the character or effect of the document. Their Lordships appear to have concentrated on the disparity between the effect of the document actually signed and the document as it was believed to be (rather than the nature of the mistake) stressing that the disparity must be "radical", "essential", "fundamental" or "very substantial."

In Foster v. Mackinnon, 71 the action was by the endorsee of a bill of exchange. The defendant pleaded that he endorsed the bill on a fraudulent representation by the acceptor that he was signing a guarantee. He was held not liable. In holding that such a plea was admissible, the Court observed : It (signature) is invalid not merely on the ground of fraud, where fraud exists, but on the ground that the mind of the signor did not accompany the signature; in other was, that he never intended to sign ......... He was deceived, not merely as to the legal effect, but as to the 'actual contents' of the instrument. A contract or other transaction induced or tendered by fraud is not void, but only voidable at the option of the party defrauded. The transaction remains valid until it was avoided. 72 The legal position will be different if there is a fraudulent misrepresentation not merely as to the contents of the document but as to its character. With reference to fraudulent misrepresentation as to character, it has been held that the transaction is void and with reference to contents, it is merely voidable. 73 Where the executant was under a bona fide belief that she was executing a gift-deed only but in fact two documents were got executed by her, one a gift deed and another a sale-deed. It was a case of fraudulent misrepresentation as to the character of document executed by her and not merely as to its contents or as to its legal effect. She never intended to enter into the contract to which she unknowingly became a party. Her mind did not accompany her thumb impression. It was held to be a totally void transaction. 74 In a case an illiterate old father wanted to executed a will in respect to his property in favour of his son who took his father's signature on a partition deed before the Sub-Registrar by showing the properties to be joint family properties. The father signed the document in good faith. The document was unusually attested by seven witnesses including one utter stranger not known to both the parties. Most of the witnesses did not see executant signing the document. As a result of the deed the son got the entire property which he sold off and also drove his old father out of his house. All these made clear that a fiticious deed was brought into existence. The lower appellate Court held that the document was non est and void. The second appeal was dismissed holding that the father could sue for the declaration of title and recovery of possession without praying for setting aside the partition. 75 Where the sole witness the scribe of a sale-deed, executed by an illiterate lady, made no statement that the contents of the document were read out and explained to her and there was no other direct or circumstantial evidence in respect of it, it was held that due execution of the document was not proved and the document was invalid. 76

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The executant sought to cancel the gift deed executed in favour of his grandson (daughter's son). He was an illiterate old man of 65 years and was seriously ill at the relevant time. He loved his minor grandson and desired to give away his property to him by way of a gift deed to be operative after his death and never wanted to part with the same immediately. Obviously he was not made fully aware of the 'character of the document' to be operative immediately. The burden of proof in that respect, being on the donee, was not discharged. The Court held that the gift deed was liable to be cancelled and the entire property was to be restored back to the executant. 77 69 1869 LR (4) CP 704. 70 1970 (3) All ER 961. 71 1869 LR (4) CP 704. 72 Ningawwa v. Byrappa, AIR 1968 SC 956, at p. 958 : 1968 (2) SCR 797, at pp. 800-01. The Court referred to Foster v. Mackinnon, 1869 LR (4) CP 704 with approval. 73 Ningawwa v. Byrappa, AIR 1968 SC 956 : 1968 (2) SCR 797, at p. 801. 74 Dularia Devi v. Janardan Singh, AIR 1990 SC 1173 : 1990 (Supp) SCC 216 (paras 6 and 7), following Ningaruwa v. Byrappa, AIR 1968 SC 956 : 1968 (2) SCR 797. 75 Selvarasu Kounder v. Sahadeva Kounder, AIR 1998 Mad 58 (para 23). 76 Kuma Dei v. Md. Abdul Latif, AIR 1994 Ori 111 (para 9), relying on Kharbiya Kuer v. Jangbahadur Rai, AIR 1963 SC 1203. 77 Kanha v. Kalu, AIR 2007 (NOC) 770(Raj) .

10. LITERATES In the case of a literate woman with considerable intellectual capacity and habits having dealings with another persons, it was held that no presumption would arise that the person stood in a position of act ive confidence to her. 78 78 Satya Narain v. Nanki Devi, AIR 1968 All 224.

11. BLIND Mere signature of a blind person on the sale-deed cannot have any force. Where an illiterate and blind woman is alleged to have executed a sale-deed, the execution of which is denied by her, a heavy burden is laid on the purchaser to prove that she not only agreed to sell but she knew what was being written and the document was in accordance with the terms of the agreement. 79 79 Shivamma v. Abdur Rahman, ILR (1952) Hyd 668 : AIR 1953 Hyd 25.

12. HUSBAND AND WIFE The Privy Council held that where an illiterate wife mortgaged her properties for the benefit for her husband who was managing her properties, the presumption of undue influence would arise. 80 A film actress filed a suit for declaration of title on the ground that the conveyance deed was signed by her without being aware of the nature of the document. It was held that though the plaintiff and the defendant were living together as wife and husband, as her case was not that she was unable to resist the defendant in getting the property from her, the suit can be taken as based on fraud and not on undue influence. In the absence of particulars of fraud, plaintiff cannot succeed. 81 80 Tunbabai v. Yeshwant Jog, 1945 PC 8. See also Buzloor Ruheem v. Shamoonnissa, (1867) 11 MIA 551 (wife selling the property to her husband).

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81 Bhupendrakumar v. M.K. Lakshmi, AIR 1990 Mad 46(DB) .

13. SPIRITUAL ADVISER AND DISCIPLE Where a gift was made by a pardanashin lady in favour of her priest, it was set aside on the ground of undue influence. 82 In a suit for cancellation of a deed of gift executed by the plaintiff in favour of the defendant, the plaintiff was well advanced in years, and the defendant was his spiritual adviser. The gift comprised the whole of the plaintiff's property, and the only reason for its execution was the plaintiff's desire to secure benefits to his soul in the next world. Almost immediately after the execution of the deed the plaintiff repudiated it, and sued for its cancellation on the ground of fraud. It was held that having regard to the fiduciary relation subsisting between the parties, the burden rested upon the defendant to show that the transaction was made without undue influence and in good faith; and, in the absence of such proof, the plaintiff was entitled to obtain cancellation of the deed. 83 82 Kamini v. Krishna, 16 Cal WN 649. 83 Mannu Singh v. Umadat Pande, (1890) 12 All 523.

14. GUARDIAN AND WARD It has been held that where a son made a gift in favour of his father, the father has to show that he has not abused his position and the gift was not brought about by any undue influence on his part and the donor had independent advice when the gift was made. 84 The presumption under the section cannot go beyond the relations stated therein. Any other presumption has to be brought under Section 114. 84 See also Pannalal v. Dilip Kumar, AIR 1977 Cal 297; (where the impugned deed was in favour of maternal uncle immediately after the executant attained majority).

15. WILLS A Will is not a "transaction between two parties" within the meaning of Section 111, because a Will is a unilateral document. Hence a Will may be treated as an exception to the principle contained under Section 111. However, in the case of a Will also a person who is benefited under the Will may be in a position of act ive confidence towards the testator in some cases. The Supreme Court observed "When once it has been proved that a Will has been executed with due solemnities by a person of competent understanding and apparently a free agent, the burden of proving that it was executed under undue influence is on the party who alleges it." 85 It was further held that at times phychological factors and the frame of mind of the testator may determine his action; however, the possibilities of fraud or fabrication, particularly in cases of old and feeble persons cannot be ruled out and the courts have to scrutinize the surrounding circumstances very carefully; there is no presumption of law or fact in this country that a woman to whom a man is engaged to be married is in a position to dominate his Will so as to override his own real intentions; it is not mere influence, but undue influence that has to be proved by the party who sets up the plea. It was a case of a Will in favour of a newly wedded wife and the testator died sometime after the marriage. 86 The Privy Council held that in order to defeat a Will on the ground of undue influence, it must amount to coercion, fraud, or duress. 87 Section 111 applies to Wills also. 88 It was held by the Madras High Court "There is a difference between the case of Wills and cases of contracts or gifts or settlement deeds as regards the burden of proof. In the case of Wills, it is for the person who impeaches the Will as having been executed under influence to set up and prove it. But in

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the case of gifts, or settlements where the donee or the settlor is shown to have been a person in real or apparent authority or in a fiduciary relationship to the donee, or settlor, or where the donor or settlor's mental capacity was temporarily or permanently affected by reason of age, illness or mental or bodily distress, the onus is upon the donee or settlor to prove that the gift or settlement was not brought about by undue influence ." 89 Evey influence is not under influence, and the mere fact that a bequest is in favour of a person who was looking after the testator at or about the time of the Will does not by itself indicate that the will was executed under undue influence; in such cases the burden lies on the testator or persons claiming under him to prove undue influence . 90 85 Naresh Charan Das Gupta v. Paresh Charan Das Gupta, AIR 1955 SC 363 following the dictum in Boyce v. Russborough, (1857) 6 HLC 249 followed in Craig v. Lamoureux, 1920 AC 349 see also Surendra Pal v. Saraswati Arora, AIR 1974 SC 1999; Narayana Iyer v. Venkitasubramonia Iyer, AIR 1957 Ker 115. 86 Surendra Pal v. Saraswathi Arora, AIR 1974 SC 1999. 87 Gomtibai v. Kanchhedilal, AIR 1949 PC 272, relying on Boyse's case. 88 Nandalal v. Dasarathi, 61 Cal LJ 304 : AIR 1936 Cal 15. 89 Venkatarama Aiyar v. Krishnammal, AIR 1927 Mad 259. 90 Prithwis Kumar Mitra v. Bibhuti Bhushan Mitra, (1966) 1 Cal 408.

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Ratanlal & Dhirajlal: Law of Evidence, Updated 23rd Edition/THE INDIAN EVIDENCE ACT (ACT 1 OF 1872)/PART III PRODUCTION AND EFFECT OF EVIDENCE/CHAPTER VII THE BURDEN OF PROOF/S. 111-A.

CHAPTER VII THE BURDEN OF PROOF 91

[S. 111-A.

Presumption as to certain offences. 18)   Where a person is accused of having committed any offence specified in sub-section (2), in-1. any area declared to be a disturbed area under any enactment, for the time being in force, making provision for the suppression of disorder and restoration and maintenance of public order; or 1. any area in which there has been, over a period of more than one month, extensive disturbance of the public peace, and it is shown that such person had been at a place in such area at a time when firearms or explosives were used at or from that place to attack or resist the members of any armed forces or the forces charged with the maintenance of public order acting in the discharge of their duties, it shall be presumed, unless the contrary is shown, that such person had committed such offence. 17)   The offences referred to in sub-section (1) are the following, namely:-2. an offence under Section 121 , -A, Section 122 or Section 123 of the (45 of 1860); 2. criminal conspiracy or attempt to commit, or abetment of, an offence under Section 122 or Section 123 of the (45 of 1860).]

91 Section 111-A, inserted by the Terrorist Affected Areas (Special Courts) Act, 1984, (w.e.f. 14-7-1984).

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Ratanlal & Dhirajlal: Law of Evidence, Updated 23rd Edition/THE INDIAN EVIDENCE ACT (ACT 1 OF 1872)/PART III PRODUCTION AND EFFECT OF EVIDENCE/CHAPTER VII THE BURDEN OF PROOF/S. 112.

CHAPTER VII THE BURDEN OF PROOF S. 112. Birth during marriage, conclusive proof of legitimacy. The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten. 1. PRINCIPLE AND SCOPE

The section is based on the principle that when a particular relationship, such as marriage, is shown to exist, then its continuance must prima facie be presumed. 1 Under the section the fact that any person was born:-12a)   during the continuance of a valid marriage between his mother and any man, or 13b)   within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man unless the parties had no access to each other at any time when he could have been begotten. Evidence that a child is born during wedlock is sufficient to establish its legitimacy and shifts the burden of proof to the party, seeking to establish the contrary. The presumption under this section is a conclusive presumption of law which can be displaced only by proof of non-access between the parties to the marriage at a time when according to the ordinary course of nature the husband could have been the father of the child. 2 The expression "conclusive proof", as used in this section, means proof as laid down under Section 4of the Indian Evidence Act , 1972.3 Access and non-access connote existence and non-existence of opportunities for marital intercourse. Sections 41, 112 and 113 are the only sections which deal with matters which are to be regarded as 'conclusive proof'. No rule of the kind can be based on considerations of evidence because enquiry is altogether excluded. The basis of the rule in the first case (Section 112) seems to be a notice that it is undesirable to enquire into the paternity of a child whose parents have access to each other. This section refers to the point of time of the birth of the child as the deciding factor and not to the time of conception of that child the latter point of time has to be considered only to see whether the husband has no access to the mother. 4 It is the principle of law that "Odiosa et inhonesta non sunt in lege prae sumenda" (Nothing odious or dishonourable will be presumed by the law). So the law presumes against vice and immorality. One of the strongest illustrations of the principle, is the presumption in favour of legitimacy of children in a civilized society. But, where illegitimacy seems as common as marriage and legitimacy, a presumption

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of legitimacy cannot be drawn and legitimacy or illegitimacy will have to be proved like any other fact in issue. 5 The law leans in favour of validity of marriages and in favour of legitimacy of children and not bastardy. 6 Even though the marriage might be found to be void but the children born out of the said void marriage could be said to be legitimate. 7 The presumption under Section 112 should be drawn by all courts, Civil, Criminal and revenue governed by the Evidence Act . 8 The provisions of Section 112 are as much applicable to the offspring of a marriage between Hindus, as it is to children of spouses professing other faiths including Mohammadan. 9 The provision of Sections 112 of Indian Evidence Act is based on principle.Peter est quem nuptiae demonstrant (Father is one whom marriage indicates). When child was born during valid marriage, it is a conclusive proof of its legitimacy unless strong and cogent evidence is led to prove otherwise. 10 1 Bhima v. Dhulappa, (1904) 7 Bom LR 95. 2 Seethalakshmi v. Ponnuswamy, (1966) 2 Mad 373. See also Goutam Kundu v. State of W.B., 1993 CrLJ 3233 (paras 22 and 24) (SC) : AIR 1993 SC 2295; Ajaya Kumar Naik v. State of Orissa, 1995 CrLJ 82 (para 6) (Ori); Banarsi Dass v. Teeku Dutta, (2005) 4 SCC 449, 454 (paras 10 and 11); Dukhtar Jahan v. Mohd. Farooq, (1987) 1 SCC 624; Amarjit Kaur v. Harbhajan Singh, (2003) 10 SCC 228. 3 Banarsi Dass v. Teeku Dutta, (2005) 4 SCC 449, 453 (para 9). 4 Palani v. Sethu, (1924) 47 Mad 706 : AIR 1924 Mad 677; Palsingh v. Jagir, (1926) 7 Lah 368 : AIR 1926 Lah 529(2). 5 Lal Haribansha v. Nikunja Behari, ILR 1960 Cut 230 relying on 35 IA 41. 6 Paravathi Ammal v. S. Madathi Ammal, AIR 2002 Mad 462, 470, relying on, Rajagopal Pillai v. Pakkiam Ammal, 1968 (2) MLJ 411 and Sarangapani v. Varadhan, AIR 1995 Mad 188. 7 Shalini Ballikar v. Aiden Naique, AIR 2005 NOC 512(Bom) . 8 Subamma v. Venkata Reddi, ILR (1950) Mad 394, 395. 9 Boramma v. Dharmappa, AIR 1969 Mys 17; A.G. Ramachandran v. Shamsunnisa, AIR 1977 Mad 182; relying on Sampatia Bibi v. Mir Mahboob AIR 1936 All 528; Sibt Md. v. Hameed; AIR 1926 All 589. 10 Heera Singh v. State of U.P., 2005 CrLJ 3222, 3223 (para 5) (All) : 2005 All LJ 2147.

2. MOHAMMADAN LAW According to Mohammadan law a child born six months after marriage or within 280 days after divorce or the death of the husband is presumed to be his legitimate offspring. If the question for decision be one of evidence only it will be governed by this section 11 and the child will be considered legitimate if born within six months after marriage of its parents 12 . A child born more than two hundred eighty days after the dissolution of his mother's marriage with her first husband but less than six months after her marriage with her second husband was held entitled to inherit as the legitimate son of the second husband. 13 Under the Mohammadan law the legitimacy has to be considered with reference to the date of conception. 14 It was held that even if at the date of their marriage the parties were foreigners and even if the parties had not abandoned their domicile of origin which was in Iran and acquired their domicile in India, it is a clear principle of law that where it is established that there has been a marriage in fact and particularly if the marriage is followed by cohabitation, there would be a presumption that there has been a marriage which is valid in law, though that presumption, of course, is rebuttable. 15 This section has no application when maternity is in dispute and not paternity.

16

The presumption under Section 112 only applies in favour of marriage and legitimacy, it is not applicable to any particular form of marriage so as to create a particular status to the child. 17

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Unless it is established beyond doubt that a woman was the exclusively kept mistress of the man and relationship was virtually one of monogamy, it cannot be legitimately presumed that the child was born to the woman through that man. 18 11 Mazhar v. Budh Singh, (1884) 7 All 297(FB) ; Kaniza v. Hasan Ahamad Khan, (1925) 1 Luck 71 : AIR 1926 Oudh 231. 12 Sibt Mohammad v. Mohammad Hameed, (1926) 48 All 625 : AIR 1926 All 589; Muhammad Allahabad Khan v. Muhammad Ismail Khan, (1888) 10 All 289. 13 Nur-ul-hassan v. Muhammad Hassan, (1910) PR No. 78 of 1910 (Civil); P. v. R, (1911) PR No. 77 of 1911 (Civil). 14 Mohd. Allahabad Khan v. Md. Ismail, (1888) 10 All 289. 15 Jamshed A Irani v. Banu J. Irani, (1966) 68 Bom LR 794. 16 Nand Kishwar Bux v. Gopal Bux Rai, AIR 1940 PC 93. 17 Molapo Mojele v. Thaso Lerotholi Mojela ; AIR 1928 PC 276. 18 Durai-raju v. Neela, 1976 CrLJ 1507(Mad) ; following Mahadeva Rao v. Yesoda Bai, AIR 1962 Mad 141.

3. DURING THE CONTINUANCE OF A VALID MARRIAGE BETWEEN HIS MOTHER AND ANY MAN The presumption as to paternity in this section only arises in connection with the offspring of a married couple. The section applies to the legitimacy of the children of a married person only. 19 On the birth of a child during marriage the presumption of legitimacy is conclusive no matter how soon the birth occurs after the marriage. 20 Even children born with only a gestation period of six months have been known to survive and live. Where a child was born eight months after date of marriage there could be no doubt that she could very well be the child of the father. 21 There must be marriage between the parties who make acknowledgement of paternity, Mere admission of paternity is not enough proof of legitimacy when the existence of marriage is not shown. 22 In a case involving a dispute relating to relationship of the parties as husband and wife and paternity of a male child, the Courts below had decided the case by drawing certain inferences due to the failure of the parties to produce contemporaneous relevant evidence. The Supreme Court, having regard to the importance of the case not only to the parties and the child but also its relevance to the society, observed that the matter called for careful and in-depth consideration of evidence on record keeping in mind the sensitive nature of the disputes raised, and remitted the case to the Trial Court to give the parties opportunity to adduce further evidence and to decide the matter expeditiously. 23 When the wife was driven out by the husband within few days after the marriage on the ground of her concealed pregnancy and a child was born within four months after being driven out, it was held that no presumption under Section 112 can be raised. 24 When proof is given of the marriage on a certain date, the court may under Section 4 consider the marriage as subsisting on a subsequent date also unless and until it is disproved. 25 Under the section the presumption of legitimacy follows the subsistence of a valid marriage. 26 It is upon the person who claims to be the legitimate issue of his parents to bring forward satisfactory evidence in support of their marriage. 27 The law presumes in favour of marriage and against concubinage. Continuous cohabitation between a man and a woman for a number of years may raise the presumption, though it is rebuttable. Where a marriage took place many years ago though the evidence is unsatisfactory it cannot displace the presumption. 28 Where it was proved that a man and woman have been having cohabitation for a long period, that cohabitation would produce a presumption that they were married spouses. But if the woman with whom there was such cohabitation is proved to be a public woman, that presumption

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would be unavailable. 29 Although the law presume in favour of marriage and against concubinage it does not presume that concubinage ripens into marriage by mere efflux of time or birth of children. 30 Children born to a married women cannot be held to be the progeny of the paramour.

31

A person claiming as an illegitimate son must establish the alleged paternity in the same manner as any other disputed question of relationship. 32 The presumption that children born of a married woman, during the lifetime of her husband are the legitimate offspring of that woman and her husband, is not conclusive proof of their legitimacy and must be regarded as fully rebutted where the woman admittedly lived four years with another person and they both asserted such children to be the offspring of their union. 33 There must be continuance of valid marriage if presumption is to be made under this section.

34

Where a wife came to her husband's home a few days before he died and remained there up to the time of his death and it was shown that a child alleged to be that of her husband, was the child of the wife, and that it was born within the time necessary to give rise to the presumption under this section, it was held in the absence of any evidence to show that the husband could not have had connection with his wife during the time she was residing with him the presumption as to the paternity of the child given by this section must prevail. The fact that the husband was, during the period within the child must have been begotten, suffering from a serious illness which terminated fatally shortly afterwards, was held not sufficient to rebut the presumption. 35 A woman ' shudra ' by caste deserted her husband and lived with another man and a child was born from that relationship. The paternity of the child was acknowledged by the relatives. The child would be a legitimate one as the matrimony was acknowledged by the relatives and abandoning by a ' shudra ' woman of her husband amounted to divorce. 36 19 XXX v. Mason, (1896) 1 UBR (1892-1896) 74. 20 Umra v. Muhammad Hayat, (1907) PR No. 79 of 1907 (Civil). See also Mangilal v. Saligram, AIR 2009 (NOC) 1273(MP) ; L.Yuvaraj v. Kirubaarani Devi, AIR 2009 Mad 138, 139 (paras 7-9). 21 Ponnammal v. Andi Aiyyan, ILR (1953) TC 726. 22 Fatma Binti v. Administrator General, AIR 1949 PC 254. 23 Murugaiah v. Annathai, (2002) 9 SCC 604 (para 10). 24 Abdul Rahiman Kutti v. Aysha Beevi, AIR 1960 Ker 101. 25 Ismail Ahmed v. Momin Bibi, AIR 1941 PC 11; Chandu Lal v. Bibi Khatemonnessa, AIR 1943 Cal 76; Bhima v. Dhulappa, (1904) 7 Bom LR 95. 26 Perumal Nadar v. Ponnuswami Nadar, AIR 1971 SC 2352; P.V. Sabu v. Mariakutty, AIR 1998 Ker 86 (para 18). 27 Thakur Amjal v. Nawab Ali Khan, (1906) 9 Bom LR 264(PC) . 28 Badri Prasad v. Dy. Director of Consolidation, AIR 1978 SC 1557 followed in Milkhi Ram v. Milkhi Ram, AIR 1996 HP 116 (para 15); Nizam-patnam v. Kondiparti, AIR 1948 Mad 198; Gnanamuthu v. Anthoni, AIR 1960 Mad 430. See also Sobha Hymavathi Devi v. Setti Gangadhara Swamy, AIR 2005 SC 800 (paras 5 and 6). 29 Rafiuddin v. Zubedabi, AIR 1968 Mys 155; Ghazanfar Ali v. Kaniz Fatema, ILR 32 All 345. See also M. Shanmugha Udayar v. Sivanandam, AIR 1994 Mad 123 (para 33); Ranganath Parmeshwar P. Mali v. E.G. Kulkarni, AIR 1996 SC 1290 (para 6); S. Ajarma Bi v. S. Khurshid Begum, AIR 1996 SC 1663 (para 4); Chowdegowda v. C. Nagaraju, AIR 1996 SC 3485 (para 4), reversing RSA No. 204 of 1994, Dt. 17-3-1995 (Kant). 30 Basanti v. Pohlu, AIR 1952 Bilaspur 13. 31 Sreenivasan v. Kirubal Ammal, AIR 1957 Mad 160; Laldevi v. Munilal, ILR 1959 Punj 1269; Bhagavathi Amma v. Aiyappan Pillai (husband's brother was the paramour) AIR 1953 Tra/Co. 470. 32 Gopalasami Chetti v. Arunachellam Chetti, (1903) 27 Mad 32, 33. 33 Bahadur Singh v. Viru, (1905) PR No. 28 of 1906 (Civil).

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34 Tileswar Ahom v. Kohuli Ahomani, AIR 1951 Assam 148. 35 Narendra Nath Pahari v. Ram Gobind Pahari, (1901) 29 Cal 111(PC) : 4 Bom LR 243, 29 IA 17. 36 M. Govindaraju v. K. Munisami Gounder, AIR 1997 SC 10.

4. MEDICAL EVIDENCE It was held by the Supreme Court in Mahendra Manilal Nanavati v. Sushila Mahendra Nanavati 37 that the usual period of gestation from the date of first coitus is between 265 and 270 days and delivery is expected in about 280 days from the first day of menstruation period to a woman conceiving a child; the medical opinion as is disclosed by text books on obstetrics and Gynaecology refer to some rare exceptions of live births even with a gestation period of a few days less than 180 days. Where the child was born after 171 days of the first coitus between the husband and wife, and the delivery was normal, normally the court should hold that the child was not the child of the husband unless there is evidence which would justify the court in holding otherwise. Where the child was born after 182 days from the first coitus between the parties, the husband led cogent evidence to prove that he had no access to wife at the time when the child was begotten and the wife refused to undergo DNA test, it was held that an adverse inference could be drawn against the wife, and the husband was entitled to the decree in his suit for annulment of marriage. 38 When the husband failed to prove that the child who was born 7 months after the marriage was a prematurely born child the presumption is in favour of legitimacy and the child will be entitled to maintenance. 39 37 AIR 1965 SC 364. 38 Maya Ram v. Kamla Devi, AIR 2008 HP 43, 49 (paras 37 and 38). 39 Dukhtar Jahan v. Md. Farooq, AIR 1987 SC 1049.

5. BIRTH CERTIFICATE The birth certificate, that proceeds on the basis of the Baptism Certificate containing the fact that the baptismal record was read and checked before the god parents and was signed by the person in authority alongwith the god parents, was held to be a legally recognised proof of legitimacy. 40 40 Luis Caetano Viegas v. Estreline Mariana R.M.A. Da'Costa, AIR 2003 SC 630 (para 8).

6. WITHIN TWO HUNDRED AND EIGHTY DAYS AFTER ITS DISSOLUTION, THE MOTHER REMAINING UNMARRIED The section does not lay down a maximum period of gestation, and therefore does not bar the proof of the legitimacy of a child born more than two hundred and eighty days after dissolution of marriage, the effect of the section being merely that no presumption in favour of legitimacy is raised, and the question must be decided simply upon the evidence for and against legitimacy. 41 A person born within two hundred and eighty days after the death of his father is presumably his legitimate son. 42 When a person claims under this section, to be the son of a deceased person, he must prove that he was born within two hundred and eighty days after the death of his father. 43 The maximum period of gestation cannot be more than 360 days (Modi's Medical Jurisprudence and Toxicology, 13th Ed, p. 313.

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The Bombay High Court held that the fact in determining the legitimacy of a posthumous child born beyond the period of 280 days the principles enunciated in divorce cases and that cases during lawful wedlock would not in principle make any difference; as the questions of adultery and legitimacy are closely interlocked, one completely dependent upon the other, the quantum of proof must be the same in each case and the evidence must show that the child is not a legitimate child beyond any reasonable doubt. The mere fact that 306 days had lapsed after the death of the father when the child was born, would not be sufficient to hold that the posthumous son was an illegitimate son. 44 The presumption of legitimacy can be drawn if a child is born beyond the period of 280 days, which is a reasonable period of normal period of gestation. 45 Where child was born within six month of dissolution of marriage and father denied the paternity of the child, in absence of any evidence that the child was not healthy or was not of six months, it was held to be not safe to doubt the paternity of the child and it would be presumed that the child was born during subsistence of marriage especially when there was no evidence to the effect that any other person had access to the mother of child after dissolution of the marriage. 46 Where a child was born 8 months after the marriage and the husband pleaded that he was incapacitated for having sexual intercourse for one months from the date of marriage on account of some operation undergone, it was held that even assuming that the husband was so incapacitated the time available over 7 months was sufficient to raise the presumption that he was the father of the child. 47 It was held that a child born 223 days after the husband's death was legitimate. days after husband's death was held illegitimate. 49

48

Child born after 470

Where a child was born 6 months 4 days after the marriage and it was found it was a normal delivery and it was not a case of premature birth of the child, it was held that the presumption is rebutted. 50 Though ordinarily the period of gestation is 10 days + 9 months after the date of last menstruation, the child may be born earlier than 280 days on account of existence of certain individual factors. A child born on the 240th day after sexual intercourse is not unnatural, and so the child is legitimate. 51 Where a muslim woman delivered a child 220 days after the marriage it was held that as the period is sufficient for conception and birth of a child, it would be legitimate. 52 Where a woman left the husband 10 days after the marriage and was living as a concubine of the appellant and a child was born 7 months after the woman leaving her husband and when there was no evidence that the birth of the child was premature or that the woman was living as a concubine of the appellant even before her marriage it was held that the appellant cannot be presumed to be the father of the child. 53 41 Rahmat Ali v. Mustt. Allahdi, (1883) PR No. 1 of 1884 (Civil) Uttamrao Rajaram v. Sitaram, (1962) 64 Bom LR 752. 42 Ghulam Mohy-ud-din Khan v. Khizar Hussain, (1928) 10 Lah 470Misir Bhairon Prasad v. Gopi Kunwar, (1930) 32 Bom LR 871, PC. 43 Narendra v. Ram Govind, (1901) 4 Bom LR 243 : ILR 29 Cal 11 29 IA 17; Karapaya Servai v. Mayandi, ILR (1933) 12 243 : 36 Bom LR 394 (PC). 44 Uttam Rao v. Sitaram, AIR 1963 Bom 165. 45 Maganlal v. Bai Dahi, AIR 1971 Guj 33 relying on Uttam Rao v. Sitaram, AIR 1963 Bom 165; Wood v. Wood, (1947) 2 All ER 95. 46 Zahoor Ahmed Pampori v. Nadia, 2003 CrLJ 1393, 1394 (para 7) (J&K) : 2003 (2) DMC 421 : 2003 (3) Rec Cr R 35. 47 Ponnamal v. Andi Aiyan, AIR 1953 Tra/Co. 434. 48 Triloke Nath v. Lachmin, (1903) 30 IA 152 : ILR 25 All 403 : 7 Cal WN 617 (PC). 49 Tirkangauda v. Shivappa, AIR 1944 Bom 40. 50 Madanlal v. Sudesh Kumari, 1988 Del 93; D.M. Raju v. Sarah Janaki, (162 days after first coitus) AIR 1974 Mys. 61.

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51 Rangaswamy v. Nagamma, AIR 1973 Mys 178, 183. 52 Assia v. Ayidru, (1974) 2 Ker ILR 295 relying on Mulasingh v. Emperor, AIR 1924 Lah 413; Sibt Mohammad v. Mohammad Hameed, AIR 1926 All 589. Ponnammal v. Andi Aiyyan, AIR 1953 Tra/Co. 434; Clark v. Clark, (1939) 2 All ER 59. 53 Ponnuswamy Reddiar v. Vasantha, (1967) 1 MLJ 102.

7. UNLESS IT CAN BE SHOWN THAT THE PARTIES TO THE MARRIAGE HAD NO ACCESS TO EACH OTHER Under the section the child born in wedlock should be treated as the child of the person who was at the time of its birth, the husband of the mother, unless it is shown that he had no access to the mother at the time of its conception quite irrespective of the question whether the mother was a married woman or not at the time of the conception. 54 Where the wife was pregnant on the date of marriage and the husband had no access to the wife before marriage, there was no question of calling in aid the presumption under Section 112. 55 By 'having no access' is meant having no opportunity of sexual intercourse, and in order to displace the conclusive presumption it must be shown that no such opportunity occurred down to a point of time so near to the birth as to render paternity impossible. To rebut the legal presumption under this section, it is for those, who dispute the paternity of the child, to prove non-access of the husband to his wife during the period when with respect to the date of its birth, it must, in the ordinary course of nature, have been begotten. 56 Mere fact that the husband and wife were residing separately in close proximity of distance, is not sufficient to prove non-access. 57 The Supreme Court observed "The presumption, which Section 112 contemplates, is a conclusive presumption of law which can be displaced only by proof that the particular fact mentioned in the section namely non-access between the parties to the marriage at a time when according to the ordinary course of nature the husband could have been the father of the child." 58 Access and nonaccess connote existence and non-existence of opportunity for marital intercourse. Non-access can be established not merely by positive or direct evidence, it can be proved undoubtedly like any other physical fact by evidence, either direct or circumstantial, which is relevant to the issue, though as presumption of legitimacy is highly favoured by law it is necessary that proof of non-access must be clear and satisfactory. 59 The non-access would include incapability of access on account of impotency, want of virility because of immature age or other physical incompetency. 60 The presumption can be rebutted only if the marriage of the parents is shown to be invalid or the parties to the marriage had no access to each other at any time when the child could be begotten. The presumption would stand rebutted if it is shown that the husband had severed all physical relations with the wife. 62

61

The standard of proof of non-access is similar to that in a criminal case. It is upon the person who claims to be the legitimate issue of his parents to bring forward satisfactory evidence in support of their marriage. 63 Even where the husband and wife were living apart in the same village long before the birth of the child, unless the husband is able to establish absence of access, presumption raised under the section will not be displaced. 64 The principle of this section does not apply to the case of a paramour and the presumption can be rebutted when the mother of the child is not a wife but a mistress and it may be open for the mistress to prove that the real father of the child born during the period of her concubinage is different from her paramour. 65 Where a wife came to her husband's house a few days before he died and remained there up to the time of his death and it was shown that a child alleged to be that of her husband was the child of the

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wife and that it was born within the time necessary to give rise to the presumption under this section, it was held, in the absence of any evidence to show that the husband could not have had connection with his wife during the time she was residing with him, the presumption as to the paternity of the child given by this section must prevail. The fact that the husband was during the period within which the child must have been begotten was suffering from a serious illness which terminated fatally shortly afterwards was held, under the circumstances, not sufficient to rebut the presumption. 66 A child was born after marriage but before gauna or bidai (departure to husband's place). It was held that there was no presumption of legitimacy unless proof of access was offered. 67 Merely because the husband was suffering from a serious illness, it is not a sufficient reason for holding that the presumption which arises under Section 112 cannot be attracted. 68 Access means effective access and therefore physical incapacity to procreate is non-access. Where non-access on account of immature age is alleged it would be necessary to prove first the precise age of the husband on the date of conception and secondly to negative the possibility of premature virility at that age owing to precocious development. Without such proof non-access based on the alleged incapacity of the husband cannot be made out. 69 To repudiate the presumption it must be proved that the access was impossible on account of impotency, serious illness or it must be shown by very convincing evidence that though opportunity existed there was no sexual intercourse during the period the child could have been begotten. 70 The husband has to prove that it was physically impossible for him to have cohabited with his wife during the time in which the child was conceived. 71 A youth of 15 years was held not-incapable of procreation.

72

In a case the parties married in 1969, the husband underwent vasectomy operation on 8-1-76, both were living together and the wife gave birth to a child on 30-8-1978, it was held that the husband had not proved that in or about November 1977, when the child was conceived, he was unable to procreate. So the child should be presumed to be legitimate. 73 When there is no satisfactory evidence that even during the period the wife was living with another person, her husband had nothing to do with her, it was held that children born must be presumed to be the children of the husband. 74 Where a child was born on 13-5-1949 and divorce was obtained on 30-5-1949, and the father filed petition for divorce on the ground of the wife's immoral life, it was held that in the absence of satisfactory evidence of non-access between the parents during the pendency of the divorce petition this section is applicable and the finding about the legitimacy of the child was correct. 75 The presumption of legitimacy under Section 112 will not be displaced by the mere fact that the husband and wife were living apart in the same village long before the birth of the child, unless the husband is able to establish the absence of access, when the child could have been begotten. 76 Where the wife was living with her parents during 11/2 years before the birth of the child and the parents house was only two miles away from the husband's village it was held that it is reasonable to assume that the husband had opportunity of intercourse, and so the presumption remained unrebutted. 77 When there is no evidence to demonstrate that the husband had no access to his wife when the child could have been begotten, the DNA test of a minor child could be allowed on the basis of vague pleadings that he was on duty at the border while his wife might have conceived. 78 Where it is shown that during the time the child could have been begotten the husband was out of India no presumption of legitimacy can arise and an admission by the wife in her husband's divorce petition that, the child was born to her husband can be of no avail. 79 Where the wife left for England on 11-6-53 and she gave birth in England to a male child on 12-5-54 and during that period the husband never left the shores of India it was held that it was impossible for the husband to have access to her and so the husband was not the father of the child. 80 Where the child was born two years after the husband and wife separated and it was proved they had no access after separation, it was held that the presumption stood rebutted. 81 Child born 334 days after the parents were proved to have had no matrimonial intercourse was held illegitimate as there was no access by the husband, during the period which the child could have been begotten. 82 Desertion for a period of two years resulted in a divorce; the wife gave birth to a child during that period; the husband pleaded 'no access' as she had gone to a village remote from Delhi, and he went there only once with a barat (Marriage party) and was beaten up by in laws. Held, he had discharged the burden of proving non-access and, therefore there was no presumption of legitimacy. 83

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Presumption of legitimacy is available when the evidence is conflicting between the husband and the wife as to their common residence and accessibility to wife is not completely ruled out. 84 Even if it is proved that the mother committed adultery with a number of men it will not of itself suffice to prove the illegitimacy of the child if she had access to her husband during the time the child could have been begotten. 85 In the absence of proof of non-access, even though wife was living apart and leading an unchaste life the child would be deemed to be legitimate. 86 If the husband has had access, adultery on the wife's part will not justify a finding that another man was the father 87 but where there was evidence that the mother of the child had illicit intimacy with a certain person, to prove illegitimacy of the child, it should be established that such a person had opportunity of access to her at the time of conception as in the instant case she was working in the house of that certain person, moving closely with the inmates and helping him in hotel business which was held to be sufficient to show, he having opportunity of access to her. 88 Where there may be an opportunity to have access still the husband can prove that there was no act ual cohabitation. 89 Where wife and husband are living in the same room it should be presumed that the pregnancy was due to cohabitation with the husband. 90 Where the consummation of marriage and access between the husband and wife were admitted and the medical opinion supported the wife, legitimacy of child would be presumed. 91 Where there was a family custom that husband and wife will have no coitus unless particular ceremony is performed and when it was not performed, but the husband and wife were living under the same roof four months together, it was held that nonperformance of ceremony was not proof of non-access. The onus lies heavily on the person alleging illegitimacy and non-access may be proved by legal evidence admissible to prove any other physical act. 92 A woman married a man in September, 1903; the marriage was dissolved in May 1904; she married another in June, 1904 a son was born to her in September, 1904 during the continuance of her marriage with her second husband. It appeared that the latter had access to her during her first marriage. In a suit by the son to recover the property of the second husband on his death, it was contended that the plaintiff was not the legitimate son of the second husband. It was held that the plaintiff was in law the legitimate son of the second husband of the woman, and was entitled to his properties. 93 The question for decision was the paternity of the defendant, who was born of one H on October, 17, 1919; i.e., two hundred and seventy nine days after January 10, 1919, the date of the death of her first husband. She had entered into a second marriage on February, 25th, 1919 with another and defendant was born during the continuance of that marriage. It was held that as this section referred to the point of time of the birth of the child as the deciding factor and not the time of conception of that child, the presumption was that the second husband was the father of the defendant. 94 Where a married woman married a second time claiming that her first marriage has been dissolved and begot a child while she was living with her second husband and when it was found that her first marriage was not legally dissolved and it was subsisting in the eye of law and where there is evidence to show that her first husband had no access to her at the time when the child was begotten by her, it was held that the child was the progeny of the person with whom she was living (Second husband). 95 54 Palani v. Sethu, (1924) 47 Mad 706; Palsingh v. Jagir, (1926) 7 Lah 368; Ratne v. Kasturi, AIR 2006 (NOC) 747(Kant) : 2006 AIHC 994; Usman v. Badarunisa, AIR 2007 (NOC) 371(Ker) . 55 P.V. Sabu v. Mariakutty, AIR 1998 Ker 86 at pp. 20-24. 56 Narendra v. Ram Govind, (1901) 4 Bom LR 243 : 29 Cal 111 : 29 IA 17; Karapaya Servai v. Mayandi, (1933) 12 Ran 243 : 36 Bom LR 394(PC) ; Bhima v. Dhulappa, (1904) 7 Bom LR 95; Bhagwan Baksh Singh v. Mahesh Bokksh Singh, (1935) 38 Bom LR 1(PC) . 57 Satya Devi v. Brij Lal, 1996 AIHC 5006 (paras 10 and 13) (HP), child born within 7 months from time husband had come on leave, held legitimate. Husband failed to prove non-access, presumption, Yadav Nand v. Asha Rani, AIR 2009 (NOC) 500(HP) ; Prasanta Banerjee v. Tandra Banerjee, AIR 2009 (NOC) 810(Cal) ; Ramroop Rathore v. Rajkumari, AIR 2009 MP 82, 83-84 (para 12). 58 Chilukuri Venkateswarlu v. Venkatnarayana, AIR 1954 SC 176. See also Kamleshwar Prasad Chaukiyal v. Madhuri Devi, AIR 2008 (NOC) 1050(Utr) .

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59 Krishnappa v. Venkatappa, AIR 1943 Mad 632; Hanumantha Rao v. Ramachandrayya, AIR 1944 Mad 376; Vira Reddy v. Kistamma, AIR 1969 Mad 235; Mohinder Kaur v. Narindar Singh, AIR 1960 Punj. 169. 60 Rozario v. Ingles, (1893) 18 Bom 468. 61 Abdulla v. Beepathu, (1967) 1 Ker 361; Boramma v. Dharamappa, AIR 1969 Mys 17. 62 Thimmakku v. B. Rangappa, AIR 1977 Kant. 115. 63 Thakur Amjal v. Nawab Ali Khan, (1906) 9 Bom LR 264(PC) . 64 Perumal Nadar v. Ponnuswami Nadar, AIR 1971 SC 2352; Ammathayee v. Kumaresan, AIR 1967 SC 569. 65 Maina v. Deorao Sonaji, 1942 Nag 383. 66 Narendra Nath Pahari v. Ram Gobind Pahari, (1901) 29 Cal 111(PC) : 29 IA 17. 67 Baj Rangi v. Dy. Dr. of Consolidation, AIR 1982 All 335. 68 Mallappa v. Guramma, (1965) Bom 129; reversed on another point in Guramma v. Mallappa, AIR 1964 SC 510; Jothindranath Chowdary v. Dwarakanath Day, (1893) 20 Cal 111(PC) . 69 Bhagwan v. Mahesh, 40 Cal WN 360 PC; Jagannatha v. Chinnaswamy (Held actual cohabitation or sexual intercourse amounts to access) 61 MLJ 878; Shivajirao v. Bapurao, AIR 1957 MP 174; Appu v. Danley, 1963 Ker LT 1038 : 1963 Ker LT 1002; Gopalan v. State of Kerala, (1962) 2 Ker LT 138; Kumhiraman Nair v. Annakutty, (1967) 1 Ker 116; Madavan Sukumaran v. Prushpavathi, (1975) 1 Ker 222. 70 Puran v. Angoori, (1976) 2 Del 337. 71 Durghatia v. Ayodhyaprasad, (1963) Vin Pra 28. 72 Sm. B. Veragam v. Manoranjan Samanta Kumar, ILR (1963) Cut. 415. 73 Chirutha Kutty v. Subramainan, AIR 1987 Ker. 5. 74 Kundan Singh v. Hardan Singh, AIR 1953 All 501. 75 M.M. Khan v. S.A. Khan, (1971) 3 SCC 810; Janamma v. Kuttappa Panicker (Child born 18 days after the date of dissolution) relying on Venkateswarlu v. Venkatnarayana, AIR 1954 SC 176; Karapaya Servai v. Mayandi, 1934 PC 49; Krishnappa v. Venkatappa, AIR 1943 Mad 632. 76 Perumal v. Ponnuswami Nadar, AIR 1971 SC 2352; affirming Seethalaxmi Ammal v. Ponuswamy Nadar , ILR (1966) 2 Mad, 373; Venkateswarlu v. Venkatanarayana and relying on AIR 1954 SC 176; Ammathayee v. Kumaresan, AIR (1967) SC 569; Karapaya Servai v. Nayandi, AIR 1934 PC 49; Ramachandra v. Ramsurat, (1982) All LJ 1355; Kasthuri v. Ramasamy, 1979 CrLJ 741 : 1980 Mad LJ 125(Cri) ; Dhedu Sheoram v. Malhanbai, AIR 1966 MP 252; Raghavan v. Gouri Kitty Amma, AIR 1960 Ker 119. 77 Sehanlal v. Dharampati (Smt.), (1967) HP 38. Husband failed to prove non-access, presumption of paternity, Bhikham Ram v. Lata Devi, AIR 2008 (NOC) 2858(HP) . 78 Heera Singh v. State of U.P, 2005 CrLJ 3222, 3224, (para 7) (All) : 2005 All LJ 2147, following Kanti Devi v. Poshi Ram, AIR 2001 SC 2226 : 2001 SCC 892(Cri) . 79 Parameswaran Nair v. Janaki Amma, AIR (1972) Ker 80; referred to Venkateswarlu v. Venkatnarayana, AIR 1954 SC 176; Karapaya v. Mayandi, AIR (1934) PC 49. 80 Raymond Francis Isar v. Roma Jyotrimoi Isar, ILR 1957 Punj 181(SB) . 81 Paras Ram v. Dayal Das, AIR 1965 HP 32. 82 Howe v. H., 38 Mad 466. 83 Ram Kishan Singh v. Savitri Devi, AIR 1982 Del 458. 84 1972 Ker LT 512 : 1972 Mad LJ 549(Cri) . 85 Vasu v. Santha, 1975 Ker LT 533. 86 Krishnappa v. Venkatappa, AIR 1943 Mad 632.

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87 Nga Tun E. v. Michou, (1914) 2 UBR 23; Jagannatha Mudali v. Chinnaswami Chetti, (1931) 55 Mad 243 : AIR 1932 Mad 39. 88 Oona Gowri Shankara Rao v. Oona Rajeshwari, 1996 CrLJ 1158 (para 9) (AP). 89 Kasi Ammal v. Ramasami Reddiar, AIR 1949 Mad 881. 90 Sew Kumhar v. Mongru Kumharin, AIR 1959 Cal 454. 91 Devesh Pratap Singh v. Sunita Singh, AIR 1999 MP 174 (para 12). 92 Dhedu Sheoram v. Malhanbai, AIR 1966 MP 252. 93 Palani v. Sethu, (1924) 47 Mad 706 : AIR 1924 Mad 677 on appeal, Sethu v. Palani, (1925) 49 Mad 553 : AIR 1926 Mad 628. 94 Pal Singh v. Jagir, (1926) 7 Lah 368 : AIR 1926 Lah 529 (2). 95 Appu v. Danley, 1965 Mad LJ 215(Cri) : 1963 Ker LT 1038.

8. EVIDENCE OF HUSBAND AND WIFE Reading S. 120 with this section it is clear that there is no prohibition of the parents of a child from deposing whether or not they had at any time, when the child would have been begotten, access to one another. 96 The principle of English Common Law according to which neither a husband nor a wife is permitted to give evidence of non-access, after marriage to bastardise a child born in lawful wedlock, does not apply to legitimacy proceedings in India. 1 According to the Bombay High Court a wife can be examined to prove non-access of her husband during her married life, without independent evidence being first offered to prove the illegitimacy of the children 2 . The Bombay High Court has also held that the rule of English law laid down in Russell v. Russell 3 that the declaration of a father or mother cannot be admitted to bastardise the issue born after the marriage is not applicable in India 4 . The Madras High Court has held that the wife is a competent witness to prove access or non-access by her husband 5 . The Allahabad High Court has held that the English rule that such evidence is inadmissible because it is evidence which tends to bastardise the child is not applicable to the Courts in India; there is nothing in the Indian Evidence Act which renders this evidence inadmissible. In a suit for divorce by the husband on the ground of the wife's adultery, alleged to be established by the fact of her having given birth to an illegitimate child, evidence by the husband of non-access to the wife at any time when the child could have been begotten is admissible; and an admission by the wife that the child is illegitimate is also admissible in evidence6 . The Calcutta High Court has similarly held that there is nothing in this section to show that the husband or wife is precluded from giving evidence in order to show that they had no access to each other at any time when the child could have been begotten. 7 The rule laid down in Russell v. Russell 8 has now been abrogated by the Law Reform (Miscellaneous Provisions) Act, 1949 (12, 13 & 14 Geo VI, c. 100), S. 7, which says that notwithstanding any rule of law the evidence of a husband or wife shall be admissible in any proceedings to prove that marital intercourse did not take place between them during any period. In case of presumption of a valid marriage the siblings would be legitimate and in case of inter-caste marriage they would belong to the caste of their father. 9 Where two persons lived as husband and wife for a long time and children were born from their co-habitation, it was held that it led a presumption as conclusive proof that they were husband and wife for all purposes and children born to them were their legitimate children. 10 A man and a woman lived together for a long period. However, they failed to adduce sufficient proof of their marriage. It was contended that merely because of that they could not take an alternative plea of presumption of marriage available to them under Sections 112 and 114 of the Evidence Act. It was held that there appeared to be no legal embargo in respect of

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such alternative plea based on presumption available under Sections 112 and 114 of the Evidence Act only because evidence was adduced in respect of the fact of marriage. 11 96 Hanmantha Rao v. Ramachandrayya, AIR 1944 Mad 376; Kasi Ammal v. Ramasami Reddiar, AIR 1949 Mad 881; Doutre v. Doutre, AIR 1939 All 523; King v. King, AIR 1945 All 190; Sane v. D.S. Sonavene and Co., AIR 1946 Bom 110; Shantabai v. Dalchand, ILR (1954) Nag 204 : AIR 1953 Nag 374. 1 Venkateswarlu v. Venkatanarayana, AIR 1954 SC 176 : 1954 SCR 424. 2 Rozario v. Ingles, (1893) 18 Bom 468. 3 (1924) AC 687. 4 Bai Kamala v. Babubhai, (1925) 28 Bom LR 607 : AIR 926 Bom 348. 5 Mayandi Asari v. Sami Asari, (1931) 55 Mad 292 : AIR 1932 Mad 44. 6 Doutre v. Doutre, ILR (1939) All 573 : AIR 1939 Mad 522; Hargovind Soni v. Ram Dulari, AIR 1986 MP 57, proof of adultery and presumption of legitimacy. 7 Shyam Singh v. Saibalni Ghosh, (1947) 1 Cal 9 : AIR 1947 Cal 183. 8 1924 AC 687. 9 Sobha Hymavathi Devi v. Setti Gangadhara Swamy, AIR 2005 SC 800 (para 6, 7 and 12) : (2005) 2 SCC 244. 10 Madhavan Balasundaram v. Madhavan Sarasamma, AIR 2004 Ker 79, 81 (para 6) : 2004 (2) Marri LJ 283. 11 Chandrabhagabai Ganpati Karwar v. Sambhaji Narhari Karwar, AIR 2007 Bom 201, 203-04 (para 11).

9. PRESUMPTION OF MARRIAGE AND PATERNITY OF CHILD Where a Muslim male and a Hindu woman lived together under one roof as husband and wife, marriage could be presumed from their long and continued cohabitation. The birth extract showed the Muslim male as father and the Hindu woman as mother of the child born to them which was held to be a relevant proof of his paternity. 12 A man and a woman cohabited for considerable period of time as husband and wife and were regarded so and children born to them were acknowledged as their children as were described so in the ration card, voters' list and the school register. The Court held that there was a strong presumption that the children were legitimate and were entitled to inherit properties of their parents along with children born in valid marriage. 13 12 Shamsudeen M. Illias v. Mohammed Salim M. Idris, AIR 2008 Ker 59, 61-62 (paras 9 and 10). 13 Jane Antony v. V.M. Siyath, AIR 2009 (NOC) 816(Ker) .

10. PROOF It was held that an extract of the birth register containing the name of the mother and the information given by her about the father would not be binding on the presumed father. 14 However, other documents like the High School Certificate, conduct certificate and other certificates wherein the said person had been described as father could be relied upon as those documents owed their origin to times when the present litigation was not contemplated. 15 An entry in the birth register containing the name of the mother only, does not warrant the inference that the child was not legitimate. 16 14 Mahadevrao v. Yasode Devi, 1961 Mad 141. See also Dibakar Behera v. Padmabati Behera, AIR 2008 Ori 92, 94 (para 8). 15 Dibakar Behera v. Padmabati Behera, AIR 2008 Ori 92, 94 (para 8).

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16 Manicka Mudaliar v. Ammakunnu, AIR 1942 Mad 129.

11. MAINTENANCE Duty lies on a person having sufficient means to maintain his legitimate or illegitimate minor child. It is immaterial whether the child is legitimate or illegitimate and it is not necessary to elicit finding about legitimacy or illegitimacy of a child. 17 The mother can claim maintenance for her child from her paramour if he could prove that she was exclusively under his control and that her husband had no access to her even if the marriage was subsisting. 18 Where in the birth certificate, the name of the petitioner was mentioned as father and the election identity card showed the mother of the child and the petitioner as husband and wife, it was held that it was established that the petitioner was the child's father and the child, though illegitimate, was entitled to maintenance. 19 Despite the subsistence of marriage, child could be proved to have been born to a paramour. Otherwise the husband would be compelled to maintain the child as legitimacy has to be presumed. 20 It is not quite impossible for children born to a married woman to be legally held to be the progeny of the paramour. If that is proved the paramour has to pay the maintenance to the child. 21 Where the wife and husband were living together for 5 years and the husband drove her out doubting her chastity on the basis of anonymous letters, the wife and children were held entitled to maintenance and the presumption regarding the children's legitimacy arises under Section 112. 22 In a case a daughter, born during the pendency of petition for maintenance by the wife, claimed maintenance from her father but he denied paternity. Evidence showed that the wife was pregnant when she left the husband's house and the husband failed to prove her having any illicit relation with anyone. He had admitted her paternity in an earlier petition. Besides, there was other evidence supporting her claim. It was held that she was entitled to maintenance. 23 In maintenance proceedings, the party disputing the paternity of the child has to prove his non-access to the mother of the child during the relevant time in order to dispel the presumption under Section 112 of the Evidence Act by leading strong preponderance of evidence and not by mere filing a petition for determining the paternity by medical test i.e. DNA. 24 Where a child was born after ten months of the solemnization of marriage between the parties which was sufficient time regarding birth of child out of valid marriage and the husband disputed the paternity of child in a maintenance case under Section 125 CrPC , it could not be justified to suspect the chastity of the wife on the basis of mere accusation of the husband unless there was very strong evidence before the Magistrate in respect of unchastity of wife or her continuous adulterous life. 25 Where in a case for maintenance the parentage of the minor child was in question as the defendant had denied to be the father of the minor child, it was held to be proper to direct the defendant for DNA Test along with minor child and his mother. 26 Where the documents filed by the defendant showed that minor's mother was married to someone else and the father's name of the minor was given as of that other one and the said documents were not disputed by the plaintiff/minor, no case for direction of DNA test before leading evidence by the plaintiff was made out. 27 17 Alok Banerjee v. Atoshi Banerjee, 2008 CrLJ 689(NOC) (All) : 2008 (2) ALJ 560. 18 Chathu-kutty v. Janaki Amma, 1972 CrLJ 696(Ker) ; following Sreenivasan v. Kurubai Ammal, AIR 1957 Mad 160; Kalla Maistry v. Kanniammal, AIR 1963 Mad 210; Munuswamy v. Usha Rani, 1975 Mad LW 240(Cri) (Mad) ; Raghavan v. Gouri-kutty Amma, AIR 1960 Ker 119. 19 K. Vijayakumar v. V. Devaki, 2008 CrLJ 567(NOC) (Mad) . 20 Sivadasan v. Govindan, 1985 CrLJ 1553(Ker) . 21 Narayana Menon v. Bharathi Amma, 1964 MLJ 390(Cri) : 1962 Ker LT 138.

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22 Chakor v. Prerna, (1985) 1 Hindu LR 485(Bom) . 23 Alpana v. Mohanlal, 1993 CrLJ 1008(HP) . 24 Didde Sundara Mani v. Didde Venkata Subbarao, 2005 CrLJ 3618, 3619 para 6(AP) relying on Banarsi Dass v. Teeku Dulta, (2005) 4 SCC 449. 25 Partha Majumdar v. Sharmistha Majumdar, 2005 CrLJ 3834, 3838 (para 15) (Cal). 26 Kanchan Bedi v. Gurpreet Singh Bedi, AIR 2003 Del 446, 448. On this point H.C. has at length its earlier decision and that of the Apex Court. 27 Master X v. Y, AIR 2003 Del 195, 198. Distinguishing, 'X' v. 'Z', AIR 2002 Del 217.

12. BLOOD TESTS; DNA FINGER PRINTING It is now usual whenever a question of paternity of a child arises, to direct the use of blood tests. Such evidence is of great value in issues concerning the paternity of a child. Blood groups according to scientist have a causative relation between the trait of the progenitor and that of the progeny. In other words the blood composition of a child may be of some evidence as to the childs' paternity. A detailed study of the scientific process is given in W IGMORE ' S EVIDENCE (III Edition) at page 168. In B. v. Attorney General 28 , O RMROD J. referred to the blood groups in the blood analysis and found that the blood group of the person alleged to be the father and of the child were entirely inconsistent and that it was for the expert who did the tests to say positively that the child was not the son of the alleged father. C OMROD J. observed that such a test saves the court from having to rely on the presumption regarding paternity. In F v. F 29 in a divorce proceeding by the husband on the ground of the wife's adultery the question of paternity of a child was in issue. On the medical evidence based on the test of blood samples, it was held that the child was not the child of the husband and hence the wife had committed adultery. Where the issue of paternity of the child was also a necessary issue for effective adjudication of the controversy in between the parties, the Court held that it was a deserving case where the DNA test could be directed to be conducted and declined to interfere with order of the lower Court to that effect. 30 In, In re : Le 31 it was held that the court had power to order an infant to be subjected to a blood group test notwithstanding that the guardian ad litem did not consent. In S v. S 32 the House of Lords held that the refusal of the guardian to have the child's blood tested was improper for it was in the interests of the child and also of justice that the court should have before it the best evidence available including modern scientific evidence provided by blood which might resolve the issue conclusively. At present in England the aspect of evidence is controlled by the Family Law Reforms Act, 1969 which provides for obtaining of blood test evidence in any case where paternity is in issue. The blood group tests are useful only to exclude the possibility that a man is the father. Sophisticated blood tests are now being adopted which are so advanced as capable of providing a very high or low probability of paternity. Tests made of the DNA (Deoxy Ribo Nucleic Acid in blood or other bodily substances or tissues) can provide what can practically be regarded as certainty in paternity cases. The technique is known as 'finger printing'. The essential difference between conventional blood tests and DNA 'finger printing' lies in the extremely polarised possibilities. If a man is not the father of the child, the odds of failing to get an exclusion in such a case are roughly 30,000 millions to one. If the man matifies the child in blood group, even then odds that he is not the father are of a similar magnitude. The probabilities are of such an astronomical scale that they reduce the results to absolute certainty. The process however is said to be very labour intensive and needs meticulous expertise and much experience and it also takes several days to complete (See - DNA Finger Printing and the Law by R OBIN M W HITE and J EREMY J.D. Greenwod - 51 (1988) Modern Law Review P. 145. 28 (1966) 2 All ER 145. 29 (1968) 1 All ER 242.

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30 B. Vandana Kumari v. P. Praveen Kumar, AIR 2007 AP 17, 21 (paras 30-32). See also V.K. Bhurvaneswari v. N. Venugopal, AIR 2007 (DOC) 158(Mad) ; Radhey Shyam v. Pappi, AIR 2007 Raj 42, 46 (paras 20, 21); Mothyukuri Shivakumar v. Mothukuri Narayanamma, 2008 CrLJ 4183, 4185 (para 8) (AP); Veeran v. Veeravarmalle, AIR 2009 Mad 64, 67 (paras 16 and 17). 31 (1968) 1 All ER 20; B.R.B. v. J.B., (1968) 2 All ER 1023. 32 1972 AC 24.

13. BLOOD GROUP TESTS AND DNA FINGER PRINTING CANNOT BE USED It is however doubtful whether blood group tests or DNA 'finger printing' can be made use of in cases governed by Section 112. Section 112 provides "the fact that any person was born during the continuance of a valid marriage between his mother and any man during the substance of the marriage or within 280 days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man unless it can be shown that the parties to the marriage had no access to each other when he could have been begotten" but where consummation of marriage and access between the husband and wife were admitted, no adverse inference could be drawn against the wife for refusing to submit to DNA Test though due to her personal problem. 33 Where there was no evidence to show non-access and the husband refused to undergo DNA test, adverse inference could be drawn again him in a case to determine the paternity of the child for the purposes of grant of maintenance to wife. 34 Considering the imperfection of science on this subject, a Division Bench of Calcutta High Court refused to allow blood test to determine paternity. 35 Thus the only way the conclusive proof can be rebutted is by proving non-access. No other method of rebuttal is permissible under the Act. It was observed: "The conclusive presumption of law under Section 112 can be displaced on strong, distinct satisfactory, and conclusive evidence of non-access between the parties at the time when the child would have been begotten. The court cannot base a conclusion on evidence different from that required by law or decide on balance of probabilities which will be the result if blood test evidence is accepted. Further blood test is a constraint on personal liberty of a person and therefore cannot be carried out without his consent, though there is no illegality in refusing a blood test and at the most, adverse inference can be drawn in case of refusal. It therefore, follows that blood tests or DNA 'finger printing' test may not be admissible in cases under Section 112 as one more method of rebutting the conclusive proof cannot be introduced into Section 112. 36 In view of the provision of Section 112, there is no scope of permitting the husband to avail of the blood test for dislodging the presumption of legitimacy and paternity arising out of this section. 37 DNA test is not to be directed as a matter of routine and only in deserving cases such a direction can be given. 38 Where the petitioner disputing the paternity of the child after fourteen years of marriage sought for DNA test stating that the marriage was never consummated and child born by his wife was not conceived through him, it was held that the petitioner had not made out a strong prima facie case to go through medical test or give sample of blood for DNA test. 39 Blood group test to determine the paternity of a child born during wedlock is not permissible. 40 It is therefore, suggested that a proviso on the following lines may be added to Section 112. "Provided that this will not preclude evidence of blood samples or bodily specimens to be taken to show that a person is or is not excluded from being the father of another person". It is also necessary to confer powers on the courts to have such tests conducted. It is to be noted that Art 20(3) of the Constitution does not come into play except in criminal cases. The Supreme Court laid down the following as to the permissibility of the blood test to prove the child's paternity : 19)  

That the Courts in India cannot order blood test as a matter of course.

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18)   Wherever applications are made for such prayers in order to have roving inquiry, the prayer for blood test cannot be entertained. 9)   There must be a strong prima facie case in that the husband must establish non-access in order to dispel the presumption arising under Section 112. 6)   The Court must carefully examine as to what would be the consequence of ordering the blood test; whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman. 4)   No one can be compelled to give sample of blood for analysis. 41 The son also cannot be forced to undergo medical test to prove his paternity if he was born during lawful wedlock of his father and mother, more so when his mother was not alive. 42 In a case of grant of succession certificate, seeking of DNA test of the petitioner by the objector to establish petitioner's paternity on the ground that the parties had not been able to produce cogent evidence to establish their case, was held to be unsustainable as the petitioner could not be ordered to undergo for DNA test against her will. 43 When paternity of a child in civil proceedings can be decided effectively without resorting to DNA test, the DNA test cannot be directed in such proceedings. 44 The DNA test of a minor child cannot be conducted at the instance of the husband when it is refused by the mother of the child, she being her guardian. The Courts in the capacity of ad litem guardian of minor can also not direct such a test in absence of direct and positive evidence of non-access as required by Section 112 of the Evidence Act . 45 Merely because either of the parties has disputed a factum of paternity, it does not mean that the Court should direct DNA test or such other test to resolve the controversy. The parties should be directed to lead evidence to prove or disprove the factum of paternity and only if the Court finds it impossible to draw an inference or adverse inference on the basis of such evidence on record or the controversy in issue cannot be resolved without DNA test, it may direct DNA test and not otherwise. In other words only in exceptional and deserving cases where such a test becomes indispensable to resolve the controversy, the Court can direct such test. DNA test, in any case, cannot be directed as a matter of routine. The Courts should record reasons as to how and why such test in the case is necessary to resolve the controversy and is indispensable. In the instant case the wife alleged that her husband had married another woman and fathered a son from her. She sought to prove paternity of the child by DNA test which the trial Court allowed. The High Court held that the child and that another woman, not being parties to the suit, the DNA test could not be allowed, the same being violative of the principles of natural justice. 46 Where the accused was charged of raping a minor of whom a child was born, the DNA test of the child and the accused allowed by trial Court was held to be improper as the issue was not that of paternity or even of maintenance. Besides, even if the DNA test went in favour of the accused, he could not be absolved of the charge. 47 Direction for DNA test cannot be granted mechanically. Where no explanation was given for prayer for DNA test made in maintenance proceedingsafter a delay of eight years of the birth of the child, the Court refused to issue directions for the same. 48 Where the written statement filed by the husband showed that he had not denied the paternity of the children, the order directing the DNA test was held to be illegal in spite of the fact that the wife had no objection against the prayer of the husband for the DNA test. 49 33 Devesh Pratap Singh v. Sunita Singh, AIR 1999 MP 174 (para 14). 34 Usman v. Badrunisa, AIR 2007 (NOC) 371(Ker) . 35 Leelabati v. Kashinath, 73 CWN 19. 36 Vasu v. Santha, 1975 Ker LT 533. See also Ningamma v. Chikkaiah, AIR 2000 Kant 50 (paras 21 and 24); father denying paternity, can't be compelled to DNA Test, Syed Mohd. Ghouse v. Noorunnisa Begum, 2001 CrLJ 2028 (paras 8 and 9) (AP); Kamti Devi v. Poshi Ram, AIR 2001 SC 2226 (paras 4, 10 and 11); Heera Singh v. State of U.P., 2005 CrLJ 3222, 3224 (para 5 to 9) (All) : 2005 All LJ 2147; Teeka Dutta v. State, AIR 2004 Del 205, 207 (para 6) : 2004 (1) Cur CC 498 : (2004) 109 DLT 641 : (2004) 73 DRJ 9 : 2004 (1) Punj LR 35 : 2004 (15) Ind LD 374; Partha Majumdar v. Sharmistha Majumdar, 2005 CrLJ 3834, 3840 (paras 19 & 12) (Cal); Solaimuthu v. State, 2005 CrLJ 31, 33 (para 9) (Mad); Migada Varalakshmi v. Migada Srinivas, 2007 CrLJ 388(NOC) (AP) ; Kamleshwar Prasad Chaukiyal v. Madhuri Devi, AIR 2008 (NOC) 1050(Utr) .

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37 Gautam Kundu v. Shaswati Kundu, Criminal Revision No. 800/92 (Cal). See also Banarsi Dass v. Teeku Dutta, (2005) 4 SCC 449, 455 (para 14) 627; Findings of DNA expert upheld, Kamalanantha v. State of T.N., (2005) 5 SCC 194 (paras 58-65) : AIR 2005 SC 2132. 38 Banarsi Dass v. Teeku Dutta, (2005) 4 SCC 449, 455 (para 14). 39 S. Thangavelu v. S. Kannammal, AIR 2005 Mad 106, 107 (para 6). 40 Tushar Roy v. Sukla Roy, 1993 CrLJ 1659(Cal), distinguishing Bharti Raj v. Sumesh Sachdeo, AIR 1986 All 259 and Swati Lodha v. State of Rajasthan, 1991 CrLJ 939. 41 Goutam Kundu v. State of W.B., 1993 CrLJ 3233 (para 26) (SC) : AIR 1993 SC 2295, relied on in Sajeera v. P.K. Salim, 2000 CrLJ 1208 (para 15) (Ker) and Geeta Mishra v. Krishna Mohan Mishra, AIR 2009 (NOC) 1266(MP) . See also Alok Banerjee v. Atoshi Banerjee, AIR 2008 (NOC) 1574(All) . 42 G.M. Sudarshan Reddy v. Master Abhinay, 2000 AIHC 4981 (paras 8 and 11) (Kant). 43 Teeku Dutta v. State, AIR 2004 Del 205, 207 (para 7) : 2004 (1) Cur CC 498 : (2004) 109 DLT 641 : (2004) 73 DRJ 9 : 2004 (1) Punj LR 35 : 2004 (15) Ind LD 374. 44 Shaik Fakruddin v. Shaik Mohammed Hasan, AIR 2006 AP 48, 52 (para 14) relying on Banarsi Dass v. Teeku Dutta, 2005 (3) ALd 78(SC) . 45 Heera Singh v. State of U.P., 2005 CrLJ 3222, 3224 (para 9&10) (All) : 2005 All LJ 2147, relying on Gautam Kundu v. State of W.B., 1993 CrLJ 3233 : AIR 1993 SC 2295. 46 Sunil Eknath Trambake v. Leelavati Sunil Trambake, AIR 2006 Bom 140, 142-43 (paras 6 and 8). See also Joseph v. State of Kerala, AIR 2006 Ker 191. 47 Sabur Hossain Biswas v. State of W.B., 2008 CrLJ 1183. 48 Kuldeep Singh v. Joginder Kaur, AIR 2007 (DOC) 185(P&H) : (2007-1) 145 Pun LR 91. 49 Munmun Barkakati Das v. Girish Das, AIR 2008 Gau 186, 189 (paras 7, 8, 9).

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CHAPTER VII THE BURDEN OF PROOF S. 113. Proof of cession of territory. A notification in the Official Gazette that any portion of British territory has before the commencement of Part III of the Government of India Act,1935 (26 Geo. 5 Ch. 2), been ceded to any Native State, Prince or Ruler, shall be conclusive proof that a valid cession of such territory took place at the date mentioned in such notification. COMMENTS

This section was enacted to exclude inquiry by Courts of Justice into the validity of the act s of the Government so far as cession of territory to any Indian State was concerned. But the section is a dead-letter because it was declared to be ultra vires by the Privy Council in a case in which it was decided that the Governor-General-in-Council being precluded by 24 & 25 Vic. c. 67, S. 22, from legislating directly as to sovereignty or dominion of the Crown over any part of its territories in India, or as to the allegiance of British subject, could not, by any legislative Act, purporting to make a notification in the Government Gazette conclusive evidence of a cession of territory, exclude inquiry as to the nature and lawfulness of that cession 50 . The section now is obsolete. 51 50 Damodar Gordhan v. Deoram Kanji, (1875-1876) 3 IA 102 : (1876) 1 Bom 367. 51 Maganbhai Ishwarbhai Patel v. Union of India, AIR 1969 SC 783, 794. One of the effects of cession is that the inhabitants of the territory can enforce only such rights as the new sovereign recognised; Govindrao v. State of M.P., AIR 1982 SC 1201.

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CHAPTER VII THE BURDEN OF PROOF S. 113-A. Presumption as to abetment of suicide by a married woman. When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband. Explanation. --For the purposes of this section, 'cruelty' shall have the same meaning as in Section 498A of the Indian Penal Code (45 of 1860). COMMENTS

This section was inserted by the Criminal Law (2nd Amendment Act 46 of 83) with effect from 26-121983. This section states that when a married woman, if shown to have committed suicide within a period of seven years from the date of her marriage and her husband or relative of her husband had subjected her to cruelty, then the presumption arises that such suicide had been abetted by her husband or by such relative of her husband. It does not apply to other cases of abetment to commit suicide. 52 The explanation makes it clear that the expression cruelty shall have the same meaning as given in Section 498 -A of the Indian Penal Code . The Supreme Court observed: "The greed for dowry, and indeed the dowry system as an institution, calls for the severest condemnation. It is evident that legislative measures such as the Dowry Prohibition Act have not met with the success for which they were designed. Repeated instances are being highlighted in various newspapers in the country. There are also social organizations focussing the attention of public on this issue. To ventilate the grievances about atrocities on newly married brides due to dowry or other such similar demands from their husbands or in-laws, women social workers had taken up the cause in a movement in the country and due to the effective persuasion by such social compulsions, S. 498-A,I.P.C. and S. 113-A, Evidence Act, have been introduced on 25th Dec., 1983. The aforesaid provisions are obviously intended to cure the existing evil in the society. The evil at many times resulted in atrocities on married women and various acts of cruelty were being practised. No doubt, there were some provisions available in the Penal Code such as S. 306,I.P.C., but the instances were such which could not come to light due to their occurrence in the house of their in-laws. Naturally, the victims could not take recourse to public authorities to ventilate their grievances. After all, the social conditions, family traditions, etc., prevented the brides to take any recourse to public authorities. They could not even convey the atrocities to their parents. It is therefore to curb this social evil which resulted in atrocities on women that the aforesaid provisions are introduced."53 Though an initial presumption comes to the aid of the prosecution, the prosecution is not absolved of its duty or liability to establish the charges levelled against the deceased beyond reasonable doubt.

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This would only suggest that the husband or the relatives within whose knowledge such unnatural death has occurred must be able to explain how such death has occurred or what exactly was the cause of such death. It should be an explanation which would cause a dent in the evidence of the prosecution and it should be a reasonable one or it should be a reason acceptable to any reasonable and prudent mind. 54 This section applies even if the suicide took place prior to the insertion of this section 55 as this section is procedural in nature, it is retrospective in operation. 56 In the case of offence of abetment of suicide by a married women, past events of cruelty taking place prior to the amendment can be considered; it does not amount to giving retrospective operation to the amended provision u/s. 113-A. 57 Where the wife died within three months of marriage and the dead body was removed to another place and cremated without intimation to her parents and there was presence of poison on the mattress on which she was taken to another place, it was held that bail should be refused to the husband and others who were suspected at the stage anterior to the filing of the challan. 58 The wife was found dead in the verandah of her matrimonial home within seven years of her marriage under unnatural circumstances and all the inmates fled away from the house immediately after the occurrence. There was proof of physical and mental cruelty inflicted on her immediately before her death. It was held that Section 113-A was attracted. 59 If it is not established that the deceased had been subjected to cruelty, Section 113-A is not applicable. 60 In a case of harassment of wife for outstanding items of dowry, the demand was met and the matter was settled, one and a half months after which she committed suicide but there was no evidence of further demand or torture. It was held that the probability of existence of nexus between cruelty and suicide suffered a set back and it was unsafe and unjust to raise the presumption under this section. 61 A domestic quarrel took place between the deceased and her sister-in-laws over some milk and thereafter, they abused and dragged her to the courtyard. This was held to be not amounting to cruelty within the meaning of S. 498A,I.P.C. and the presumption under this section could not be raised.62 The deceased did not complain about harassment and cruelty to her mother who was nearest to her and the accused put forth the explanation that the deceased was short tempered and was not happy due to his poor financial condition which was held to be plausible though not proved and was accepted. 63 Where the prosecution was guilty of improving its case from stage to stage, it was held that the presumption under this section could not be invoked to find the accused guilty of the offence under Section 306 , IPC . 64 Where there is no direct evidence on record relating to harassment of wife by her husband and allegation of demand of dowry was either hearsay or was made in statement of interested/inimical witnesses, the presumption under Section 113-A cannot be raised. 65 In a case of abetment of suicide, where it was alleged that the death of the deceased was caused by administering poison by her husband and in-laws after eight years of her marriage, the presumption under Section 113-A of the Evidence cannot be formed. 66 Where it was alleged that the deceased wife had committed suicide within seven years of her marriage due to ill-treatment the accused by for not bringing additional dowry, in absence any proof of cruelty and harassment caused by the accused against the deceased, the presumption under Section 113-A of the Evidence could not be invoked against the accused. 67 In a case of suicide by the wife after 7 years of her marriage, the presumption under 113-A cannot be drawn against the accused for abetting his wife ill-treating her to commit suicide. 68 Where accused husband and in laws alleged to have demanded dowry and ill-treated the deceased wife who committed suicide, the prosecution failed to prove the offence under Section 304B the statement of the witnesses regarding the alleged harassment being narrated by the deceased was found not admissible in evidence, the presumption under Section 113-A of the Evidence Act would not be attracted. 69 Where the deceased wife committed suicide by consuming acid within seven years of her marriage, but there was no evidence of any demand of dowry or treating the deceased with cruelty by the accused at least during the period of three years before commission of suicide, the presumption under Section 113-A of the Act could not be availed as cruel treatment in the long past could not be abetement if such a course of conduct had not persisted soon before the commission of the suicide. 70 Where suicidal death of the wife had occurred within seven years of her marriage and there was ample evidence to show that the deceased was subjected to cruelty and harassment by her husband but there was no connecting link that said cruelty and harassment was in connection with the dowry as the prosecution failed to prove any agreement for dowry between the parties at or before or

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at any time after the marriage, more so when they lived happily for six months after their marriage, the presumption under Section 113-A or 113-B was held to be not attracted. 71 Where the suicide note of the deceased-wife does not anywhere suggest that she was subjected to cruelty for non-fulfilment of demand of dowry, the presumption of dowry death would not be available. 72 The presumption under this section cannot be taken where the marriage of the deceased was not solemnized within a period of seven years before her death. 73 The dead bodies of a married woman and her minor daughter were found in a well. There was no evidence to establish suicide and there was possibility of accidental death. No reliable proof that she died within seven years of marriage and unlawful demand of dowry and harassment. Evidence of cruelty for not meeting the demand was not reliable. Presumption could not be raised. 74 It must be proved that the wife was subjected to cruelty as defined u/s. 498-A, Indian Penal Code . Where the husband came late in the night after taking liquor daily inspite of the protests from the wife, it was held that that fact alone cannot be taken as cruelty, and that the essential ingredients of cruelty are not fulfilled in the case for raising the presumption. 75 But, drinking and coming late coupled with the fact of beating and demanding dowry amounts to cruelty and a presumption can be drawn under Section 113-A. 76 Where the death of the deceased was due to burns and she gave a dying declaration suggesting that her husband and mother-in-law consistently harassed, tortured and beat her for bringing inadequate dowry and it was corroborated by other relations of the deceased and when the death took place within seven years of the marriage, it was held a presumption under Section 113-A arises as to abetment. 77 Where the husband pressurised and harassed the deceased wife to part with the land received by her from her father as 'Stridhana', suppressed the postal mail of her relatives sent to her as he was the Branch Post Master in that village and when discovered and handed over by her to her father, she was driven out of the house and cruel treatments was done by him, she was driven to commit within sixteen months from her marriage, it was held that presumption under this section could be raised. 78 Where the wife of the accused committed suicide within seven years of her marriage and there was sufficient evidence to prove the ill-treatment by the accused towards his wife on suspicion of fidelity and that she became pregnant through some body else, the presumption under Section 113-A is liable to be drawn against the accused. 79 The wife met unnatural death within seven years of her marriage at the residence of the accused husband and the in-laws and the evidence showed harassment to the victim for not bringing sufficient dowry. The accused cremated her dead body without informing her parents/relatives which was not a natural conduct. The Court held that presumption under Section 113-A could be drawn. 80 The requirement of proof beyond reasonable doubt is not altered by the introduction of Section 498A,I.P.C. or Section 113-A of this Act .81 Presumption under this section is not mandatory. 82 Where the accused has been charged under Section 302 , IPC , the presumption under this Section is not available. 83 Presumption under Sec- tion 113-A is permitted to be drawn only considering the difficulty in securing specific evidence of the culpable conduct of abetment of suicide of the bride in the matrimonial home. The presumption has to be drawn carefully and cautiously and only when the necessary circumstances exist. It is not obligatory to draw the presumption. 84 52 Vedprakash v. State of M.P., 1995 CrLJ 893 (para 19) (MP). 53 Bhagawant Singh v. Commissioner of Police, AIR 1983 SC 826. 54 State v. Satish Shetty, 2008 CrLJ 2490, 2495 (para 9) (Kant). 55 Romesh Kumar v. State of Punjab, 1986 CrLJ 2087(P&H) . 56 Arvind Kumar v. State of M.P., 2001 CrLJ 2317 (paras 7 and 8) (MP). See also Neni v. State of Rajasthan, 2006 CrLJ 4527, 4533 (para 28) (Raj); Gurubachan Singh v. Satpal Singh, 1990 CrLJ 562 : AIR 1990 SC 209; Arvind Kumar v. State of M.P., (2007) 12 SCC 681, 686 (para 15) : AIR 2007 SC 2674. 57 Vasanta v. State of Maharashtra, 1987 CrLJ 901(Bom) ; following Sajjan Singh v. State of Punjab, AIR 1964 SC 464; (under the Prevention of Corruption Act). Contra :Om Prakash v. State of U.P., 2004 CrLJ 3939, 3948 (para 23) (All) : 2004 All LJ 2318 : 2004 (49) All Cr C 587 : 2004 (3) All Cr R 2737.

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58 Arjun Singh v. State of Rajasthan, 1987 CrLJ 610(Raj) . 59 Ananda Mohan Sen v. State of W.B., (2007) 10 SCC 774, 783-84 (para 38) : 2007 CrLJ 2770. 60 Shyama Devi v. State of West Bengal, 1987 CrLJ 1163(Cal) (DB); Ashok Kumar v. State of Punjab, 1987 CrLJ 1412(P&H) ; Basappa Dattu Hegade v. State of Karnataka, 1994 CrLJ 1602(Kant) ; State of M.P. v. Geetabai, 1998 CrLJ 2724 (para 20) (MP). Wife committing suicide with 5 years from the date of marriage, no proof of harassment by husband or in-laws, no presumption, Dhobilal v. State of M.P., 1998 CrLJ 4108 (para 12) (MP). Husband beating wife in the house of third person, more than seven years from marriage, wife committing suicide after 3-4 days, no presumption available, Chhagan v. State of M.P., 1998 CrLJ 2179, relying on State of Punjab v. Iqbal Singh, AIR 1991 SC 1532 : 1991 CrLJ 1897; Babaji Charan Barik v. State, 1994 CrLJ 1684 (paras 8 and 9) (Ori); Nandlal v. State of M.P., 2000 CrLJ 794 (paras 15-19) (MP). See also M. Srinivasulu v. State of A.P., (2007) 12 SCC 443, 450 (para 10) : AIR 2007 SC 3146; Sanjiv v. State of M.P., 2007 CrLJ 2020, 2023 (para 20) (MP). 61 Samir Samanta v. State, 1993 CrLJ 134 (paras 12 and 14) (Cal). The Court referred to Sharad Birdichand Sarda v. State of Maharashtra, AIR 1984 SC 1622 : 1984 CrLJ 1738 and Niharbala v. State, 1988 (2) Cal HN 398 : 1989 CrLJ NOC 38(Cal) . Also see State of Haryana v. Suresh Kumar, 1993 CrLJ 1400(P&H) . 62 Laxmi Bai v. State of M.P., 2000 CrLJ 3597 (para 4) (MP). 63 Sarwan Kumar v. State of H.P., 2000 CrLJ 4002 (paras 28, 30, 35, 38, 40 and 41) (HP). Evidence of harassment or cruelty not sufficient to hold that the deceased was driven to commit suicide because of it, State of Maharashtra v. Ashok Chotelal Shukla, AIR 1997 SC 3111 : 1997 CrLJ 3761. 64 Hans Raj v. State of Haryana, AIR 2004 SC 2790 (para 17) : 2004 CrLJ 1759. 65 G.K. Devarajulu Naidu v. State of A.P., 2004 CrLJ 4571, 4574 (para 10) (AP). 66 Pritam Singh v. State of Punjab, 2003 CrLJ NOC 119(P&H) : 2003 (1) Rec Cr R 784. Wife committing suicide in matrimonial home after 8 years of her marriage, no, presumption, Sitabai v. The State of Maharashtra, 2008 CrLJ 1032(NOC) (Bom) ; marriage having been solemnised 10 years before incident of death, no presumption, acquittal, Ashok Kumar v. State of NCT of Delhi, (2007) 5 SCC 712 : AIR 2007 SC 2311. See also Vithal Ziblaji Sonone v. State of Maharashtra, 2008 CrLJ 1020(NOC) (Bom) . 67 Penchaiah Sadaiah v. State of A.P., 2003 CrLJ 3827, 3829 (para 9) (AP) : 2003 (2) Andh LD (Cri) 332 : 2003 (2) Andh LT (Cri) AP 562; See also Rameshbhai Dalaji v. State of Gujarat, 2003 CrLJ 2445, 2448 (para 14) (Guj) : 2003 (2) DMC 746 : 2003 (2) Guj LH 657 : 2003 (3) Guj LR 2390 : 2003 (4) Rec Cr R 17; State of Rajasthan v. Kesa, 2002 CrLJ 432, 436 (para 29) (Raj) : 2002 (3) All CrLR 430 : 2002 (2) Hindu LR 206. 68 State of M.P. v. Ravindra, 2003 CrLJ 4361, 4364 (para 14) (MP) : 2003 (3) MPLJ 460 : 2003 (4) Rec Cr R 544; See also Malyala Vishwanatha Rao v. State of A.P., 2003 CrLJ NOC 11(AP) : 2002 (1) Andh LT (Cri) AP 499. 69 Public Prosecutor, High Court of A.P. v. T. Anand Kumar, 2004 CrLJ NOC 291(AP) : 2004 (2) Andh LD (Cri) 354. 70 Dwarika Prasad Soni v. State of M.P., 2002 CrLJ 1080, 1082 (paras 9 & 12) (MP) : 2002 (3) Cur Cr R 196 : 2002 (7) DMC 122 : 2002 (2) Hindu LR 720 : 2002 (1) MP HT 311 : 2002 (1) MPLJ 274. 71 Suvarnasingh Tirathsingh Dhanjal v. State of Maharashtra, 2006 CrLJ 185, 188 (para 15) (Bom). 72 State of M.P. v. Kantilal, 2006 CrLJ 26(NOC) (MP) . See also Pankaj Bibhuti v. State of Jharkhand, 2006 CrLJ 926, 929 (para 17) (Jhar); K. Amarnath v. State of A.P., 2008 CrLJ 487(NOC) (AP) . 73 Suresh Kumar alias Sushil v. State of Rajasthan, 2006 CrLJ 116, 120 (para 25) (Raj). 74 Ramesh Asaram Dhupe v. State of Maharashtra, 2006 CrLJ 260(NOC) (Bom) : 2006 (3) AIR Bom R 290. 75 Jagadish Chander v. State of Haryana, 1988 CrLJ 1048(P&H) . 76 Bikshapathi v. A.P. State, 1989 CrLJ 1186(AP) . 77 (1985) 12 Cr LT 310 (P&H); (1985) 12 Cr LT 156(P&H) ; Kodam Gangaram v. State of A.P., 1999 CrLJ 2181 (para 8) (AP); P.P. Rao v. State of U.P., 1994 CrLJ 2632 (para 17) (AP); Sanagala Yagna Sree v. State of A.P., 1996 CrLJ 1249 (paras 5-7) (AP), following State of W.B. v. Orilal Jaiswal, AIR 1994 SC 1418 : 1994 CrLJ 2104. The Court referred to C. Veerudu v. State of A.P., (1988) 2 Andh LT 171 : 1989 CrLJ NOC 52 and Munnu Raja v. State of Madhya Pradesh, AIR 1976 SC 2199 : 1976 CrLJ 1718; Saroj Satija v. State, 1996 AIHC 37 (para 11) (Del); Arjun Kushwah v. State of M.P., 1999 CrLJ 2538 (paras 11, 14 and 15) (MP); Anoop Kumar v. State of M.P., 1999 CrLJ 2938 (paras 25-31 and 33) (MP); Sayeed Miya v. State of M.P., 1999 CrLJ 4398 (paras 8-10) (MP); Pawan Kumar v. State of Haryana, 2001 CrLJ 1679 (paras 8 and 9) (SC) : AIR 2001 SC 1324; Arvind Kumar v. State of M.P., 2001 CrLJ 2317 (paras 13, 19 and 20) (MP); Ramphal v. State of Rajasthan, 2001 CrLJ NOC 54(Raj) : (2001) 1 Raj Cri C 55; Vanamala

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Amaranadh v. State of A.P., 2001 CrLJ 4498 (para 12) (AP); Devakinandan v. State, 2003 CrLJ 1502, 1505 (para 14) (MP) : 2003 (2) All Ind Cas 123 : 2003 Cr LR (SC & MP) MPJ 55 : 2003 (1) Jab LJ 189 : 2002 (4) MP HT 135 : 2003 (1) MP LJ 329 : 2003 (2) Marri LJ 140 : 2003 (3) Rec Cr R 379; State of Karnataka v. Shanker Laxman Homakatti, 2002 CrLJ NOC 363(Kant) ; Ram Singh v. State of Uttaranchal, 2005 CrLJ NOC 59(Uttar) ; Vinod Kumar v. State, 2005 CrLJ NOC 222(A) (Uttar); Sahebrao v. State of Maharashtra, (2006) 9 SCC 794, 802 (para 21); Virendra Kumar v. State of U.P., 2007 CrLJ 1435, 1438 (paras 13 and 14) : (2007) 9 SCC 211; State of H.P. v. Jagdish Raj Khatta, 2008 CrLJ 2574, 2578 (paras 18 and 19) (HP). 78 K. Prema S. Rao v. Yadla Srinivasa Rao, AIR 2003 SC 11 : (2003) 1 SCC 217 : 2003 CrLJ 69. 79 Yadlapati Kutumba Rao v. State of A.P., 2003 CrLJ 4220, 4222 (para 8) (AP) : 2003 (2) Andh LD (Cri) 23 : 2003 (2) Andh LT (Cri) AP 396 : 2003 (4) Rec Cr R 949. 80 Neni v. State of Rajasthan, 2006 CrLJ 4527, 4532 (paras 24, 26 and 27) (Raj). See also Joga Singh v. State of Punjab, 2009 CrLJ 60(NOC) (P&H). 81 State of W.B. v. Orital Jaiswal, 1994 CrLJ 2104 (para 14) : AIR 1994 SC 1418. Proof of demand of dowry and maltreatment not sufficient to raise presumption, Prem Das v. State of H.P., 1996 CrLJ 951 (paras 46, 47 and 49) (HP). No evidence showing harassment within meaning of Expl. (b) of S. 498-A,I.P.C., no presumption,State of H.P. v. Nikku Ram, AIR 1996 SC 67 (paras 15-17). See also Rajbabu v. State of M.P., AIR 2008 SC 3212, 3215-17 (para 15) : (2008) 8 JT 250, reversing (2003) (3) MPLJ 179. 82 Nilakantha Pati v. State of Orissa, 1995 CrLJ 2472 (para 29) (Ori). 83 P. Mani v. State of T.N., AIR 2006 SC 1319, 1322 (para 14) : (2006) 3 SCC 161. 84 Devassia v. State of Kerala, 2006 CrLJ 3480, 3488 (para 15) (Ker).

1. "HAVING REGARD TO ALL THE OTHER CIRCUMSTANCES OF THE CASE" These words in this section give wide powers to the Court to appraise evidence and come to conclusion whether there was some extraneous cause for a woman to commit suicide. These in-built safeguards do not violate the right to life and fair procedure provided under Arts. 20(3) and 21 of the Constitution. 85 The 'all the other circumstances of the case' requires that cause and effect relationship between cruelty and suicide has to be established before drawing the presumption. 86 The mere fact that a woman committed suicide within seven years of her marriage and that she had been subjected to cruelty by her husband, does not automatically give rise to the presumption that the suicide had been abetted by her husband. The Court is required to look into all other circumstances of the case. One of the circumstances which has to be considered by the Court is whether the alleged cruelty was of such nature as was likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health of the woman. 87 Where the deceased wife had committed suicide by consuming poison, the ocular as well as documentary evidence established that the accused husband harassed her, did not allow his deceased wife to live with him, threatened to drag her out of his house, told her that after divorcing her he would marry another girl and even instituted a divorce petition against her without any basis and only to harass her, it was held that the accused husband was guilty of abetment of suicide and a presumption under Section 113-A could be raised against him. 88 Where the acts of cruelty proved against the accused husband, failed to convey to the Court that he intended or contemplated the consequence of suicide by his wife, he promptly rushed the deceased to the doctor and informed her brother and his own brother about the incident, it was held that intention to drive the deceased to commit suicide could not be inferred. 89 85 Krishan Lal v. Union of India (FB), 1994 CrLJ 3472 (paras 16 and 17) (P&H). 86 Ramesh Kumar v. State of Chhattisgarh, 2001 CrLJ 4724 (para 12) (SC). See also Devi Ram v. State of Haryana, (2002) 10 SCC 76 (para 3-5); Rajbabu v. State of M.P., AIR 2008 SC 3212, 3215-17 (para 15) : (2008) 8 JT 250, reversing (2003) (3) MPLJ 179.

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87 Hans Raj v. State of Harayana, AIR 2004 SC 2790 (para 14) : 2004 CrLJ 1759. See also Rajbabu v. State of M.P., AIR 2008 SC 3212, 3215-17 (para 15) : (2008) 8 JT 250, reversing (2003) (3) MPLJ 179. 88 Dhani Ram v. State of Rajasthan, 2006 CrLJ 3491, 3495-96 (para 15) (Raj). 89 Devassia v. State of Kerala, 2006 CrLJ 3480, 3484 (paras 17 and 18) (Ker). See also Anand Kumar v. State of M.P., (2009) 3 SCC 779, 803 (para 14) : AIR 2009 SC 2155.

2. APPLICABILITY OF S. 113-A TO HUSBAND The provisions of the presumption under Section 113-A are not applicable against the wife due to whose cruelty the husband commits suicide. In the instant case the husband committed suicide due to her alleged characterless manner. 90 90 Alka Grewal v. State of M.P., 2000 CrLJ 672 (para 4) (MP).

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Ratanlal & Dhirajlal: Law of Evidence, Updated 23rd Edition/THE INDIAN EVIDENCE ACT (ACT 1 OF 1872)/PART III PRODUCTION AND EFFECT OF EVIDENCE/CHAPTER VII THE BURDEN OF PROOF/S. 113-B.

CHAPTER VII THE BURDEN OF PROOF S. 113-B. Presumption as to dowry death. When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death. Explanation. --For the purpose of this section, "dowry death" shall have the same meaning as in S. 304B of Indian Penal Code (45 of 1860).

COMMENTS This section was inserted by the Dowry Prohibition (Amendment Act43 of 1986). This section provides that when a married woman had been subjected to cruelty or harassment for or in connection with any demand for dowry before her death, the court shall presume that such person had caused the dowry death. The Explanation says, that the expression 'Dowry Death' shall have the same meaning as it has in Section 304 -B of the Indian Penal Code . The applicability of this section is limited to cases 'when the question is whether a person has committed dowry death of a woman' and that too requires the proof of two further facts : firstly, it should be shown that soon before her death such a woman was subjected by such person to 'cruelty' or 'harassment' and secondly, that the cruelty by such person was 'for or in connection with any demand for dowry'. 91 These provisions are not violative of Arts. 14, 20(3) and 21 of the Constitution. 92 The provision of Section 113-B of the Evidence Act was held to be not applicable to cases prior to the introduction of this provision. In such cases a greater burden lies on the prosecution to prove that the cause of death of the deceased was homicidal. 93 The necessity for insertion of the two provisions has been amply analysed by the Law Commission of India in its 21st Report dated 10th August, 1988 on 'Dowry Deaths and Law Reform'. Keeping in view the impediment in the pre-existing law in securing evidence to prove dowry related deaths, Legislature thought it wise to insert a provision relating to presumption of dowry death on proof of certain essentials. It is in this background presumptive Section 113-B in the Evidence Act, has been inserted. As per the definition of "dowry death" in Section 304 -B, IPC and the wording in the presumptive Section 113-B of the Evidence Act, one of the essential ingredients, amongst others, in both the provisions is that the concerned woman must have been "soon before her death" subjected to cruelty or harassment "for or in connection with the demand of dowry". Presumption under Section 113-B is a presumption of law. On proof of the essentials mentioned therein, it becomes obligatory on the Court to raise a presumption that the accused caused the dowry death. The presumption shall be raised only on proof of the following essentials : 20)   The question before the Court must be whether the accused has committed the dowry death of a woman. (This means that the presumption can be raised only if the accused is being tried for the offence under Section 304 -B, IPC ).

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19)   relatives. 10)   dowry. 7)  

The woman was subjected to cruelty or harassment by her husband or his Such cruelty or harassment was for or in connection with, any demand for Such cruelty or harassment was soon before her death.

1

For drawing a presumption under this section, first there should be a death of a woman otherwise than in normal circumstances, within seven years of marriage and the prosecution has shown that soon before her death she was subjected to cruelty or harassment in connection with any demand for dowry by persons accused of having committed the offence. Unless and until these preliminary facts are established by the prosecution, it is not open to the Courts to draw a presumption against the accused invoking this Section. 2 Though the presumption under Section 113-B is rebuttable yet the Court hearing the bail application of the accused cannot hold like a trial Court that the said presumption had been rebutted. 3 Where the death of the married woman occurred on account of asphyxia due to hanging within three years of her marriage, and is otherwise than under normal circumstances, it would still be a death coming within the scope of 304-B, when cruelty or harassment by her husband or any relative of her husband in connection with any demand for dowry, is proved. 4 In a case of death of a newly wedded girl of burn injuries, the father of the deceased stated in the F.I.R. itself that the deceased committed suicide because of harassment and torture by her in-laws for bringing insufficient dowry and that the deceased gave her information to him, it was held that the deceased died committing suicide at the instigation of her husband and in-laws and the presumption under Section 113-A is also available. It was also held that the provision Section 113-A is procedural and therefore has retrospective application. 5 In the case of dowry death, it was held that the act ual participation of husband or his relative in the commission of the offence is not required to be proved. 6 Where in a case of unnatural death of the wife, the evidence showed that there was dowry demand and cruelty on the part of the husband, presumption under this section was available. 7 Where there was sufficient evidence to prove demand of dowry and the death of the deceased wife had taken place within seven years of her marriage, it was held that merely because the accused was acquitted under Section 302 of IPC , presumption as to dowry death did not stand automatically rebutted. 8 Further, it was held that to prove the date of marriage to prove the incident to have taken place within seven years of marriage and drawing the presumption against the accused by shifting the onus on the defence, is erroneous. 9 Where black stained rough skin on both sides of neck of the deceased wife was found and the doctor who conducted the post-mortem noticed that blood stained fluid was trickling from the side of the mouth and brain matters were found congested; the Investigating Officer had seized a blood-stained pillow; there was no evidence that death was due to normal reasons and the evidence of the witnesses established the demand of dowry and ill-treatment shortly before the date of occurrence, presumption under this section was available. 10 The wife was sent back to her parent's home due to dispute regarding dowry and was brought back after the ' panchayat ' resolved the dispute. Her death occurred 10-15 days after the ' panchayat ' during the period of which there was no evidence of cruelty or harassment with demand of dowry. Presumption of dowry death could not be raised; 11 but in Dhian Singh v. State of Punjab , 12 the presumption was raised where the deceased, due to cruel treatment and harassment for demand of dowry meted out to her, came to reside with her parents and on intervention of the Panchayatdhars she went to her husband's house where within two months, she died of burn injuries, not under normal circumstances and her body was disposed of without even informing her parents or any of her relatives. The accused husband demanded some amount from the father of the deceased wife six months after the marriage which was paid to him. He again demanded money after about two years from the first demand and the wife died after two years from the second demand. It was held that presumption under Section 113-B could not be raised. 13 Where in a case of dowry death the prosecution witness, the husband, stated that her death was due to diarrhoea and he was neither

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declared hostile nor cross-examined on that issue, the presumption under Section 113-B could not be raised. 14 In a case of death by burn injuries, the first dying declaration of the deceased was recorded by a Munsif Magistrate after following proper procedure and taking necessary precautions and only ten minutes after another dying declaration was recorded by a police constable without following the proper procedure and taking necessary precautions and without any reason as to why the second one was required. The first one showed that it was an accidental death and second one a dowry death. The accused were convicted relying on the second one. The Supreme Court held that it was not proper to rely on the second one and the first one rebutted the presumption as to dowry death. It was observed that even a harassed wife can get burnt accidentally. 15 In absence of the evidence that soon before death of the deceased-wife she was subjected to cruelty or harassment by accused due to non-fulfilment of his demand of dowry and the evidence on record showed that the deceased might have committed suicide due to mental sickness, the presumption under Section 113-B of the Evidence Act could not be raised. 16 In a case of unnatural death of the wife, the husband had allegedly demanded money from the parents of the deceased for starting business. In absence of any cruelty soon before the death that the deceased was subjected to cruelty or harassment in connection with the dowry, and in absence of any demand of dowry, the presumption under Section 113-B of the Act could not be invoked. 17 Where the deceased committed suicide by setting herself on fire and her dying declaration showed that she committed suicide in pursuance of quarrel with her brother-in-law on the day prior to the incident but she did not mention that the said quarrel was in connection with any demand for dowry, presumption under Section 113-A could not be raised. 18 Where deceased-wife died of poisoning within seven years of her marriage but there was no evidence on record to show that she was subjected to cruelty or harassment by her husband or any of his relatives for or in connection with any demand of dowry, it was held that presumption under Section 113-B of the Evidence Act could not be invoked. 19 The letters written by the deceased wife to her parents showed that the cruel treatment to her by the husband was not in connection with the dowry demand and there was no material to show that soon before her death, she was subjected to cruelty for demand of dowry. A proximate and live link between the effects of cruelty based on demand and death was also missing. The deceased wife had committed suicide because the accused husband wanted to marry another girl. Presumption under Section 113-B could not be raised and the accused was held to be entitled to benefit of doubt. 20 The Supreme Court observed : "A reading of Section 304 -B Section 113 , Evidence Act together makes it clear that law authorises a presumption that the husband or any other relative of the husband has caused the death of a woman if she happens to die in circumstances not normal and that there was evidence to show that she was treated with cruelty or harassed before her death in connection with any demand for dowry. It, therefore, follows that the husband or the relative, as the case may be, need not be the act ual or direct participant in the commission of the offence of death. For those that are direct participants in the commission of the offence of death there are already provisions incorporated in Sections 300, 302 and 304. The provisions contained in Section 304 -B IPC and Section 113-B of the Evidence Act were incorporated on the anvil of the Dowry Prohibition (Amendment) Act, 1984, the main object of which is to curb the evil of dowry in the society and to make it severely punitive in nature and not to extricate husbands or their relatives from the clutches of Section 302 IPC if they directly cause death. This conceptual difference was not kept in view by the Courts below. But that cannot bring any relief if the conviction is altered to Section 304 Part II. No prejudice is caused to the accused-appellants as they were originally charged for offence punishable under Section 302 IPC along with Sections 304-B IPC ." 21

Once the prosecution is able to establish the ingredients of Section 304 -B, IPC , the presumption against the accused starts as enjoined in Section 113-B of the Evidence Act. Of course, the presumption is rebuttable and the onus lies on the accused against whom the presumption lies to discharge it. 22 In case of dowry death of a woman, Section 113-B of the Evidence Act does not provide that, if such a woman is shown to be subjected to cruelty or harassment soon before her death, the Court shall or may presume that the cruelty was for, or in connection with any demand of dowry. 23 If soon before her death a woman is subjected to cruelty or harassment for, or in connection with any demand for dowry by the person who is accused of causing her death, then the court shall presume

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that such person has caused the dowry death. The presumption under Section 113-B is a presumption of law and once the prosecution establishes the essential ingredients mentioned therein, it becomes the duty of the court to raise a presumption that the accused caused the dowry death. 24 91 Bhoora Singh v. State, 1993 CrLJ 2636 (para 14) (All). 92 Krishan Lal v. Union of India, 1994 CrLJ 3472 (para 23) (P&H). 93 Om Prakash v. State of U.P., 2004 CrLJ 3939, 3947 (para 23) (All) : 2004 All LJ 2318 : 2004 (49) All Cr C 587 : 2004 (3) All Cr R 2737. 1 Kaliyaperumal v. State of T.N., AIR 2003 SC 3828 (para 4) : 2003 CrLJ 4321. See also Harjit Singh v. State of Punjab, (2006) 1 SCC 463, 469 (para 16). 2 Baljeet Singh v. State of Haryana, AIR 2004 SC 1714 (paras 9, 10 and 15) : (2004) 3 SCC 122; See also State of Karnataka v. M.V. Manjunathegowda, (2003) 2 SCC 188 (paras 22 and 23) : AIR 2003 SC 809 : 2003 CrLJ 900; Ram Badan Sharma v. State of Bihar, AIR 2006 SC 2855, 2860-61 (paras 32, 34 and 35); Marriage having taken place more than 7 years earlier to incident, not dowry death, acquittal, Dalbir Singh v. State of U.P., (2004) 5 SCC 334, 341 (para 8) : AIR 2004 SC 1990. Consumption of pesticide on account of toothache under ignorance or lack of knowledge, husband took every step to save her, no presumption; Sanohar Singh v. State of M.P., 2006 CrLJ 508(NOC) (MP) . Unnatural death within 7 years of marriage, no evidence of torture or harassment for dowry, no presumption, Satyendra Kumar Gupta v. State of Bihar, 2006 CrLJ 4548(Pat) ; See also Sarman v. State of M.P., 2006 CrLJ 570(NOC) (MP) . 3 Dronendu Jha v. State of Jharkhand, 2004 CrLJ 2950, 2952 (para 7) (Jhar) : 2004 AIR Jhar HCR 1745 : 2004 (3) Cur Cr R 484 : 2004 (2) DMC 268 : 2004 (2) East Cr C 275. 4 Public Prosecutor, A.P. High Court v. T. Basava Punnaiah, 1989 CrLJ 2330(AP) . 5 Gurbachan Singh v. Satpal Singh, AIR 1990 SC 209. Also see Prem Singh v. State of Haryana, AIR 1998 SC 2628; Pawan Kumar v. State of Haryana, AIR 1998 SC 958 : 1998 CrLJ 1144; Venugopal v. State of Karnataka, (1999) 1 SCC 216 : 1998 SCC 1592(Cri) ; Ram Kumar v. State of Haryana, (1998) 9 SCC 1 : 1998 SCC 833(Cri) . Death of young wife, physical and mental torture and harassment by in-laws on account of insufficient dowry and also squint in her eyes, presumption as to dowry death, Baldev Krishan v. State of Punjab, AIR 1997 SC 1666 : 1997 CrLJ 1162; G.M. Natarajan v. State, 1995 CrLJ 2728 (paras 10 and 11) (Mad). Wife committing suicide within two years of her marriage, certain injuries found on her right thigh demand of dowry, presumption, Ajay Singh v. State, 1998 CrLJ 3178(J&K) ; Jaswant Singh v. State of Haryana, 1994 CrLJ NOC 176(P&H) ; harassment and cruelty with dowry demand on ground of being barren, P.P. Rao v. State of U.P., 1994 CrLJ 2632(AP) ; State of Kerala v. Rajayyan, 1995 CrLJ 989 (paras 7, 20 and 22) (Ker); horrendous bed room murder of young married girl, strong evidence demand for dowry, presumption, State of U.P. v. Ramesh Prasad Misra, AIR 1996 SC 2766 (para 13); B.P. Chaurasia v. State of Bihar, 2001 CrLJ 3541 (paras 15, 16 and 17) (Pat); Mahesh Kumar v. State, 2001 CrLJ 4417 (paras 37 and 38) (All); Jageshwar Mahto v. State of Bihar, 2001 CrLJ 4589 (paras 12A and 14) (Jhar). Deceased harassed for not bringing any dowry, even a week before death, presumption, Sanjeev Kumar v. State of H.P., 2006 CrLJ 567(NOC) (HP) ; ill treatment, demand of money, presumption Gulabi Devi v. State of Bihar, 2007 CrLJ 126(NOC) (Jhar) : 2007 (1) AIR Jhar R 167; Anand Mahato v. State of Jharkhand, 2007 CrLJ 657, 659 (para 9) (Jhar); Anguri Devi v. State of Jharkhand, 2007 CrLJ 1074(Jhar) ; State of U.P. v. Kuldeep, 2008 CrLJ 331(NOC) (All) : 2008 (1) ALJ 620(DB) ; Raj Kumar v. State of Haryana, 2008 CrLJ 584(NOC) (P&H); Kashimuddin Sk. v. State of W.B., 2008 CrLJ 4471, 4472 (para 6) (Cal); Devi Lal v. State of Rajasthan, (2007) 14 SCC 176, 182-83 (paras 24-29); Rameshwar Dass v. State of Punjab, (2007) 14 SCC 696; State of Rajasthan v. Jaggu Ram, (2008) 12 SCC 51. 6 Ramarao v. State of AP, 1990 CrLJ. 7 Hem Chand v. State of Haryana, AIR 1995 SC 120 (para 6). See also Odeti Ram Reddy v. State of A.P., 2002 CrLJ NOC 221(AP) : 2002 (2) Andh LD (Cri) 168 : 2002 (1) Andh LT (Cri) AP 387; Sundarapalli Srinivas v. State of A.P., 2002 CrLJ NOC 286(AP) : 2002 (2) DMC 258; Premchand Mahto v. State of Jharkhand, 2005 CrLJ 3672, 3675 (paras 12 to 14) (Jhar) : 2005 (2) BLJR 1552; State v. Virendra Kumar, 2006 CrLJ 228(NOC) (Raj) : (2005) 2 Marri LJ 328; Dileshwar Matho v. The State of Bihar, 2006 CrLJ 3562, 3565-66 (paras 11-13) (Jhar); Ramvir Singh v. State of U.P., 2007 CrLJ 602(NOC) (All) : 2007 (4) ALJ 51(DB) ; Satendra Kumar v. State of U.P., 2007 CrLJ 2537, 2538 (para 7) (All); Daulu Devi v. State of Bihar, 2007 CrLJ 3563, 3571 (para 33) (Jhar); Sudhir Kumar v. State of Bihar, 2008 CrLJ 13, 19 (para 42) (Pat); Raman Kumar v. State of Punjab, 2008 CrLJ 732(NOC) (P&H); Daulat Ram v. State of Rajasthan, 2008 CrLJ 715(NOC) (Raj) ; M.D. Anser Ali v. State of Assam, 2008 CrLJ 999(NOC) (Gau) . 8 Alamgir Sani v. State of Assam, AIR 2003 SC 2108 (para 13 and 15) : (2002) 10 SCC 277 : 2003 CrLJ 4917. See also Mohan Lal v. State of M.P., 2005 CrLJ 16, 19 (para 13) (MP). 9 Baljeet Singh v. State of Haryana, AIR 2004 SC 1714, (para 17) : (2004) 3 SCC 122. 10 Kamesh Panjiyar v. State of Bihar, AIR 2005 SC 785 (paras 11 and 15); See also Mathura Sao v. State of Bihar, 2003 CrLJ NOC 245(Jhar) : (2003) 2 JCR 595 : 2003 AIR Jhar HCR 978 : 2003 (2) BLJR 1029 : 2003 (3) Crimes 580 :

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2003 (2) DMC 578 : 2003 (3) JLJR 133; State of U.P. v. Ajay Kumar, 2004 CrLJ 3926, 3930 (para 19) (All) : 2004 All LJ 1682 : 2004 (2) All Cr R 1059. 11 Sham Lal v. State of Haryana, AIR 1997 SC 1873 : 1997 CrLJ 1927 (paras 12 and 13). Death of wife within 7 years of marriage, no evidence of demand of dowry or cruelty, no presumption, Hajarimal v. State of Rajasthan, 1998 CrLJ 4253, at pp. 4258-4259 (Raj). No unimpeachable evidence of dowry harassment, no presumption arises, Fatima Kom Mastansab Nadaf v. State of Karnataka, 1999 CrLJ 1175, at p. 1176 (Kant); Devinder v. State of Haryana, 1994 CrLJ 1679(P&H) ; Ratanlal v. State of M.P., 1993 CrLJ 3723 (paras 17-19) (MP); Bhakhar Ram v. State of Rajasthan, 1995 CrLJ 1345 (paras 21 to 25) (Raj); Ranganathan v. Veerapandian, 1996 CrLJ 540 (paras 18 and 19) (Mad). See also Kailash v. State of M.P., (2006) 12 SCC 667, 670-71 (para 10) : AIR 2007 SC 3146; M. Srinivasulu v. State of A.P., (2007) 12 SCC 443, 450 (para 10) : AIR 2007 SC 3146; Mohan Singh Panwar v. State of Uttaranchal, 2007 CrLJ 2069, 2075 (paras 29-33) (Utr); Biswajit Halder v. State of W.B., (2008) 1 SCC 202, 205 (para 14) : (2007) 5 JT 360; Kanchy Komuramma v. State of A.P., 1995 Supp (4) SCC 118 : 1996 SCC 31(Cri) ; Sitabai v. The State of Maharashtra, 2008 CrLJ 1032(NOC) (Bom) ; Noorjahan v. State, (2008) 11 SCC 55, 59-60 (paras 18 and 19) : AIR 2008 SC 2131. 12 (2004) 7 SCC 759, 761 (paras 5-7). 13 Rajinder v. State of Haryana, 2000 CrLJ 2492 (paras 18 and 20) (P&H). 14 Gati Behera v. State of Orissa, 1997 CrLJ 4331(Ori) . See also Sant Gopal v. State of U.P., 1995 CrLJ 312 (para 62) (All); Jai Ram v. State of Rajasthan, 1995 CrLJ 1020 (paras 16-19) (Raj). 15 N.V. Stayanandam v. Public Prosecutor, High Court of A.P., (2004) 10 SCC 769 (paras 6, 8 and 9) : AIR 2004 SC 1708. 16 Nand Kishore Singh v. State of Jharkhand, 2005 CrLJ 389, 396 (para 14) (Jhar). 17 Tilak Bedia v. State of Bihar, 2004 CrLJ NOC 80(Jhar) : 2002 (3) JLJR 155 : 2002 (3) JCR Jha 603 : 2004 AIR Jhar HCR 102; See also S. Tripat Patra v. State of Orissa, 2003 CrLJ 1519, 1594 (para 9) (Ori) : 2003 (1) Crimes 571 : 2003 (2) DMC 734 : 2003 Mat LR 537 : 2003 (24) Ori CR 148 : 2003 (1) Ori LR 13 : 2003 (3) Rec Cr R 49; Aftab Alam Abdul Hamid Ansari v. State of Maharashtra, 2005 CrLJ 3634, 3637 (para 12) (Bom); Chandra Devi v. State of Rajasthan, 2002 CrLJ 1075, 1079 (para 17) (Raj) : 2002 (1) Cur Cr R 213 : 2002 (1) DMC 104 : 2002 (2) Raj Cr C 610 : 2001 (3) Raj LR 673 : 2002 (1) WLC 385; Radha Kant Yadav v. State of Jharkhand, 2003 CrLJ NOC 13(Jhar) : 2003 AIR Jhar HCR 5 : 2003 (1) DMC 7 : 2002 (3) East Cr C 221 : 2002 (3) JLJR 135; Anup Kumar Verma v. State of Jharkhand, 2004 CrLJ 1712, 1716 to 1720 (paras 10 & 11) (Jhar) : 2004 AIR Jhar HCR 933 : 2004 (2) Cur Cr R 1 : 2004 (1) DMC 192 : 2003 (4) Jhar CR Jhar 473 : 2003 (4) JL JR 435. 18 Mahendra Sahu v. State of M.P., 2005 CrLJ 873, 875 (para 8) (MP). 19 Harjit Singh v. State of Punjab, AIR 2006 SC 680, 684 (paras 14 & 22) : 2006 CrLJ 554, 558, (SC). 20 Dhani Ram v. State of Rajasthan, 2006 CrLJ 3491, 3495-96 (para 15) (Raj). 21 Muthu Kutty v. State, (2005) 9 SCC 113, 122 (para 20) : AIR 2005 SC 1437. 22 Satbir Singh v. State of Haryana, AIR 2005 SC 3546, 3548 (para 7) : 2005 CrLJ 4137. 23 Mahendra Sahu v. State of M.P., 2005 CrLJ 837, 875 (para 8) (MP). 24 State of Rajasthan v. Jaggu Ram, (2008) 12 SCC 51, 56 (para 12). See also Raman Kumar v. State of Punjab, 2009 CrLJ 3034, 3038 (para 15).

1. "SOON BEFORE" "Soon before" is very relevant and it has to be shown that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. It is a relative term and it would depend upon circumstances of each case and no strait jacket formula can be laid down as to what would constitute a period soon before the occurrence. It would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question. 25 In relation to dowry deaths, the circumstances showing the existence of cruelty or harassment to the deceased are not restricted to a particular instance but normally refer to a course of conduct which may be spread over a period of time. If the cruelty or harassment or demand for dowry is shown to have persisted, it shall be deemed to be "soon before death," if any other intervening circumstance showing the nonexistence of such treatment is not on record, before the alleged such treatment and the date of death. It does not mean that such time can be stretched to any period. Proximate and live link between the

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effect of cruelty based on dowry demand and the consequential death is required to be proved by the prosecution. The demand of dowry, cruelty or harassment based upon such demand and the date of death should not be too remote in time which under the circumstances, be treated as having become stale enough. In the instant case the deceased was subjected to continuous harassment with demand of dowry which continued till she met her parents, two days after which she died. The existence of harassment would be deemed to be "soon before death". 26 Where the deceased-wife disclosed the facts regarding demand of dowry and physical and mental torture given to her by the accused in-laws while she had came to her father's place and she was done to death only after one month of her return to in-laws place, it can very well be said that the demand of dowry and torture meted out to the deceased by the appellants were soon before her death. 27 Where there is evidence of demand of Maruti car in dowry being pressed by the accused persons after about six months of the marriage of the deceased which took place before three years before the incident and the deceased informed about ill-treatment and harassment on non-fulfilment of the demand meted out to her by the accused from time to time on her visits to parental house and on telephone three months before the incident when two witnesses went to the house of the accused to attempt to wean away and dissuade the accused from pressing their such demand, they were humiliated and turned out of the house with the command not to enter. The house without fulfilling the demand of the Maruti car. She died an unnatural death after three months of the incident. The test of 'soon before' under Section 113-B of the evidence Act was held to be perfectly answered in the positive on the facts and circumstances of the case. 28 Where the evidence on record clearly established that the accused-husband had subjected the deceased to cruelty or harassment due to non-fulfilment of demand of dowry soon before her death which occurred in abnormal circumstances, it would be presumed under this section that it was the accused who caused the death of his wife. 29 In absence of material to infer that the deceased was subjected to cruelty soon before her death and there being a positive evidence on record that the probable cause of the suicide of the deceased was quarrel with some persons, legal presumption under this section could not be drawn against the accused. 30 Where the evidence of the relatives showed that there was no demand of dowry at the time of marriage and subsequent grievances, resolved by the authorities of Crime Against Women Cell, did not relate to dowry demand and there was no definite evidence of ill-treatment having immediate proximity to the date of the death of the deceased, it was held that no presumption could be drawn against the accused under this Section. 31 Mere lapse of some time by itself would not provide to an accused a defence, if the course of conduct relating to cruelty or harassment in connection with the dowry is shown to have existed earlier in time not too late and not too stale before the date of death of the victim. This is so because the expression used in the relevant provision is "soon before". The expression is a relative term which is required to be considered under specific circumstances of each case and no straitjacket formula can be laid by fixing any time-limit. The expression is pregnant with the idea of proximity test. It cannot be said that the term "soon before" is synonymous with the term "immediately before". The determination of the period which can come within the term "soon before" is left to be determined by the Courts, depending upon the facts and circumstances of each case. The expression "soon before" would normally imply that the interval should not be much between the cruelty or harassment concerned and the death in question. There must be existence of a proximate and live link. 32 A reference to expression "soon before" used in Section 114, Illustration (a) of the Evidence Act is relevant. 33 The expression "soon before her death" has not been defined in either of the statutes. Therefore, in each case, the court has to analyse the facts and circumstances leading to the death of the victim and decide whether there is any proximate connection between the demand or dowry, the act of cruelty or harassment and the death. 34 25 Keshab Chandra Panda v. State, 1995 CrLJ 174 (para 6) (Ori). See also Vidhya Devi v. State of Haryana, (2004) 9 SCC 476, 480 (para 6) : AIR 2004 SC 1757; Rohit Das v. State of Bihar (Now Jharkhand), 2005 CrLJ 4, 10 (para 11) (Jhar); anology drawn with S. 114(a)Kamesh Panjiyar v. State of Bihar, (2005) 2 SCC 388, 393 (para 11) : AIR 2005 SC 785 : 2005 CrLJ 1418; Raman Kumar v. State of Punjab, 2009 CrLJ 3034, 3038-39 (para 16). 26 Kans Raj v. State of Punjab, 2000 CrLJ 2993 (paras 14-16 and 19) (SC) : AIR 2000 SC 2324; proximate and a live link a must Kaliyaperumal v. State of T.N., AIR 2003 SC 3828 (para 5) : 2003 CrLJ 4321; Hira Lal v. State (Govt. of

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NCT), Delhi, AIR 2003 SC 2865 (para 9) : (2003) 8 SCC 80 : 2003 CrLJ 3711; Kunhiabdullah v. State of Kerala, AIR 2004 SC 1731 (para 11); State of A.P. v. Raj Gopal Asawa, AIR 2004 SC 1933 (para 10); demand of dowry made shortly before suicide, State of A.P. v. Raj Gopal Asawa, AIR 2004 SC 1933 (para 12); analogy drawn with S. 114(a)Kamesh Panjiyar v. State of Bihar, AIR 2005 SC 785 (para 11); Yashoda v. State of M.P., (2004) 3 SCC 98, 104 (para 16); Arun Garg v. State of Punjab, (2004) 8 SCC 251 (paras 17-19, 26 and 28); Rohit Das v. State of Bihar (Now Jharkhand), 2005 CrLJ 4, 10 (para 11) (Jhar); Mummidi Udaya Bhaskar v. State of A.P., 2004 CrLJ NOC 244(AP) : (2004) 1 DMC 524 : 2003 (2) Andh LD (Cri) 891 : 2004 (1) Hindu LR 257; Ram Badan Sharma v. State of Bihar, (2006) 10 SCC 115, 124 (para 33); State of Karnataka v. Muniyappa, 2006 CrLJ 3146, 3153-54 (paras 23-25) (Kant); Anoop Singh v. State of Haryana, 2006 CrLJ 3077, 3081 (para 20) (P&H); Malin Debnath v. State of Assam, 2008 CrLJ 390(NOC) (Gau) ; Baldev Singh v. State of Punjab, AIR 2009 SC 913, 918 (para 13). 27 Premchand Mahto v. State of Jharkhand, 2005 CrLJ 3672, 3675 (para 14) (Jhar) : 2005 (2) BLJR 1552, relying on Kaliyaperumal v. State of Tamil Nadu, 2003 CrLJ 4321 : AIR 2003 SC 3828. 28 State of U.P. v. Satya Narain Tiwari, 2005 CrLJ 3684, 3690 (para 23) (All) : 2005 All LJ 2741, relying on Kanhiabdullah v. State of Kerala, 2004 (48) All Cr C 950 : AIR 2004 SC 1731. 29 Madhusudan Rai alias Madhu v. State of Jharkhand, 2006 CrLJ 332, 335 (para 20) (Jhar). 30 Mangal Ram v. State of M.P., 1999 CrLJ 4342 (para 24) (MP). See also Budhi Singh v. State of H.P., 2000 CrLJ 4879 (paras 26 and 27) (HP); Chando Devi v. Sate of Bihar, 2002 CrLJ 2783, 2784 (para 8) (Pat) : 2002 (2) Pat LJR 458; Mukesh v. State of Uttranchal, 2003 CrLJ 2598, 2601 (para 15) (Uttar); Vinod Kumar v. State, 2005 CrLJ NOC 222(Uttar) (A); Tirath Kumari v. State of Haryana, (2005) 12 SCC 561 (paras 3 to 6); Shanthakumar v. Deputy Superintendent of Police, Gudiyattam, 2007 CrLJ 356(NOC) (Mad) ; Kanhai Dhibar v. State of Jharkhand, 2007 CrLJ 296(NOC) (Jhar) : 2007 (1) AIR Jhar R 734; State of U.P. v. Dr. Sitaram Singh, 2008 CrLJ 1533, 1536 (para 21) (All). 31 Hira Lal v. State (Govt. of NCT), Delhi, AIR 2003 SC 2865 (para 10) : (2003) 8 SCC 80 : 2003 CrLJ 3711. 32 Kailash v. State of M.P., (2006) 12 SCC 667, 670-71 (para 10) : AIR 2007 SC 107, relying on Hira Lal v. State (Govt. of NCT), Delhi, (2003) 8 SCC 80 : 2003 SCC 2016(Cri) . See also Prem Kanwar v. State of Rajasthan, AIR 2009 SC 1242, 1246 (para 12). 33 Prem Kanwar v. State of Rajasthan, AIR 2009 SC 1242, 1246 (para 12). 34 State of Rajasthan v. Jaggu Ram, (2008) 12 SCC 51, 56 (para 13), relying on State of A.P. v. Raj Gopal Asawa, (2004) 4 SCC 470 : 2004 SCC 1306(Cri) ; Arun Garg v. State of Punjab (2004) 8 SCC 251 : 2005 SCC 338(Cri) ; Kaliyaperumal v. State of T.N., (2004) 9 SCC 157 : 2004 SCC 1417(Cri) ; Kamesh Panjiyar v. State of Bihar, (2005) 2 SCC 388 : 2005 SCC 511(Cri) and Ram Badan Sharma v. State of Bihar, (2006) 10 SCC 115 : (2007) 1 SCC 166(Cri) .

2. "DOWRY DEATH" For the purpose Section 113-B, "dowry death" shall have the same meaning as in Section 304 -B of the IPC (45 of 1860) i.e. where the death of a woman is caused by burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death. 35 Where the letters written by the deceased wife showed that there was not even a whisper about demand of dowry, there were improvements in the statements of the witnesses, recorded in the court and there was a clear indication in the history sheet of hospital where she was treated that she, while trying to ignite a gas stove, suddenly caught fire, it was held that the prosecution squarely failed to establish the accusation that she was set ablaze after pouring kerosene oil by her husband and the mother-in-law. 36 35 State of Rajasthan v. Jaggu Ram, (2008) 12 SCC 51, 55 (para 10). See also Tarsem Singh v. State of Punjab, AIR 2009 SC 1454, 1457 (para 12). 36 Raman Kumar v. State of Punjab, 2009 CrLJ 3034 (paras 6, 7 and 17).

3. SS. 113-A AND 113-B--DISTINCTION

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Section 113-A relates to offences under Sections 498 -A and 306 of the IPC , whereas Section 113-B relates to Section 304-B thereof. Whereas in terms of Section 113-A, the prosecution is required to prove that the deceased was subjected to cruelty, in terms of Section 113-B, the prosecution must prove that the deceased was "subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry." 37 The different terminology of the two Sections 113-A and 113-B itself brings out the real purpose behind the two provisions and whereas Section 113-B places a heavier onus on an accused to prove his innocence, the onus placed under Section 113-A is far lighter. A comparative reading of the two provisions would highlight that under Section 113-A, the court "may presume", having regard to all the other circumstances of the case, an abetment of suicide as visualised by Section 306 , IPC , but in Section 113-B which is relatable to Section 304 -B, IPC , the word "may" has been substituted by "shall" and there is no reference to the circumstances of the case. 38 37 Devi Lal v. State of Rajasthan, (2007) 14 SCC 176, 180 (para 19), following Satvir Singh v. State of Punjab, (2001) 8 SCC 633 : 2002 SCC 48(Cri) and Hans Raj v. State of Haryana, (2004) 12 SCC 257 : 2004 SCC (Cri) Supp 217. 38 Anand Kumar v. State of M.P., (2009) 3 SCC 799, 802-03 (para 13) : AIR 2009 SC 2155.

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Ratanlal & Dhirajlal: Law of Evidence, Updated 23rd Edition/THE INDIAN EVIDENCE ACT (ACT 1 OF 1872)/PART III PRODUCTION AND EFFECT OF EVIDENCE/CHAPTER VII THE BURDEN OF PROOF/S. 114. 1 of 4

CHAPTER VII THE BURDEN OF PROOF S. 114. Court may presume existence of certain facts. The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. ILLUSTRATIONS The Court may presume-13a)   that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession; 14b)   that an accomplice is unworthy of credit, unless he is corroborated in material particulars; 5c)   that a bill of exchange, accepted or endorsed, was accepted or endorsed for good consideration; 3d)   that a thing or state of things which has been shown to be in existence within a period shorter than that within which such things or states of things usually cease to exist, is still in existence; 2e)   that judicial and official act s have been regularly performed; 2f)   that the common course of business has been followed in particular cases; 2g)   that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it; 2h)   that if a man refuses to answer a question: which he is not compelled to answer by law, the answer, if given, would be unfavourable to him; 2i)   that when a document creating an obligation is in the hands of the obligor, the obligation has been discharged. But the Court shall also have regard to such facts as the following, in considering whether such maxims do or do not apply to the particular case before it:-as to illustration (a)--a shop-keeper has in his till a marked rupee soon after it was stolen, and cannot account for its possession specifically, but is continually receiving rupees in the course of his business : as to illustration (b)-- A , a person of the highest character, is tried for causing a man's death by an act of negligence in arranging certain machinery. B , a person of equally good character, who also took part in the arrangement, describes precisely what was done, and admits and explains the common carelessness of A and himself: as to illustration (b)--a crime is committed by several persons. A , B and C , three of the criminals, are captured on the spot and kept apart from each other. Each gives an account of the crime implicating D , and the accounts corroborate each other in such a manner as to render previous concert highly improbable;

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as to illustration (c)-- A , the drawer of a bill of exchange, was a man of business. B , the acceptor, was young and ignorant person, completely under A 's influence; as to illustration (d)--it is proved that a river ran in a certain course five years ago, but it is known that there have been floods since that time which might change its course; as to illustration (e)--a judicial act, the regularity of which is in question, was performed under exceptional circumstances; as to illustration (f)--the question is, whether a letter was received. It is shown to have been posted, but the usual course of the post was interrupted by disturbance; as to illustration (g)--a man refuses to produce a document which would bear on a contract of small importance on which he is sued, but which might also injure the feelings and reputation of his family; as to illustration (h)--a man refuses to answer a question which he is not compelled by law to answer, but the answer to it might cause loss to him in matters unconnected with the matter in relation to which it is asked; as to illustration (i)--a bond is in possession of the obligor, but the circumstances of the case are such that he may have stolen it. 1. PRINCIPLE AND OBJECT

Sections 104 to 113 direct on whom burden of proof will lie. The court is bound in every instance to presume against that party on whom the burden of proof is directed to lie. No option is given to the court as to whether it will presume the fact or not. But there are various presumptions where room is left for the court to exercise its powers of inference; the court can throw the burden of proof on whichever side it chooses. This sections deals with cases of that description. It declares that the court may, in all cases whatever, draw from the facts before it, whatever inferences it thinks just. The terms of the section are such as to reduce to their proper position of mere maxims, which are to be applied to facts by the courts in their discretion, a large number of presumptions to which English law gives, to a greater or less extent, an artificial value. Nine of the most important of them are given by way of illustrations. 1 Presumption is an inference of a certain fact drawn from other proved facts. While inferring the existence of a fact from another, the Court is only applying a process of intelligent reasoning which the mind of a prudent man would do under similar circumstances. It is not the final conclusion to be drawn from other facts. But it could as well be final if it remains undisturbed later. Presumption in law of evidence is a rule indicating the stage of shifting the burden of proof. The inferences so drawn would remain until either disproved or dispelled. 2 It is well settled that inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not with dead uniformity. 3 Normally, it is difficult to obtain evidence of actual 'acting in concert'. It is inferred from the relation of the parties, their conduct and their common interest. 4 No doubt the illustration is only an example or at the utmost it is a guideline. Nonetheless, it has a logical basis. Section 114 helps the Court in deciding on whom is the burden of proof in certain situations. A presumption on facts is to be raised to assist the Court for determining as to the burden of proof in a set of circumstances. As the Court can draw certain inferences either on the basis of cumulative conclusion of circumstances or on a single circumstance, it would be in a position to fix up the responsibility on one or the other party in the case with the burden to reverse such inferred presumptions. 5 Under this section the Court can draw only inferences. It does not authorise the Court to legislate as to the manner in which human beings should conduct themselves in a given set of circumstances. 6 The effect of this provision is to make it perfectly clear that Courts of Justice are to use their own common sense and experience in judging the effect of particular facts, and that they are to be subjected to no particular rules whatever on the subject. The illustrations given are, for the most part, cases of what in English law are called presumptions of law: artificial rules as to the effect of evidence by which the court is bound to guide its decision, subject, however, to certain limitations which it is difficult either to understand or to apply, but which will be swept away by the Section 114 in question. 7

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A presumption is not evidence or proof. It only shows on whom the burden of proof lies. 8 In effect, presumptions of law or fact may shift the burden of proof, and they may be rebutted not only by evidence but also by presumption of law or fact. 9 A man is presumed to know and intend the natural consequences of his act s.

10

Where the special Act prescribes a rule of evidence contrary to this section, and the burden of proof is placed by a particular statute, Section 114 recedes and has no application in such a case and it is not ultra vires . 11 Where the facts are once ascertained, presumptions arising from conduct cannot establish a right which the facts themselves disprove. 12 Section 114 is a permissive and not a mandatory section. Court may refuse to raise a presumption in a particular case although such a presumption might have been properly raised in other cases. 13 This section authorises the court to make certain presumptions of fact. They are all presumptions which may naturally arise; but the Lagislature, by the use of the word 'may' instead of 'shall' both in the body of the section and in the illustrations, shows that the court is not compelled to raise them but is to consider whether in all the circumstances of the particular case they should be raised. 14 The expression 'may presume' indicates that it is not imperative for the Court to draw a presumption but the Court has the discretion to draw a presumption in the circumstances enumerated therein. 15 Persons, not entitled to take delivery of goods mentioned in Railway luggage ticket, took delivery of goods. The railway clerk was under a misconception that those persons were entitled to take the goods and handed over the goods. Persons found in possession of such goods soon after delivery can be presumed to be in possession of stolen goods. 16 The section does not lay down hard and fast rule with regard to the circumstances in which any fact or facts may be presumed to exist nor does it contain an exhaustive list of such facts, though it gives a few illustrations from various walks of life. 17 Wherever the informative facts proved overbalance the probability that the inference would be a sound and just one, the court will exercise its sound discretion in electing not to rest upon the presumption. 18 Section 114 is a general section dealing with presumptions of facts which are inferences of certain fact patterns drawn from the experience and observation of the common course of nature, the constitution of the human mind, the springs of human act ion, the usages and habits of society and ordinary course of human affairs. 19 A presumption can be drawn only from the facts and not from other presumptions by a process of probable and logical reasoning. 20 In reaching the conclusion the Court can use the process of inferences to be drawn from facts produced or proved. Such inferences are akin to presumptions in law. Law gives absolute discretion to the Court to presume the existence of any fact which it thinks likely to have happened. 21 For the purpose of reaching one conclusion, the Court can rely on a factual presumption. Unless the presumption is disproved or dispelled or rebutted, the Court can treat the presumption as tantamounting to proof. However, it is unsafe to use that presumption to draw yet another discretionary presumption unless there is statutory compulsion. 22 In the instant case, the trial Court gave the reasoning that the witness who scribed the written complaint would not have agreed to do so, if there was no ring of truth in the complaint. The High Court observed that it was extraordinary as no Court is expected to proceed on the basis of this kind of presumption. It held that presumptions can only be raised where they are permitted under the law, and such a presumption is not permitted by any of the provisions of the Evidence Act or any other law. 23 Presumptions may be either of law or fact, and when of law may be either conclusive (presumptions juris et de jure ) or rebuttable (presumptions juris ), but when of fact (presumptiones hominis ) are always rebuttable. Mixed presumptions are those which are partly of law and partly of fact. 24 The section provides that the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. 25 The chief function of rebuttable presumptions of law is to determine on whom the burden of proof rests. 26

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Section 114 enables the court to presume the existence of probable facts, regard being had to the human conduct and common course of events as to the common sense being used as a judicial tool. 27 Rules of presumption are deduced from enlightened human knowledge and experience and are drawn from the connection, relation, and confidence of facts and circumstances. 28 Section 114 authorises the court to draw presumption. If it is refuse to presume a fact under this section, it is not open to the party to question the failure on the part of the court to raise the presumption. This is only a permissive provision enabling, the judge to support his judgement but, by no means, it envisages a mandatory duty. 29 The words 'may presume' in Section 114 clearly indicate that courts cannot be compelled to draw presumptions. It is left to the court to make and not to make presumptions according to the circumstances of the case. Whether a presumption should be raised or not depends upon the facts and circumstances of each case. It is not an error of law if the court does not draw the presumption, Section 114 is a permissive but not a mandatory section. 30 It was held by the Privy Council that there can be no presumption in favour of a fact which offends a legal principle. For example, that a tenancy by a shebait is a permanent tenancy as it would be a breach of a duty of a shebait . 31 This Section 114 permits the court to raise a presumption with regard to oral evidence as well as documentary evidence. 32 If a presumption is not available under one section, nothing prevents the court from drawing the presumption under another section. 33 There is no scope for presumption when facts are known.

34

The illustrations given under this section are not exhaustive. They are merely a few examples of this class of "natural" presumptions, and they do not exclude the other numerous cases in which such presumptions are constantly drawn. No hard and fast rule can be laid down as to what inference can be drawn; it all depends upon the facts and circumstances of each case. 35 Illustrations appended to Section 114 are only intended as guide to working and applications of section. They do not restrict presumptions regarding existence of facts covered by illustrations. 36 The illustrations appearing under Section 114 are not intended to lay down rules of law which are exhaustive of the presumptions that may be made under that section itself. They are only examples of circumstances in which certain presumptions may be raised. Whether or not a presumption under Section 114 can be drawn in a particular case depends on the facts and circumstances of the case. 37 The section has given as many as nine illustrations (a to i ), but they are not exhaustive. They serve as examples and guide to the court as to whether presumptions can be raised on the facts proved in particular cases. It is to be noted that all such presumptions under this section are rebuttable. The section does not impose on the court strict adherence to any rule/rules in drawing presumptions. The illustrations are merely examples of circumstances in which certain presumptions may be good and other presumptions, of a similar kind in similar circumstances, may be made under the provisions of the section itself. Every one of the illustrations is followed by an exception. 38 However, in doing so (raising presumptions), the court is to bear in mind the common course of natural events, human conduct and practices prevalent in private and public dealings as well as the facts and circumstances of the case in hand. Where the court disbelieves the case of the plaintiff and that of the defendant it cannot decree the suit on the basis of presumption only. 39 There are several presumptions recognised in Hindu law, Mohammadan law, criminal law, etc., e.g., the original status of a Hindu family must be presumed to be joint and undivided; in a Joint Hindu family the whole property of the family is joint estate; in the absence of express contract a Mohammadan dower is presumed to be prompt; every person is presumed to be acquainted with the law of the land; the accused is presumed to be innocent. The provisions of Section 114 of the evidence Act would apply at the stage of trial and not at the interim stage and these provisions are discretionary and have a rebuttable presumption. 40

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1 S TEPHEN ' S INTRODUCTION TO E VIDENCE A CT . 2 T. Shankar Prasad v. State of A.P., (2004) 3 SCC 753, 761 (para 13) : AIR 2004 SC 1242 : 2004 CrLJ 884. 3 Crystal Developers v. Asha Lata Ghosh, (2005) 9 SCC 375, 406 (para 62) : AIR 2004 SC 4980. 4 Technip SA v. SMS Holding (P.) Ltd., (2005) 5 SCC 464, 485 (paras 54 and 55), relying on CIT v. East Coast Commercial Co. Ltd., (1967) 1 SCR 821 : AIR 1967 SC 768; CIT v. Jubilee Mills Ltd., (1963) 48 ITR 9(SC) ; Guinness PLC and Distillers Company PLC (panel hearing on 25.8.1987 and 2.9.1987 at p. 10052. 5 Net Raj Singh v. State of M.P., (1997) 3 SCC 525 : 1997 SCC 506(Cri) . 6 State of Rajasthan v. Bhera, 1997 CrLJ 1237(Raj) . 7 Gazette of India, March 30, 1872 Supplement pp. 234-235. 8 Sodhi Transport Co. v. U.P., AIR 1986 SC 1099. 9 Kundanlal v. Custodian, Evacuee Property, Bombay, AIR 1961 SC 1316. 10 Hayati Usta v. State, AIR 1967 Goa 11; Kuzhiyaramadiyil Madhvan v. State, 1994 CrLJ 450 (para 9) (Ker). 11 Mangilal v. State of Maharashtra, AIR 1970 SC 1829; Kanyaba Parameshwari v. Union of India, AIR 1960 Ori 103. 12 Kishorilal v. Chattibai, AIR 1959 SC 504; Gangadhar v. Manjulal, 1960 Punj 42. 13 S. Mammad v. K. Mammad, AIR 1957 Ker 63. 14 Muthukumaraswami Pillai v. King-Emperor, (1912) 35 Mad 397(FB) ; Sadashib Das v. State, (1957) Cut 680. 15 Vedpal v. Shakuntala, 2005 AIHC 2865, 2868 (para 30) (AP). 16 Purshottam Mahadev v. State, AIR 1963 Bom 74. 17 Mahabir Singh v. Anant Ram, AIR 1966 All 214. 18 N ORTON , 299. 19 Gitika Bagchi v. Subhabrota Bagchi, AIR 1996 Cal 246 (paras 38 and 39), relying on Syad Akbar v. State of Karnataka, AIR 1979 SC 1848 : (1980) 1 SCC 30. See also M. Narsinga Rao v. State of A.P., 2001 CrLJ 515 (paras 16 and 17) (SC) : AIR 2001 SC 318. 20 Suresh Budharmal Kalani v. State of Maharashtra, AIR 1998 SC 3258 (para 5) : 1998 CrLJ 4592. See also T. Shankar Prasad v. State of A.P., (2004) 3 SCC 753, 761 (para 14) : AIR 2004 SC 1242 : 2004 CrLJ 884; State of A.P. v. V. Vasudeva Rao, (2004) 9 SCC 319, 328 (para 19) : AIR 2004 SC 960. 21 M. Narsinga Rao v. State of A.P., 2001 CrLJ 515 (paras 16 and 17) (SC) : AIR 2001 SC 318. 22 M. Narsinga Rao v. State of A.P., 2001 CrLJ 515 (para 18) (SC) : AIR 2001 SC 318, following Suresh Budharmal Kalani v. State of Maharashtra, AIR 1998 SC 3258 : 1998 CrLJ 4592; State of A.P. v. V. Vasudeva Rao, (2004) 9 SCC 319, 328 (para 19) : AIR 2004 SC 960; T. Shankar Rao v. State of A.P., (2004) 3 SCC 753, 761 (paras 13 and 14) : AIR 2004 SC 1242 : 2004 CrLJ 884. 23 Shyamal Biswas v. State of W.B., 2008 CrLJ 2699, 2700 (para 15) (Cal) (DB). 24 P HIPSON , 10th Edn. p. 2012); See commentary on Section 4. 25 G.P. Lakshmi v. T.B. Rajamma, 2000 AIHC 4885 (para 29) (Kant). 26 Sayad Akbar v. State of Kant, AIR 1979 SC 1848 : 1979 CrLJ 1374; explaining the difference between the operation of a presumption of fact and that of law. 27 Tukaram Ganpat Pandare v. State of Maharashtra, AIR 1974 SC 514 : 1974 SC 580(Cri), see Section 4 also. 28 Sodhi Transport Co. v. State of U.P., AIR 1986 SC 1099. 29 Indian Express Newspaper (Bombay) Ltd. v. Basumati Pvt. Ltd., AIR 1969 Bom 40; S. Mammad v. K. Mammad, AIR 1957 Ker 63.

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30 Lakkappa v. Thimmappa, AIR 1953 Mys 48; Oudh Ram v. State, 1982 CrLJ 1656(Delhi) ; Prafulla Kumar Niogy v. Nilratan Ghosh, (1964) 68 Cal WN 532; Rex v. Sibnath, AIR 1943 FC 75. 31 Naina Pillai v. Ramanathan, AIR 1924 PC 65. 32 East India Trading Co. v. Badaat & Co., AIR 1959 Bom 414. 33 Romjas v. Surendra Nath, AIR 1980 All 385. 34 R. Venkitramah v. Central Road Traffic Board, AIR 1953 TC 392. 35 In re : Kasaboyina Muttiga, AIR 1958 AP 255 : 1955 CrLJ 596; Mahabir Singh v. Anant Ram, AIR 1966 All 214; Madadeo Prasad v. Emperor, AIR 1946 Pat 1. 36 Lal Hari Bansha v. Nkunja Behari, ILR 1960 Cut 230. 37 Chimna v. State, AIR 1961 Raj 35 : (1961) 1 CrLJ 310. 38 Emperor v. Chhidda, ILR (1944) All 694; Bhagaban Panda v. Dullav Panda, AIR 1991 Ori 66. 39 G. Vasu v. Syed Yaseen, AIR 1987 AP 139(FB) . 40 Kamal Virdichandji Garg v. Fial India Pvt. Ltd., AIR 2004 Bom 462, 470 (para 15) : 2004 (4) Bom CR 744 : 2004 (3) Arbi LR 589 : 2004 (3) Bom LR 811 : 2005 (1) Cur CC 619.

2. MEANING A presumption is a legal or factual assumption drawn from the existence of certain facts. 41 Where a notice has been sent under posting certificate as provided under Sections 53(1) and (2) of the Companies Act , 1956, the statutory presumption of service will arise though the same is rebuttable and the burden is on the addressee to rebut the presumption. 42 41 M.S. Narayana Menon v. State of Kerala, (2006) 6 SCC 39, 52 (para 39) : AIR 2006 SC 3366. 42 Y.S. Krishnan v. Westfort Hi-Tech Hospital Ltd., (2008) 3 SCC 363, 377 (para 29), relying on M.S. Madhusoodhanan v. Kerala Kaumudi (P) Ltd., (2004) 9 SCC 204.

3. LIMITATIONS Precaution has to be taken that the presumption under this section may not be so stretched as to permit suspicion taking the place of proof. However, no hard-and-fast rule can be laid down. 43 43 Ganesh Lal v. State of Rajasthan, (2002) 1 SCC 731 (para 14) : 2002 CrLJ 967.

4. STRENGTH OF PRESUMPTIONS In the facts and circumstances of a given case, relying on the strength of the presumption under this section, the Court may dispense with the direct proof of certain facts as can be safely presumed to be necessarily existing by applying the logic and wisdom underlying this section. 44 44 Ganesh Lal v. State of Rajasthan, (2002) 1 SCC 731 (para 17) : 2002 CrLJ 967.

5. SOME EXAMPLES OF STATUTORY PRESUMPTIONS See Sections 118 , 119-122 , 137 of the Negotiable Instruments Act ; Sections 53 and 101 of the Transfer of Property Act ; Sections 6 of the Land Acquisition Act (I of 1894). There are various other statutory presumptions.

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6. COMMON COURSE OF NATURAL EVENTS Under this section the court may presume the existence of any fact which it thinks likely to have happened regard being had to the common course of natural events, human conduct and public and private business in their relation to the facts of the case. In a case under Prevention of Corruption Act where the accused took out the currency notes and flung them across the wall, the Supreme Court held that the court may presume that the accused must have obtained them from the witness who a few minutes earlier was shown to have been in possession of the notes. 45 Where it was found that the persons behind the manufacturer and the buyer were the same, it was apparent that the buyer was associated with the manufacturer, i.e., the assessee and then regard being had to common course of natural events, human conduct and public and private business it could be presumed that they had interest, directly or indirectly, in the business of each other as per Section 114. 46 Where the accused terrorist, short of participating in the act ual attack on Parliament, did everything to set in motion the diabolic mission, the Court could draw a presumption under this section that, having regard to the natural course of events and human conduct, he had nexus with the co-conspirators who were killed and all of them together hatched the conspiracy to attack the Parliament House and in that process to use explosives and other dangerous means. 47 Section 114 of the Evidence Act does not lay down any hard and fast rule for raising presumptions. It gives a few illustrations from various walks of life. The section provides a guiding principle, namely, that the court shall be led by its own experience and knowledge of the common course of natural events, and public and private affairs. 48 This expression is appropriate in regard to such matters as the period of gestation or the continuance of life. The legitimacy of a child may have to be decided by reference to the term during which in the ordinary course of nature gestation may continue. A case of adultery must be judged having due regard to the social conditions and the manner in which the parties are accustomed to live. If there is evidence enough to show that they had reasonable opportunities of having sexual intercourse in the conditions of life in which they live for days together then the Court may be justified in raising an inference of adultery. 49 From the fact that a man and woman lived together for a number of years under the same roof a presumption can be drawn that they lived as husband and wife and their children were legitimate. 50 Where there is a long and continuous course of co-habitation between a man and woman, the law presumes in favour of marriage and against concubinage under this section, even in the absence of satisfactory direct evidence of marriage. Such presumption of marriage can only be repelled by evidence of the clearest character. 51 Failure to reply to a suit for maintenance creates a presumption that the man admits marriage. 52 Under this section the Court is entitled, if it appears reasonable in all the circumstances of the case, to draw an inference that the accused committed a murder or took part in its commission, from the facts that he has been found in possession of the property proved to have been in the possession of the murdered person at the time of the murder or is able to point out the place where such property is concealed and admits having concealed it there and that he fails to give any explanation of his possession of the property, which can be accepted. The possession of stolen ornaments belonging to the murdered soon after the murder is, therefore, material evidence against the accused not only on the charge of robbery but also on the charge of murder. 53 A Government servant was found in possession of assets disproportionate to his earnings and he was also not able to explain it, a presumption of corruption arose. 54 There was an allegation in an election petition that the respondent threatened voters with divine displeasure in his speeches. The petitioner did not produce any witness, nor notes made by him at the speeches. His assertion was presumed to be not true. 55 The statement of a judge as to what happened before a court or tribunal is generally presumed to be correct. 56 In case of preventive detention on the recommendation of an Advisory Board constituting a judge made after hearing lengthy arguments, it was held that the detention must be presumed to have been done on consideration of all material. 57 When an Income Tax Officer extended time for filing a return it must be presumed that extension was granted after satisfying himself that a case for extension was made out. 58

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The Allahabad High Court, dissenting from the view expressed in 1940 Peshawar 47, held that Section 114 itself does not consider the words "course of natural events" as interchangeable with animal conduct. If the words are not so interchangeable then it is obvious that the facts relating only to human conduct can be taken into consideration. The conduct of an animal, such as, a calf going to the house of its master and in starting to lick the udders of its mother does not appear to be covered by the term 'course of natural events'. 59 Court can presume under Section 114 that in common course of natural events hemp can catch fire even without any misconduct on the part of the railway administration or its servants. 60 In Civil and criminal cases, the court presumes the existence of facts based on the materials (documents and oral testimony) placed before it. Such presumptions are the result of the judge's own experience, human conduct, practices in public and private business as applies to the facts of the particular case. 61 As an example of an inference to be drawn from the conduct of a person the following is apposite. It is settled law that where property is entrusted to a servant, it is the duty of the servant to give a true account of what he does with the property so entrusted to him. If such servant fails to return the property or to account for, gives an account which is shown to be false and incredible, it is ordinarily a reasonable inference that he has criminally misappropriated the property so entrusted to him and dishonestly converted it to his own use. In such cases the court is entitled to draw hostile inferences and presumptions from the act ion and statements of the servant. 62 Where one joint owner was permitted to be in possession for a long period of over 50 years and that too without any protest or objection, a presumption arose that he was the exclusive owner. 63 A statement in a judgement as to things happening before the judge is not ordinarily permitted to be questioned. 64 A catalogue which embodies a statement of the firm regarding the price at which it is prepared to sell its articles is not hearsay and is admissible in evidence in proof of the price. 65 There is presumption that every person in his private character does his duty and unless the contrary is proved, it is presumed that all things are rightly and regularly done. 66 It is quite probable in the natural course of events that small shareholders would not be aware of the affairs of a public limited company (here its monetary transactions) and the same would be the case with a third party. 67 45 Hazari Lal v. State (Delhi Admn.), AIR 1980 SC 873. 46 Calcutta Chromotype Ltd. v. CCE, (1998) 3 SCC 681 : (1998) ELT 202, relying on Union of India v. Atic Industries Ltd., (1984) 3 SCC 575 : 1984 SCC 217(Tax) ; CCE v. T.I. Millers Ltd., 1988 SCC 347(Tax) ; Snow White Industrial Corporation v. CCE, 1989 SCC 431(Tax) ; TELCO v. State of Bihar, AIR 1965 SC 40; LIC of India v. Escorts Ltd., (1986) 1 SCC 264 and McDowell and Co. Ltd. v. CTO, 1985 SCC 391(Tax) . Contra : CCE v. Abex Rubber Co., (1998) 9 SCC 400 : (1998) 99 ELT 489. 47 State (N.C.T. of Delhi) v. Navjot Sandhu, (2005) CrLJ 3950, 4037-38 (para 18) : (2005) 11 SCC 600. 48 Mahabir Singh v. Anant Ram, AIR 1966 All 214. 49 Devyani v. Kantilal Gamanlal, (1963) 65 Bom LR 24. 50 Balasubramanyam v. Suruttayan, AIR 1992 SC 756. 51 Chandu Lal Agarwala v. Khalilar Rahman, (1942) 2 Cal 299; Parameshwari Bai v. Muthojirao Sciendia, AIR 1981 Kant 40; Algammal v. Rakkammal, AIR 1982 Mad 354; The presumption extends to the legitimacy of children also. Ashok Kumar v. Usha Kumari, AIR 1984 Del 347; Mangilal v. Chandrawati Kumari, (1911) 38 IA 122; Rajagopal Pillai v. Pakkiam Ammal, (1968) 2 Mad LJ 411(DB) ; Mandakini v. Chandrasen, AIR 1986 Bom 172 living together since 1944; Badri Prasad v. Dy. Dr. of Consolidation, AIR 1978 SC 1557, (social living as man and wife for 50 years). 52 Shankerappa v. Sushalibai, AIR 1984 Kant 112; Virendra Singh v. Vimal Kumar, AIR 1976 SC 2169 (presumption from omission to contradict the statement of a witness). 53 Ramprashad v. King Emperor, AIR 1949 Nag 277.

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54 State of Maharashtra v. Wasudeo Ramchandra Kaideilwar, AIR 1981 SC 1186. 55 V.K. Saklecha v. Jagjiwan, AIR 1974 SC 1957. 56 Union of India v. T.R. Varma, AIR 1957 SC 882 : 1958 SCR 499. 57 State of Rajasthan v. Shamsher Singh, AIR 1985 SC 1083. 58 Commissioner of Income Tax v. M. Chandrashwar, AIR 1985 SC 114. 59 Ram Bharosey v. State, AIR 1952 All 481. 60 Dominion of India v. Gobardandas Shrobb, AIR 1952 Cal 384. 61 Mahabir Singh v. Anantram, AIR 1966 All 214. 62 Sona Meah v. King Emperor, (1924) 2 Ran 476, 477 : AIR 1925 Rang 47; See also Emperor v. Abdul Gani, (1925) 27 Bom LR 1373. 63 Khan Ali Md. Khan v. Abdul Rahim, AIR 1981 J&K 57. 64 State v. Orissa Oil Industries Ltd., AIR 1982 Ori 245. 65 Hasanali v. Dara, ILR (1948) Nag 922. 66 Zeenat v. Prince of Wales Medical College, AIR 1971 Pat 43. 67 Ramesh B. Desai v. Bipin Vadilal Mehta, (2006) 5 SCC 638, 652-53 (paras 18 and 20) : AIR 2006 SC 3672.

7. HUMAN CONDUCT In a case involving the murder of her husband, the wife of the deceased stated that the incident occurred after she had cooked dinner and served the same to her father and husband whereas the mother-in-law of the deceased stated at one place in her evidence that the dinner was not cooked when the incident occurred. The Court, considering the fact that in a village, more so in a place, where there is no electricity, the villagers after finishing their work normally have their meals early, held that the evidence of the wife fitted into the normal conduct of a villager and hence, in spite of contradicted by the evidence of the other witness, was worthy of acceptance. 68 Where the father was being attacked in the presence of his sons and received as many as five injuries, the sons are not expected to be mute spectators. Rather, in an ordinary course of human conduct, they are expected to intervene and retaliate in self defence to save his father from the clutches of the assailants. 69 It is not uncommon in the companies to advance loan on interest in preference to purchase of shares as a person may be certain about the return of money vis-a-vis the uncertainty as regards purchase of shares in which case the person investing in the shares may lose, if not entirely, to some extent. 70 In Mousam Singha Roy v. State of W.B. , 71 the Supreme Court held that sharing of the plan with a stranger to commit murder and choosing a busy place for committing that crime, is opposed to normal and ordinary human conduct. The Supreme Court observed that it would be opposed to human conduct that a person, after committing a serious crime like murder, would still be wearing the bloodstained clothes even four days after the murder. 72 Where the highly interested witness, though he had a scooter and a tractor in his house, went on foot to the police station at the distance of about 6-7 Kms. to inform of incident to the police, his conduct was considered to be opposed to human conduct and it was held to be not safe to rely on his evidence. 73 In a case the Supreme Court agreed with the view of the Labour Court that it was difficult to accept that any normal person, who met another person for the first time in his life, would straightaway abuse him without any rhyme or reason. 74 In a case, the deceased had started making complaints against the accused, the Seer of Kanchi Mutt three years prior to his murder and some of the complaints were addressed to high-ups but there was absolutely no evidence or material collected during investigation which might indicate that the accused had ever shown any resentment against the deceased for his allegations regarding the personal character of the accused or discharge of his duties. The Supreme Court observed that it did not

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appeal to reason that after keeping quiet for over three years, the accused suddenly decided to have the accused murdered and entered into a conspiracy for the said purpose. 75 The Supreme Court observed that it was against human conduct that sodomy would be committed at 8 o'clock in the morning and that too continuously for seven days, as was alleged in the instant case. Again it was against human conduct that after closing the door, the two persons who brought the boy to the Swami, would be asked to be in the room. Conviction and sentence of the accused was set aside. Undoubtedly, there were many other inconsistencies in evidence. 76 An accused person's conduct or reaction (or lack of it) by itself, cannot be a ground for arriving at a conclusion that he is guilty of commission of crime. Formation of another opinion is also possible. No hard-and-fast rule having any universal application with regard to the reaction of a person is a given circumstance can be laid down. One person may lose equilibrium and balance of mind, but another may remain a silent spectator till he is able to reconcile himself and then react in his own way. Merely because the accused did not cry or weep on witnessing the dead bodies of his wife and daughter, cannot be made basis for inferring his guilt. 77 On the basis of nomenclature implying blood/other relationship such as "mama" (uncle) or "bhagina" (nephew), blood relationship cannot be inferred. The Apex Court observed that very often because of closeness of the families even distant relative are addressed as uncle and sometimes even persons unrelated are referred to as uncle i.e. chacha or mama . Some more evidence should be adduced to establish such relationship. 78 68 Moti v. State of U.P., (2003) 9 SCC 444 (para 12) : AIR 2003 SC 1897 : 2003 CrLJ 1694. 69 State of M.P. v. Mishrilal, (2003) 9 SCC 426 (paras 14 and 16) : AIR 2003 SC 4089 : 2003 CrLJ 2312. 70 Sangramsingh P. Gaekwad v. Shantadevi P. Gaekwad, (2005) 11 SCC 314, 359 (para 106). 71 Mousam Singha Roy v. Sate of W.B., (2003) 12 SCC 377 (paras 17 and 25). 72 Khalil Khan v. State of M.P., (2003) 11 SCC 19 (para 7) : AIR 2003 SC 4670 : 2003 CrLJ 5046. 73 Mohinder Singh v. State of Punjab, (2004) 12 SCC 311, 318 (para 12) : AIR 2003 SC 4399 : 2003 CrLJ 5002. 74 Madurantakam Cooperative Sugar Mills Ltd. v. S. Vishwanathan, (2005) 3 SCC 193, 197 (para 16) : AIR 2005 SC 1954. 75 Jayendra Saraswathi Swamigal v. State of T.N., (2005) 2 SCC 13, 17 (para 6) : AIR 2005 SC 716 : 2005 CrLJ 883. 76 Gowrishankara Swamigalu v. State of Karnataka, (2008) 14 SCC 411, 420 (para 21). 77 Dinesh Borthakur v. State of Assam, (2008) 5 SCC 697, 708-09 (paras 49 and 47) : AIR 2008 SC 2205. 78 Virendra Kumar Tripathy v. Nirmala Devi, (2006) 3 SCC 615, 619-20 (para 13) : AIR 2006 SC 1724.

8. NON-EXAMINATION OF A NUMBER OF WITNESSES Where the prosecution did not examine a number of witnesses cited by the investigating agency, presumption cannot be drawn against the prosecution. 79 79 Nachhatar Singh v. The State, 1994 CrLJ NOC 327(J&K) .

9. NON-EXAMINATION OF INVESTIGATING OFFICER In a criminal trial, non-examination of the investigating officer does not per se vitiate the trial. 80 80 Behari Prasad v. State of Bihar, 1996 CrLJ 1653 (para 22) (SC) : AIR 1996 SC 2905.

10. THEFT AND STOLEN GOODS [ILLUSTRATION (a )]

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This illustration raises two presumptions, viz., that the person in possession of stolen goods soon after the theft is either (1) the thief, or (2) has received the goods knowing them to be stolen. The question as to which of the two presumptions is to be drawn will depend upon the facts of each particular case. This is a presumption which the court is not bound to draw but it is in the option of the court to draw it. But it does not, in any way, shift the burden of proof to the accused. The presumption under this illustration arises only when the prosecution has established, (1) the ownership of the article in question, (2) theft of the article, and (3) its recent possession by the accused. Before a presumption can arise, it must necessarily be proved that the goods found in possession of the accused had been stolen. 81 Where the prosecution failed to prove that the theft of the ornaments of the deceased and their murder formed the part of the same transaction, no presumption could be drawn from their recovery from the possession of the accused that they had committed the murder. 82 The presumption contemplated in this illustration is not a presumption as to the fact of possession, but the presumption of guilt which arises from the accused not accounting for his possession of stolen goods which he is proved to be in possession soon after the theft. This presumption of guilt cannot, therefore, arise before such actual possession is proved, or before the accused, an opportunity being given, fails to account for his possession. 83 The question whether presumption under Section 114, illus. (a ) against the accused is a matter which depends upon the evidence and the circumstances of each case. Some of the circumstances are:--the nature of the recovered articles, the manner of their acquisition by the owner, the nature of evidence about their identification, the manner in which the articles were dealt with by the accused, the place and circumstances of their recovery, the length of the intervening period and the ability or otherwise of the accused to explain the recovery. 84 A presumption of fact must be such as would naturally arise. Regard must be had to all the material circumstances before determining whether presumption could justifiably be drawn. 85 The onus of proving all the ingredients of the offence charged, never shifts from the prosecution in cases in which a presumption under Section 114, illus. (a ) can be invoked. 86 The drawing of presumption under Section 114, illus. (a ) is discretionary and a court may refuse in the special circumstances of a case to draw such a presumption. 87 Where the reliable evidence of the eyewitness had proved the guilt of dacoity against only the two accused, the five other accused found with looted property could not be held guilty of dacoity with murder. 88 Mere recovery of an article belonging to the deceased from the possession of the accused cannot connect him with the offence of murder by invoking this section. 89 The presumption raised under illustration (a ) of Section 114 does not contravene the provisions of Article 21 of the Constitution. 90 Where there is no proof whether the moveable property of the deceased was found in possession of the accused, whether they were removed from the possession of the deceased during his life time or after his death, no presumption can be drawn under Illus. (a ) of Section 114 that he was a thief or receiver of stolen property. 91 Where the accused snatched the attache containing cash by sprinkling chilli in the eyes of the victims who correctly identified them during the T.I. parade and the looted property was recovered as a result of their disclosure, presumption under Section 114 was attracted and involvement of the accused in the offence was proved. 92 In the absence of any other circumstance it is not possible to raise a presumption by invoking illustration (a ) to S. 114 on the basis of the recovery that the accused is the person who committed the offence of murder, particularly when the recovery itself was doubtful. 93 Where the recovery allegedly made at the instance of the accused was not proved beyond reasonable doubt, presumption as to the accused being the perpetrator of the crime could not be raised. 1 A property cannot be presumed to be stolen property simply because it was purchased by the purchaser at a throw away price. 2 The mere recovery of stolen goods in robbery-cum-murder case at the instance of the accused by itself does not connect the accused with the murder and so Section 114 of Evidence Act cannot be invoked to connect the accused with the murder. 3 In a case of theft by loading the puppy husk of another in the truck, merely because the accused was the brother of the

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truck owner, in absence of any cogent evidence a presumption could not be raised in favour of prosecution story that the accused, being a driver of the truck, had committed theft by loading the puppy husks belonging to others in the truck. 4 The Supreme Court has held that the presumption permitted to be drawn under this illustration has to be read with the important time-factor. 5 If the gap of time is too large, the presumption that the accused was concerned with the crime itself gets weakened. The presumption is stronger when the discovery of the fruits of crime is made immediately after the crime is committed. 6 The question what period is covered by the expression "soon after" depends upon the circumstances of each case. The court is not bound to draw this presumption, and it must always ask itself whether in the circumstances of the particular case the presumption is one which in fairness to the accused can be drawn. 7 In a subsequent decision the Supreme Court held that one year gap between murder and recovery did not destroy the presumption that the person in possession was himself the robber and murderer. Recent possession is a question of fact. No time-limit can be prescribed. 8 Where stolen articles of a very common description, consisting of jewellery of a very ordinary type and by no means of distinctive appearance, were found in the possession of a person six months after the commission of a dacoity, such possession was not deemed sufficient to call upon the accused to explain his possession. Where a stolen old brass bell was found in the possession of an old iron dealer thirteen days after the theft, the presumption under this section was not drawn. It was held similarly where a stolen buffalo was found in the possession of a person four or five months of the theft. 9 The plain meaning of illus. (a ) to Section 114 is that both presumptions are possible and which of the two should be adopted in a case depends upon the circumstances. If the interval between the theft and the accused being found in possession of the stolen articles is very small, the presumption can be that he is the thief. If, on the other hand, the interval is relatively long, the presumption can be that he is the receiver. If the interval is very long, the court may not even draw any presumption. 10 Mere recovery of jewelleries etc. belonging to the informant after two months of the occurrence from the accused was not sufficient to convict them for murder by taking recourse to the presumption under Section 114, illustration (a ) but they could be convicted under Section 411,I.P.C. 11 Accused was found in possession of stolen goods within two days of theft. He failed to furnish any explanation for his possession. Held that, the presumption under illus. (a ) of Section 114 can be drawn and the accused can be convicted under Section 411 , IPC , as receiver of stolen property. 12 In a case of dishonestly receiving of stolen of property, where stolen cash in denomination as stated by the prosecution witness who had handed over to the deceased on date of offence was found in possession of the accused and the bag in which the cash was kept was also seized from the possession of the accused and the same was identified by the wife of the deceased, and the seized cash contained slips of State of Bank of India corroborating the evidence that the cash after withdrawing from said Bank was handed over to the deceased, in absence of any claim made by the accused that the cash belonged to him and any explanation of the possession of the stolen cash, the presumption under Section 114 of the Evidence Act would be invoked that the accused was receiver of the stolen goods. 13 The accused was charged for receiving stolen cycle. The alleged document showing that the cycle was pledged with him, was not proved. He did not give any explanation with regard to other cycles found in his possession. Held that, a presumption under Section 114, illus. (a ) could be raised and the accused can be convicted under Section 411,I.P.C. 14 The mere fact of recent possession of stolen property is, in general, evidence of theft, not of receipt of stolen property with guilty knowledge. 15 It would be a reasonable presumption that people had committed theft or burglary if they were seen the next day with the stolen property in circumstances which suggested that they were dividing up the booty. Such an inference would not be an inference of law; it would be a pure inference of fact. It would be open to the accused to explain that they were there for some purpose, but in the absence of such explanation, the presumption will be that they had taken part in the offence 16 and mere lapse of one month in arresting of the accused and making recovery of such goods would not compel the Court, not to raise such presumption. 17 As soon as the prosecution produces evidence to the effect that the person has been found in possession of the money stolen, the presumption at once arises under Section 114 that the possessor

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is either a thief or the receiver of the stolen property and this presumption when unexplained shall be regarded as conclusive fact. 18 Presumption whether a person is a thief or receiver of stolen property depends upon facts and circumstances of each case. The accused, found in possession of Telegraph Wires, denied recovery but gave no satisfactory explanation of their possession. Held that the accused can be presumed to be received of stolen goods. 19 Where the incriminating article is one which may change hands quite frequently and is commonly available and the recoveries were made nearly four months after theft, presumption under Section 114 illus. (a ) cannot be raised against the accused. 20 When the recovery was after six months it can be said to be of recent possession, unless explained by the accused. 21 The words 'receives' and 'retains' are generally used together and though illus. (a ) expressly refers to dishonest receipt of stolen property, a presumption about dishonest retention of the stolen property may equally be made by virtue of that illustration even though in the charge it is stated that the accused dishonestly received (not retained) the stolen property. 22 In order to rebut the presumption under Section 114, illus. (a ) as regards recent possession of stolen goods by the accused, the explanation of the accused of such possession must be so reasonably convincing as to throw a doubt on his guilt; but a mere denial of the prosecution story, or any assertion inconsistent with facts proved by the prosecution cannot amount to an explanation to make the presumption unavailable to the prosecution. 23 Where the accused was found merely sitting in a taxi after it was stolen, they cannot be in possession of the taxi; the presumption against them of theft does not arise. 24 Where ornaments were recovered from an open filed which is accessible to all and sundry, it cannot be concluded that the accused was in possession of these articles as there is presumption of innocence of the accused and heavy onus rests on the prosecution to dislodge the presumption. 25 Even though the place where the articles were discovered was accessible to others, the fact that those articles were buried till the accused dug them out, shows that he must have burried them there. 26 Though the stolen property was not recovered from the house of the accused, but there was evidence to show that the articles were secreted in a bush and brought out by the accused, it was held that the property was in possession of the accused. 27 A watchman was murdered and jewels were robbed. There was evidence to show that the accused was present at the time of murder. Later the stolen jewels were recovered at his instance from a hidden place in his house. His conviction under Section 302 read with Section 392 of is proper. 28 Contraband gold was being carried on the person of the nephew of the accused. Both were travelling together. It was held that the nephew was used as the instrument of uncle's possession and the nephew was carrying the gold for the uncle. 29 Presumption under Section 114, illus. (a ) is discretionary and may not be available in all cases. Where the factum of theft and recent possession was proved but there was no evidence to show that the property was in possession of someone else before it passed into the hands of the accused, presumption would be that the accused is either a thief or a receiver of a stolen property. 30 If a stolen property, almost at the moment it is stolen, is passed on by the thief to a companion, the proper inference to be drawn is that the second person (companion) is in concert with the thief and not that he merely received the stolen property. 31 No presumption under Section 114, illus. (a ) can be drawn from the mere fact that the stolen medicine, was recovered from a box kept underneath the accused's bed-sheet unless the prosecution also proves that no one other than the accused had access thereto. 32 If the court comes to the conclusion on facts that the accused has hidden the property, one important step in resorting to the aid of illus. (a ) to Section 114, namely possession, is satisfied. 33 In order to draw presumption under Section 114, illus. (a ), proof of possession of stolen goods but not of possession of the place where those goods were hidden and found, is necessary. 34

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A presumption arises against a person found in possession of stolen goods soon after theft. The word 'possession' as used in Section 114(a), implies not only dominion but also consciousness in the mind of the person having such dominion. Where the facts prove exclusive possession, mere knowledge is enough to prove 'dominion' but where the facts indicate 'joint possession', there should be something in the evidence to show that this knowledge is not mere knowledge but guilty knowledge. 35 Where articles belonging to the deceased family were recovered from the possession of the accused soon after the incident which they could not explain and the murder and robbery of the articles were found to be part of the same transaction, it could be concluded that the accused and none else had committed murders and robbery. 36 Where property stolen in dacoity was recovered from the accused within 24 hours of the incident, inference as to the commission of dacoity could be drawn against them. 37 Where the accused came into possession of the incriminating articles (stolen ornaments) soon after the crime. Accused No. 1 sold one of the articles to the prosecution witness, the shopkeeper. Other articles were found concealed at the places shown by the accused within three weeks. Accused No. 1 and 2 were arrested the very next day of the crime and the ornaments found in their possession were concealed before their arrest. The third accused was arrested ten days after the occurrence and by that time the stolen articles were found concealed about which he gave information soon after his arrest. The circumstance of recovery of stolen/incriminating articles within reasonable time after the occurrence at the places pointed out by the accused, leads to the presumption as to the commission of the offence by them. 38 Mere fact of knowledge of the accused of the existence of stolen property in a certain place accessible to all is not conclusive proof of possession of those articles by the accused. 39 The illustration of S. 114(a) can profitably be used in a case where the prosecution brought material that there was recovery of money accepted as illegal gratification from the pocket of the accused. 40 Time factor.-- While raising the presumption under Section 114(a) time factor between the date of the offence and recovery of the stolen property from the possession of the accused would play a significant role. 41 Test for raising the presumption.-- Recovery of stolen property from the possession of the accused enables a presumption as to commission of offence other than theft or dacoity being drawn against the accused so as to hold him a perpetrator of such other offences on the following tests being satisfied : (i) the offence of criminal misappropriation, theft or dacoity relating to the articles recovered from the possession of the accused and such other offences can reasonably be held to have been committed as an integral part of the same transaction; (ii) the time-lag between the date of commission of the offence and the date of recovery of articles from the accused is not so wide as to snap the link between recovery and commission of the offence; (iii) availability of some piece of incriminating evidence or circumstances, other than mere recovery of the articles, connecting the accused with such other offence; (iv) caution on the part of the Court to see that suspicion, howsoever strong, does not take the place of proof. 42 Double presumption.-- It was alleged that two persons snatched away the complainant's gold chain. One of the accused pointed out the jewellery shop owner who purchased the gold chain from the other accused. It was held that from the conduct of the other accused the Court might presume that he was "in possession" of the gold chain. However, a further presumption based on that presumption that the other accused was either the thief or the receiver of the gold chain knowing it to be a stolen good, could not be drawn as it would amount to 'double presumption'. A presumption based on another presumption is not permissible under law. 43 81 Sohan Singh v. State, ILR (1955) Patiala 601. 82 Raju Ram v. State of Rajasthan, 1994 CrLJ 2348(Raj) . 83 Emperor v. Hari, (1904) 6 Bom LR 887, 893; See Satya Charan Manna v. Emperor, (1924) 52 Cal 223 : AIR 1925 Cal 666; The Crown v. Saifal, (1936) 18 Lah 227; Nand Lal v. King-Emperor, (1941) 17 Luch 182; Kishore v. State, ILR (1951) Raj 761. 84 Ghanshyam Das Shrivatsava v. State of M.P., AIR 1973 SC 1183; Baiju v. State of M.P., AIR 1978 SC 522; A. Deivendran v. State of Tamil Nadu, 1998 CrLJ 814 (para 20) : AIR 1998 SC 2821.

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85 Jamnadas Parashram v. State of M.P., (1963) 1) CrLJ 433 : AIR 1963 MP 16. 86 In re : Shaik Server, AIR 1957 AP 1006; Badal Samser Ali v. State, AIR 1952 Assam 97; Bama Jena v. State, AIR 1958 Ori 106; Umesh Mukund Mashelkar v. State, 1977 CrLJ 298(Goa) ; Sadasiv Das v. State of Orissa, AIR 1958 Ori 51. 87 Sadasiv Das v. State, 1958 Ori 51. 88 State of M.P. v. Samaylal, 1994 CrLJ 3407 (para 9) (MP). 89 Surjit Singh v. State of Punjab, AIR 1994 SC 110 (para 7). 90 State v. Parkash Singh, AIR 1956 Punj 224. 91 Guman v. State of M.P., 1989 CrLJ 1425(MP) . See also Kamal D. Gujar v. State of M.P., 2008 CrLJ 532(NOC) (MP) . 92 Ramesh Kumar Soni v. State of M.P., 1997 CrLJ 3418(MP) . 93 Ram Charan v. State of U.P., 1997 CrLJ 3198(All) . 1 Babudas v. State of M.P., 2003 CrLJ 2536 (para 4). 2 1978 Raj Cr C 145. 3 State of Maharashtra v. Ishwar Smabhaji Babar, 2004 CrLJ 438, 439 (para 5) (Bom) : 2004 (1) Bom CR (Cri) 58 : 2003 All Mah R 1878(Cri) . 4 Ghewar Ram v. State of Rajasthan, 2003 CrLJ 377, 378 (para 10) (Raj). 5 Tulsi Ram Kanu v. State, AIR 1954 SC 1. 6 Shivappa v. State of Mysore, AIR 1971 SC 196; Harendra Nath Bhattacharya v. Kaliram Das, AIR 1972 SC 246; Ayodhya Singh v. State of Rajasthan, AIR 1972 SC 2501. 7 Emperor v. Mavji Nanji, (1941) 43 Bom LR 629; Alisher v. State of U.P., AIR 1974 SC 1830; Ganga Singh v. State of Rajasthan, 1978 Cr. LJ 269; (stolen wrist watch--easily available in market recovered four months later--no presumption can be drawn); Kirpa v. State, AIR 1952 HP 68. 8 Earabhadrappa v. State of Karnataka, AIR 1983 SC 446. 9 Emperor v. Sughar Singh, (1906) 29 All 138; Nga Yauk v. Queen-Empress, (1885) SJLB 366; Goga v. State of J&K, AIR 1959 J&K 105; Emperor v. Mavji Nanji, (1941) 43 Bom LR 629; Hashim v. Crown, (1942) Kant 186. 10 Pershadi v. State of Allahabad, 1955 CrLJ 1125 : AIR 1955 All 443; Chandra Pal v. State of Allahabad, 1954 CrLJ 1439 : AIR 1954 All 684; (time-factor is relevant to draw the presumption) Kishan Sarma v. State of Assam, AIR 1968 Assam 13; Chavadappa Pujari v. Emperor, AIR 1945 Bom 292; In re : Singaram, AIR 1954 Mad 152 (dissenting from). 11 A. Deivendran v. State of Tamil Nadu, 1998 CrLJ 814 (para 22) : AIR 1998 SC 2821. Recovery of crime articles from accused after a long delay of three months, no presumption of involvement in crime, Shabad Pulla Reddy v. State of A.P., AIR 1997 SC 3087 : 1997 CrLJ 3753. Also see Union Territory of Goa v. Boaventura D'Souza, 1993 CrLJ 181 (para 8) (SC) : AIR 1993 SC 1199; Manoj Kumar v. State of Haryana, 2008 CrLJ 3128, 3136-37 (para 29) (P&H). 12 Virumal Mulchand v. State of Gujarat, AIR 1974 SC 334 : 1974 CrLJ 277. Murder-cum-dacoity, accused in possession of stolen article after two days of occurrence, not concealing it, keeping it on person, presumption of receiving stolen property and not that of involvement in dacoity, Net Raj Singh v. State of M.P., (1997) 3 SCC 525 : 1997 SCC 506(Cri) . Recovery of ornaments of deceased at instance of accused proved but no evidence to connect him with offence of murder, presumption of receiving property known to be stolen could be drawn against him, Public Prosecutor v. Yerra Arjuna, 1998 CrLJ 179(AP) ; Surjit Singh v. State of Punjab, 1993 CrLJ 3901 (para 7) (SC); Ganesh Lal v. State of Rajasthan, (2002) 1 SCC 731 (para 15) : 2002 CrLJ 967; Sujan Kar v. State of W.B., 2008 CrLJ 789(NOC) (Cal) . 13 Venipati Kanuka Rao v. State of A.P., 2004 CrLJ 877, 879 (para 15) (AP) : 2004 (2) Andh LT (Cri) 513 : 2004 (2) Andh LD (Cri) 227. 14 Satnarain Sao v. State of Bihar, AIR 1972 SC 1561.

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15 Nga Kywet v. Queen-Empress, (1900) 1 LBR 39; Nga Don Be v. The Crown, (1902) 1 LBR 332; Karpini v. Queen Empress, (1896) PJLB 276; Mi Myit v. Queen-Empress, (1897) 1 UBR (1897-1901) 171. 16 Emperor v. Chhidda, (1944) All 694. Recovery of stolen articles from possession of accused 'soon after' commission of dacoity, presumption of being dacoits, State of Karnataka v. Rajan, 1994 CrLJ 1042 (para 39) (Kant); Gulab Chand v. State of M.P., AIR 1995 SC 1598 (para 4); Kunwarlal v. State of M.P., 1999 CrLJ 3632 (paras 33 to 35) (MP); Shri Bhagwan v. State of Rajasthan, 2001 CrLJ 2925 (paras 8-10 and 13) (SC) : AIR 2001 SC 2342; Gilbert Pereira v. State of Karnataka, AIR 2004 SC 4454 (para 46); Kanti Lal v. State of Rajasthan, (2004) 10 SCC 113, 115 (para 5); Anwar Khan v. State of M.P., 2004 CrLJ 1653, 1659 (paras 21 & 22) (Chh.); State of Maharashtra v. Sahebrao, 2005 CrLJ 2788, 2800 (para 65) (Bom); State of Orissa v. Dayanidhi Bisoi, 2003 CrLJ 123, 138, 139 (paras 45 to 49) (Ori) : (2002) 94 Cut LT 642 : (2002) 23 OCR 564 : 2002 (2) Ori LR 495. 17 Thavaraj Pandian v. State, 2003 CrLJ 2642, 2648, 2649 (paras 30, 35 & 37) (Mad) : 2003 (2) Cur Cr R 54 : 2003 (1) Mad LW (Cri) 413. 18 Manipur State v. Laisram Bokul Singh, AIR 1954 Manipur 13. 19 State of Orissa v. Udaya Padhan, AIR 1965 Ori 123. See also Ram Karan v. State of Rajasthan, 1996 CrLJ 3521 (paras 35 and 39) (Raj). 20 1984 (2) Cr LC 23. 21 State of M.P. v. Manka, ILR 1959 MP 590 : 1960 JLJ 358; State v. Dhanmati Kisanin, ILR 1965 Cut 323. 22 Bama v. State, (1958) Cut 131. 23 Lakshman v. Government of Mysore, AIR 1952 Mys 83. 24 State of Maharashtra v. Najibullah Shaikh, (1984) 86 Bom LR 156. 25 Trimbak v. State of M.P., AIR 1954 SC 39; Shoba Param v. State of M.P., AIR 1959 M.P. 125. 26 Karbi Babu v. State of Saurashtra, 1955 CrLJ 1522 : AIR 1955 Sau 93; Horilal v. State, AIR 1953 All 572. 27 Koli Jera Jodha v. State of Saurashtra, AIR 1954 Sau 115; Chunilal v. Union of India, AIR 1964 Him. Pra 27. 28 1970 Mad LJ (Cri) 161 (Mys). 29 Gopal Dass v. State, AIR 1959 Punj 113. 30 Rajjaua v. State, AIR 1959 All 718. 31 Ganga v. State, AIR 1957 All 678. 32 Phanindra Kumar v. State, AIR 1972 Gauhati 127(Assam) . 33 In re : Kirukku Mayandi, AIR 1958 Mad 384. 34 Kacharji Hariji v. State of Gujarat, AIR 1969 Guj 100. 35 Khuman v. State, (1955) 2 All 464. 36 Ronny v. State of Maharashtra, AIR 1998 SC 1251 : 1998 CrLJ 1638 (para 31) (SC). Recovery of stolen article soon after robbery and murder from possession of accused, presumption of committing crimes, Mukund v. State of M.P., AIR 1997 SC 2622 : 1997 CrLJ 3182. Recovery of stolen revolver from possession of accused soon after theft, presumption of committing theft, State of M.P. v. Dhirendra Kumar, AIR 1997 SC 318. See also Ezhil v. State of T.N., AIR 2002 SC 2017 (para 13) : 2002 CrLJ 2799, relying on Sanjay v. State (NCT of Delhi), (2001) 3 SCC 190 and State of W.B. v. Mir Mohd. Omar, (2000) 8 SCC 382; George v. State of Verala, AIR 2002 SC 1647 (para 7); Limbaji v. State of Maharashtra, AIR 2002 SC 491 (para IV(a)); Ganesh Lal v. State of Rajasthan, 2002 CrLJ 967(SC) para 20; Gulab Chand v. State of M.P., AIR 1995 SC 1598 : (1995) 3 SCC 574; Praveen Kumar v. State of Karnataka, (2003) 12 SCC 199, 207 (para 15), relying on Gulab Chand v. State of M.P., (1995) 3 SCC 574 and Shri Bhagwan v. State of Rajsthan, (2001) 6 SCC 296; Dayanidhi Bisoi v. State of Orissa, (2003) 9 SCC 310, 319-320 (para 20) : AIR 2003 SC 3915 : 2003 CrLJ 3697; Geejaganda Somaiah v. State of Karnataka, (2007) 9 SCC 315, (paras 19, 28 and 29) : AIR 2007 SC 1355; Peria Rajendran v. State, 2007 CrLJ 1242, 1246 (para 11) (Mad); Prabhat Mahadav Naik v. State of Maharashtra, 2007 CrLJ 2569, 2572 (para 10) (Bom); Sukhdeo Singh v. State of Rajasthan, 2008 CrLJ 611, 612-13 (para 8) (Raj). 37 Robert Peter Kadam v. State of Maharashtra, 1998 CrLJ 3879 (para 12) (Bom), relying on Gulab Chand v. State of M.P., AIR 1995 SC 1598 : 1995 AIR SCW 2504.

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38 Limbaji v. State of Maharashtra, AIR 2002 SC 491 (para IV(c)) : (2001) 10 SCC 340 : 2002 CrLJ 590. 39 State v. Usman, (1965) 2 CrLJ 569(Ori) ; Motilal v. State, 1959 Pat 54; Kacharji Hariji v. State of Gujarat, 1969 Guj 100. 40 T. Shankar Prasad v. State of A.P., (2004) 3 SCC 753, 761 (para 15) : AIR 2004 SC 1242 : 2004 CrLJ 884; See also Divisional Controller, KSRTC (NWKRTC) v. A.T. Mane, (2005) 3 SCC 254 (paras 5, 7, 9 and 10) : AIR 2004 SC 4761. 41 Ganesh Lal v. State of Rajasthan, (2002) 1 SCC 731 (para 14) : 2002 CrLJ 967. 42 Ganesh Lal v. State of Rajasthan, (2002) 1 SCC 731 (para 15) : 2002 CrLJ 967. See also Saleem v. State of U.P., 2009 CrLJ 126(NOC) (All) . 43 Ramachandran v. State of Kerala, 2009 CrLJ 168, 169-70 (para 10).

11. 'EITHER THE THIEF OR HAS RECEIVED GOODS' In Section 114, Illustration (a) of the Evidence Act, the words "either the thief or has received goods" and more particularly, the word "or" postulates that both the presumptions cannot be drawn simultaneously. This appears to be a pointer to the proposition that one cannot be convicted with both theft and for receiving or retaining stolen property. Section 411 nor Section 414 of the can be applied to the original theft of the property concerned. No person can receive for himself, nor does a person assist himself in concealing. Thus, it appears that simultaneous conviction for dacoity or retaining stolen property by commission of decoity is not permissible. The act of dishonest removal constitutes dishonest reception and so the thief does not commit the offence of retaining the stolen property he stole. The theft and taking and retention of stolen goods form one and the same offence and cannot be punished separately. 44 44 Rafikul Alam v. The State of W.B., 2008 CrLJ 2005, 2010 (para 42) (Cal), following Abdul Jabbar Molla v. Emperor , AIR (31) 1944 Cal 39, 4 [para (f)].

12. EXCLUSIVE POSSESSION The accused confessed to have hidden the stolen articles at particular places and led the Investigating Officer and the Panchas to the spots where stolen property was concealed. The Court held that the accused could be deemed to be in exclusive possession of the articles concealed under the earth though the spots at which they were concealed might be accessible to public. 45 45 Limbaji v. State of Maharashtra, AIR 2002 SC 491 (para IV(b)) : (2001) 10 SCC 340 : 2002 CrLJ 590.

13. JOINT POSSESSION But to raise this presumption legitimately, the possession of the stolen property should be exclusive as well as recent. If, for instance, the articles stolen were found on the person of the accused, or in a locked-up house or room, or in a box of which he kept the key, there would be fair ground for calling on him for his defence; but if they were found lying in a house or room in which he lived jointly with others equally capable with himself of the theft, or in an open box to which others had access, this would raise no definite presumption of his guilt. 46 A postman was charged under Section 52, Post Offices Act, for secreting certain registered articles in an almirah of the house in which the accused lived jointly with his father. The prosecution proved that those articles were found in the almirah. The key of the almirah was with the father. The circumstances that the almirah contained, as part of the registered articles in question, certain other articles belonging to the accused cannot sustain an inference that the almirah was in the exclusive possession of the accused or even in the joint possession with his father. The fact that the accused had opportunity to get at the articles is not sufficient to infer exclusive possession of the articles by the accused. No presumption can, therefore be drawn against the accused that he had secreted them

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from the mere fact that the articles were found in the almirah which, at best, may be regarded as being in the joint possession of the accused and his father. But even an inference of joint possession would not be legitimate. 47 Where a husband was storing looted property in the house and the wife was merely acquiescing in keeping such property, she cannot be regarded as a passive partner in the crime and a charge under Section 412 , IPC ., cannot sustain against the wife. 48 Where the accused was residing in the house with other persons and stolen property was recovered from that house, no presumption can be drawn to hold him guilty under Section 411. 49 Where the stolen property is recovered from an open verandah which is in the joint possession of two accused, conviction of only one accused under Section 411 , IPC , cannot be maintained. 50 Where the stolen property is recovered from a house occupied by several persons, there can be no presumption that the place was in exclusive possession of the accused. 51 In the case of a family living jointly in the same house, the head of the family is presumed to be in possession of any such illicit article found in the house. Possession implies dominion and consciousness in the mind of the person having dominion over an object that he has it and that he can exercise it. Possession must be conscious and intelligent possession and not merely the physical presence of the accused in proximity or even in close proximity to the object. There is no presumption that a father or head of family is in possession of everything contained in his house; neither can it be presumed that he is having control of anything so found. Grave miscarriage of justice, might follow from the application of such a rule. A virtuous father might have the misfortune of having a son living with him, who is an unmitigated rascal and if this presumption is to be made, this virtuous father must be presumed to be in possession of everything brought by the rascal son into the house. 52 Merely because the accused is the head of a family and owner of the house, he cannot be presumed to have constructive knowledge of the hidden instrument used for the offence. 53 The mere fact that an accused person points out the place in which the stolen property is concealed does not give rise to any presumption under this section or justify his conviction for the offence of receiving stolen property, still less for the offence of theft. 54 But where property forming part of the stolen property is produced by a person from his house, a presumption under it can be drawn against him. 55 When an accused makes a statement, "I have concealed the property at a particular place and I will produce it", and if it is discovered in consequence of that statement, it is evidence of his possession, even though the stolen articles are kept or concealed in another man's property, because unless he had possession he would not have kept them at that place. Where, however, an accused without stating that he has concealed stolen property merely produces it from a place to which other people can have access, it is not sufficient to establish his possession even though the property may be concealed, because it is consistent with any other person having done so and the accused may have merely knowledge of it. 56 Recovery in pursuance of information is an important piece of evidence. The only evidence against an accused person was that stolen properties were recovered, on the information given by him, from a hollow of a tree situated in a jungle. Since the land on which the tree stood or the tree itself did not belong to the accused, the mere recovery cannot show that he was in possession of the stolen property or that, after committing the theft, he had kept the article inside the tree. 57 In a case of murder by poisoning, the recovery of incriminating articles from a place which is easily accessible to external agency and not in the exclusive possession of the accused or the articles are not in the exclusive use of the accused, the recovery cannot treated as incriminating piece of evidence. 58 The mere recovery of the articles at the instance of the accused and the absence of any explanation by him as to how he came to know the place of hiding, is not sufficient for the court to conclude that the accused had placed the articles there and he could not have got information is some other manner about the presence of the articles at that place. 59 Unless the connection between the articles alleged to have been stolen and those recovered from the house of the accused has been established, no presumption could be drawn under Section 114(a) either that the person is the thief or receiver of stolen articles. 60

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46 B EST ON E VIDENCE , 12th Edn., S. 212, p. 197. 47 Radha Kishan v. State of U.P., AIR 1963 SC 822. 48 Parsandi v. State, (1963) 1 CrLJ 344(All) . 49 Anirudha Agasti v. State of Orissa, 1985 CrLJ 7(NOC) . 50 Motilal v. State, AIR 1959 Pat 54. 51 Abdul Kareem v. State of Mysore, 1972 CrLJ 217(Mys) . 52 In re : Wahib Basha, AIR 1961 Mad 162; Weston v. Peary Mohan, AIR 1914 Cal 396(SB) ; Emperor v. Budh Lal, (1907) 29 All 598; Managar Koiri v. Emperor, AIR 1936 Pat 512; Mahabir Singh v. State, AIR 1951 Pat 296; Gopinath v. State, 1958 Ori 287. 53 In re : Kodur Thimma Reddy, AIR 1957 AP 758. 54 Emperor v. Yesaba Sakhoba, (1938) 40 Bom LR 927 : AIR 1938 Bom 463. 55 Emperor v. Shivputraya, (1930) 32 Bom LR 574 : AIR 1930 Bom 244; Ameerjan v. State of Mysore, (1951) Mys 210. 56 Emperor v. Chavadappa Pujari, (1944) 47 Bom LR 63 : AIR 1945 Bom 292; Recovery from under a stone or under a birdge cannot be said to be a recovery from an open place. Lachhman Ram v. State of Orissa, AIR 1985 SC 486. 57 Deo Bux v. State, AIR 1956 Bhopal 40. 58 State of Orissa v. Kaushalya Devi, AIR 1965 Ori 38. 59 State of Rajasthan v. Indraj, AIR 1957 Raj 234. 60 In re : Boddu Sanyasi Patrudu, AIR 1957 AP 482; Sabitri Sharma v. State of Orissa, 1987 CrLJ 956.

14. UNLESS HE CAN ACCOUNT FOR HIS POSSESSION The words "unless he can account for his possession" do not mean that any sort of explanation in regard to possession would be acceptable. The explanation offered must be reasonable. The words do not mean that the accused must prove it positively that he had received the property in the manner indicated by him. 61 The accused denied the circumstantial evidence and kept silent. This suggests that the accused had nothing which he had to explain. Held, that in such a case the court cannot assume that the accused had refused to offer an explanation on the ground that he had a right to keep silent. 62 The words "can account for its possession" do not mean that the accused must prove it positively that he received the property in the manner indicated by him. If the explanation given is not inherently improbable or palpably false and the court or the jury trying the case find it to be reasonably true, the adverse presumption shall be deemed to have been rebutted. The meaning of the words "reasonably true" appears to be that the explanation must be sufficient to cast a doubt on the guilt of the accused and in that case unless the prosecution proves beyond reasonable doubt that the accused received the property knowing it to be stolen, the benefit of the doubt shall go to him. 63 This illustration does not mean that the burden of proof is shifted on to the accused, 64 so that he must prove affirmatively that he came by the goods innocently. It is sufficient if he can give an explanation which may raise a doubt in the mind of the court as to the guilt of the accused, which in the opinion of the court may possibly be true. But the possession of stolen property even if accompanied by a failure to give an account as to how such possession was acquired, or by a false account, or by accounts which are contradictory, or by a concealment of the property, would raise not a violent or strong presumption, but a probable presumption merely. 65 It is not the law that if the accused fails to account for his possession of the goods said to be stolen, he must be convicted, if the other proved facts of the case do not predicate

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guilt. The accused is not required to prove his explanation by adducing substantive evidence. In many cases it may be impossible for him to do so, particularly if he alone knows the facts, for he is not bound to give evidence on oath on his own behalf. 66 Where a conviction under Section 411 of the was based on the presumption aforesaid, the court saying that the burden of proving his bona fide s was thrown on the accused and that the oral testimony on behalf of the accused to prove that he had purchased the goods from a certain person was not very reliable, it was held that the conviction was legal. 67 Where a calf belonging to another person was purchased by the accused for an inadequate price, just after a day it was stolen, and the accused is unable to explain as to how he came to be in possession of it, the inference that the accused knew it to be stolen property can be reasonably drawn. 68 Where the accused failed to explain the possession of the stolen articles or how they had the knowledge of other articles having been concealed, it could be presumed that the accused were not merely receivers of the stolen articles from another source but they themselves were thieves. 69 If circumstances indicate that possession was not in natural course of things, the fact that a false explanation is given by accused renders prosecution case stronger. 70 In an offence under Section 411, the possession of the stolen articles by the accused was recent, but the explanation was given by him raising serious doubts about sustainability of the charge. Held that the accused was entitled to acquittal. 71 Where the explanation of the accused is plausible and satisfactory, presumption under Section 114 does not arise. 72 The burden case on the accused by Section 114, illus. (a ) to account satisfactorily for his possession of stolen property is not so onerous as the burden on the prosecution to prove the offence beyond all reasonable doubt in every respect. If the accused offers no explanation, the court may infer guilty knowledge. But, if the explanation leaves the court in doubt, the accused should be held not guilty. 73 The presumption under Section 114, illus. (a ) can be raised only if the person found in possession is unable to account for his possession. 74 When the charge is under Section 411of I.P.C., and the accused denies knowledge of the fact that the goods in his possession were stolen, the question is whether a prudent man ought, under the circumstances of the particular case, to act on the supposition that the accused had that knowledge. 75 If the explanation offered by the accused person is plausible although a court or a jury may not be convinced of its truth, the accused is entitled to an acquittal. The prosecution must show that the explanation is false. 76 It is not for the accused to prove beyond all reasonable doubt that his explanation if the possession is true. It is enough if the explanation is one which appears to the court to be reasonable. 77 61 Pulpil Singh v. State of Allahabad, AIR 1955 All 696. 62 Maloji Rao v. Sankar Saram, 1955 All 443. 63 Emperor v. Jagannath, ILR (1945) All 11; Amar Singh v. M.P., AIR 1982 SC 129, recovery of property shortly after dacoity; Virumal Mulchand v. State of Gujarat, AIR 1974 SC 334; (stolen goods found possession within 2 days); Thulia Kali v. State of T.N. AIR 1973 SC 501; (a person from whose custody things are recovered must be examined). 64 Prem Bahadur v. State of Sikkim, 1978 CrLJ 945. 65 Ina Sheikh v. Queen-Empress, (1885) 11 Cal 160, 163. 66 Keshabdeo Bagat v. Emperor, (1944) 1 Cal 595 : AIR 1945 Cal 93. 67 Emperor v. Hori Lal, (1933) 56 All 250 : AIR 1933 All 893. See also Rajendra Kumar v. State of Rajasthan, (2003) 10 SCC 21 (paras 6-8) : AIR 2003 SC 3196 : 2003 CrLJ 4344. 68 Ram Bharosey v. State, AIR 1952 All 481. Stolen property recovered at the instance of the accused three months after the alleged theft was committed, failed to account to his possession, presumption, Karni Singh v. State of Rajasthan, 1999 CrLJ 1791, at p. 1792 (Raj). 69 Limbaji v. State of Maharashtra, AIR 2002 SC 490 (para V(a)) : (2001) 10 SCC 340 : 2002 CrLJ 590.

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70 Babulal v. State, AIR 1950 All 630; Manipur State v. Laisram Bokul Singh, AIR 1954 Manipur 13. 71 Karnal Singh Uttam Singh v. State of Maharashtra, AIR 1976 SC 1097. 72 Union of India v. Kasambhai Umerbhai Kureshi, 1979 CrLJ 1173(Goa) . 73 Sadasiv Das v. State, 1958 CrLJ 534(Ori) : AIR 1958 Ori 51. 74 Sapa Laz Singh v. State, AIR 1953 All 136; In re : .4meerjan , AIR 1951 Mys 34. 75 In re : Shaik Server, AIR 1957 AP 1006. 76 In re : Dasan Gangaraju, AIR 1950 Mad 778; .4sokan v. State, (1962) 1 Ker 215. 77 Hingora Haji v. Government of Kutch, 1952 Kutch 10; State v. Magha, AIR 1952 Raj 97.

15. EXTENTION OF THE PRINCIPLE--NOT CONFINED TO THEFT ONLY The presumption in this illustration is not confined to the charge of theft, but extends to all charges, however, penal not excluding even murder. Therefore, where a person charged with dacoity is shown to have been in possession of part of the stolen property soon after the dacoity, it may be presumed that he was one of the dacoits or that he received the property knowing it to have been stolen at the dacoity. The principle of illu. (a ) applies not only to cases of ordinary theft but also to cognate offences such as dacoity and robbery. The presumption arising under this illustration extends to all charges, however penal, including murder. 78 No hard and fast rule can be laid down as to what inference should be drawn from a certain circumstances. Where, however, the only evidence against the accused is the recovery of stolen property, though may indicate that the theft and murder must have been committed at the same time, it is not safe to draw the inference that the person in possession of stolen property was the murderer. Suspicion cannot take the place of proof. Unexplained recovery of the articles from the house of the accused may lead to the only inference that he is either a receiver of stolen property or a person who committed theft, but it does not necessarily indicate that the theft and murder took place at one and the same time. 79 The accused was found in possession of property of a murdered person on the day of murder. The accused could not offer any satisfactory explanation as to how he came to be in possession of the property. It was held that the circumstantial evidence was sufficient to hold the accused responsible for the murder. 80 Where ornaments or things of the deceased are found in the possession of a person soon after the murder a presumption of guilt may be permitted. If several months expire in the interval, presumption may not be permitted to be drawn having regard to the circumstances of the case. 81 It was held that where the accused was charged for murder and robbery, the mere fact that a period of one year had lapsed for the recovery would not lead to the presumption that the accused was only a receiver of stolen property and had not committed the murder, particularly when the accused was absconding during that period; presumption can be drawn that he committed both murder and robbery. 82

Ornaments of the deceased were recovered at the instance of the accused. Those ornaments were worn by the deceased when last seen. Inference that the accused must have murdered the deceased cannot be drawn in the absence of any evidence to connect him with murder. Onus lies on the prosecution to prove its case. The accused is liable to be convicted under Section 411 and not under Section 302or Section 394, I.P.C.83 However, Rajasthan High Court held that if theft and murder are inter-connected and the stolen property was recovered from the accused, presumption of murder can be raised. 84

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Where the accused was found to be in possession of the ornaments of the deceased victim, it was held that the presumption under Section 114 could be applied to convict the accused for theft but could not be availed of for conviction of murder in the absence of any linking evidence. 85 The presumption from the possession of articles belonging to the deceased by the accused persons immediately after the murder or robbery should be drawn only where some evidence in present to show that the accused persons were seen with the deceased immediately before his death or that the deceased was last seen alive in the company of the accused persons. 86 Where stolen articles were recovered at the instance of the accused soon after the occurrence of the dacoity, the accused is liable to be convicted not only under Section 412,I.P.C., but also underSection 391,I.P.C. with the aid ofSection 114. 87 When possession of the recovered property with the accused was not established he could not be convicted under Section 395,I.P.C. on the basis of presumption underSection 114(a). 88 Where stolen goods were recovered from the accused three days after dacoity, possible presumption are:-21)   20)  

he took part in the dacoity; received goods knowing them to be stolen, in the dacoity.

Choice of presumption depends upon the facts of each case.

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Where an article taken away by the dacoits was found in the possession of the accused after about two months of the dacoity, it would not be either fair or safe to draw the presumption that he took part in the dacoity. 90 It was held that where a rifle was recovered five months after the dacoity no presumption can be drawn. 91 There is no rule of law which permits from the possession of stolen goods, a presumption of an offence of lurking house trespass by night or house-breaking by night (Section 457of I.P.C.). 92 Where accused was in possession of a large quantity of heroin, it was held that it can be presumed that it was illegally imported for distribution. In the case of possession of cocaine, however, it was held that no presumption of illegal importation can be drawn as it is lawfully purchased in large quantities in the United States. 93 Where one accused was driving the truck loaded with bags of poppy husk, the other two were sitting on the bags placed in the vehicle and another was sitting by the side of the driver who as well as one sitting in the back of the truck, ran away as soon as the police stopped the vehicle. The accused who were merely sitting on the bags in the absence of proof of anything more, could not be presumed to be in possession of the goods. More so when not even a question was asked during examination that they were the persons in possession of poppy husk placed in the vehicle. It is not proper to raise a presumption under Section 114. 94 Presumption arises as soon as it is shown that accused had received the stated amount and such amount was not the legal remuneration. It is not necessary that before presumption arises prosecution must prove that money was paid as a bribe. 95 Before any presumption is drawn the attention of the accused should be drawn to the particular recoveries made from each of them in the dacoity case. 96 Before a presumption could be drawn against an accused, he has to be asked to account for his possession. 97 In a case of accepting illegal gratification under Prevention of Corruption Act , when an accused is found to be in possession of money which he is unable to account for, it can be presumed that he had received illegal gratification and the Illustration (a) of this section can profitably be used. 98 In a case involving terrorists' attack on Parliament of India, a specific cell phone was recovered from one of the accused which was operated with the help of an instrument which also was recovered from his person. The SIM card relating to the cell phone was recovered from his purse. He had made three calls from that set to another terrorist minutes before the attack. There was evidence of this set being freely used by him to contact that terrorist and even others. The other accused had his own set. It was

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held that a presumption could be drawn under this section that the relevant cell phone was all material times being used by the accused. 1 78 Ramasarup v. King-Emperor, (1929) 9 Pat 606; Queen-Empress v. Sami, (1890) 13 Mad 426; Bandhan Sao, (1960) Pat 361; Dhyani Gope v. King-Emperor, (1946) 25 Pat 262 : AIR 1947 Pat 205; Pritam Singh v. State, (1954) Pun 907. 79 Sanwat Khan v. State of Rajasthan, AIR 1956 SC 54; Bhikha Gober v. Emperor, AIR 1943 Bom 458; Jani Shah v. State of A.P., AIR 1958 AP 273; Vali Isa Mahmed v. State, (1963) 1 CrLJ 755(Guj) : AIR 1963 Guj 135; In re : Singaram, AIR 1954 Mad 152; State v. Manga, 1973 CrLJ 1075(Raj) ; In re : Thangaswami, ILR 1963 Mad 476. 80 Sunderlal v. State of M.P., AIR 1954 SC 28; In re : Govinda Reddy, AIR 1958 Mys 150; Kanbi Babu v. State of Saurashtra, AIR 1955 Sau 93. 81 Tulsiram Kanu v. State of Nagpur, AIR 1954 SC 1; Pershadi v. State, AIR 1955 All 443; In re : Madugula Jermaiah, AIR 1957 AP 611; Ravunni Nair v. State of Kerala, AIR 1957 Ker 65 : 1957 CrLJ 751; Kesavan Gopalan v. State, AIR 1954 Tra & Co. 456; State v. Mohanlal, AIR 1958 Raj 338; In re : Kalia Perumal, AIR 1954 Mad 1088; K.N. Vijayan v. State of Tra. & Co., AIR 1953 Tra & Co. 402; King-Emperor v. Sheo Shankar Singh, AIR 1954 Pat 109; State of Orissa v. Bishnu Charan Mudali, 1985 CrLJ 1573; Shivsahai Singh v. State of M.P., 1985 CrLJ 730; Dukhidei v. State of Orissa, AIR 1965 Ori 33; State of Maharashtra v. Baba Joseph, ILR (1971) Bom 577; Baiju v. State of M.P., AIR 1978 SC 522; State of Rajasthan v. Nanu Ram, 1977 Raj LW 241; Prem Bahadur v. State of Sikkim, 1978 CrLJ 945; Gudh Ram v. State of Delhi, 1982 CrLJ 1956(Del) ; Gopalan v. State of Kerala, 1985 CrLJ 3(NOC) ; State of M.P. v. Sarveshwar Prasad, 1977 MPLJ 620; Malsawan Lushai v. Manipur Administration, AIR 1966 Manipur 2; Himangshu Pahri v. State of West Bengal, 1986 CrLJ 622(Cal) (DB); In re : Kaliaperumal, AIR 1954 Mad 1088; Dalip Kumar and Hiralala alias Rana v. State, (1984) 2 Crimes 927 (Del. Admn). 82 Earabhadrappa v. State of Karnataka, 1983 SC 446. 83 Nagappa Dondiba Kalal v. State of Karnataka, AIR 1980 SC 1753; Vijay Kumar v. State, ILR 1978 HP 255; Chenia v. State, AIR 1966 Ori 156. 84 State of Rajasthan v. Prabhu, 1971 Raj LW 311(DB) : AIR 1956 SC 54. 85 Roshan Beevi v. Jt. Secretary of Tamil Nadu, 1984 CrLJ 142(Mad) (FB) . 86 Singaram v. Public Prosecutor, ILR (1954) Mad 602. 87 Lachhman Ram v. State of Orissa, AIR 1985 SC 486; Shivappa v. State of Mysore, AIR 1971 SC 196; Bama Jena v. State of Orissa, AIR 1958 Ori 106; Pritam Singh Sohan Singh v. State, AIR 1954 Punj 201 : ILR (1954) Punj 907; State of Maharashtra v. Baba Joseph, 1971 CrLJ 296(Bom) ; Shobha Param Kachhi v. State of M.P., 1959 CrLJ 476 : AIR 1959 MP 125; Dashirai Riang v. State of Tripura, AIR 1964 Tripura 54. 88 Amarsingh v. State of M.P., AIR 1982 SC 129. 89 Sheonath v. State of Uttar Pradesh, AIR 1970 SC 535. 90 Akmat Ali v. State of Tripura, AIR 1957 Tripura 48. 91 Rajjan v. State, 1980 All LJ 635 : 1971 All CrR 136; (two years after the theft), 1973 BLR 280; (five months later cycle was recovered at a different place from the accused); 1984 CrLR 587(Raj) . 92 Hazara Singh Hakim Singh v. State of Punjab, AIR 1960 Punj 286; Madan v. State, (1957) 7 Raj 296. 93 James Turne v. U.S., 24 Law Ed 2d 610. 94 Avtar Singh v. State of Punjab, AIR 2002 SC 3343 (para 6) : (2002) 7 SCC 419 : 2002 CrLJ 4330. 95 Sailendra Nath Bose v. State of Bihar, AIR 1968 SC 1292. 96 Bijuli v. State of Orissa, 1985 CrLJ 1977(Ori) . 97 Satchidananda Haldar v. State, AIR 1958 Cal 414. 98 State of A.P. v. V. Vasudeva Rao, AIR 2004 SC 960 (para 20) : (2004) 9 SCC 319. 1 State (NCT of Delhi) v. Navjot Sandhu, (2005) CrLJ 3950, 4026 (para 18) : (2005) 11 SCC 600.

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16. TESTIMONY OF ACCOMPLICE [ILLUSTRATION (b)] An accomplice is one who is a guilty associate in crime. Where the witness sustains such a relation to the criminal act that he could be jointly indicted with the accused, he is an accomplice. 2 The primary meaning of the accomplice is any party to the crime charged and some one who aids and abets the commission of crime. 3 It is a rule of prudence and practice which practically amounts to a rule of law that the evidence of an accomplice ought not be acted upon unless it is corroborated as against the particular accused in material respects. 4 Corroborative evidence is evidence which shows or tends to show that the story of the accomplice that the accused committed the crime is true, not merely that the crime has been committed, but that it was committed by the accused. 5 The confession of a co-accused cannot be used to corroborate the evidence of an accomplice.

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The corroboration in the case of an accomplice must point to the identification of the person charged with the particular act with which the direct evidence connects him. 7 The corroboration in material particulars must be such as to connect or identify each of the accused with the offence. 8 The evidence of an accomplice ought to be regarded with suspicion. The degree of suspicion which will attach to it must vary according to the extent and nature of the complicity. 9 There should be such corroboration of the accomplice's evidence as will satisfy a prudent person that the approver can be regarded as a truthful person. The corroboration may even be by circumstantial evidence. The nature of the corroboration will depend on and vary with the circumstances of each case. 10 "...It is not necessary that there should be independent corroboration of every material circumstance. All that is required is that there must be some additional evidence rendering it probable that the story of the accomplice or the complainant is true and that it is reasonably safe to act upon it and the corroboration need not be by direct evidence. It is sufficient if it is merely circumstantial evidence of the connection of the accused with the crime. 11 Where the accomplice is not really a criminal but a spy or informer his evidence does not require any corroboration. 12 The rule in this illustration is to be read along with Section 133 which states "An accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice." Neither rule is to be ignored in the exercise of judicial discretion. In point of law an accomplice is a competent witness against an accused person (vide Section 133). But great caution in weighing his testimony is dictated by prudence and reason. Unless the case is a very exceptional one, an accomplice's evidence should not be accepted as being sufficient. 13 Although Illustration (b) provides that the Court 'may' presume that the evidence of an accomplice is unworthy of credit unless corroborated, 'may' is 'not' must and no decision of the Court can make it must. The Court is not obliged to hold that he is unworthy of credit. It ultimately depends upon the Court's view as to the credibility of evidence tendered by an accomplice. 14 In England it is regarded as the settled course of practice not to convict a prisoner, except under very special circumstances, upon un-corroborated testimony of an accomplice. 15 The corroboration which the common law requires is corroboration in some material particular tending to show that the accused committed the crime charged. It is not enough that the corroboration shows the witness to have told the truth in matters unconnected with the guilt of the accused. 16 One accomplice cannot corroborate another. However, if several accomplices simultaneously and without previous concert give a consistent account of the crime implicating the accused, the court may accept the several statements as corroborating each other, but it must be established that the several statements of accomplices were given independently and without any previous concert. 17 It is now well-settled that the minimum amount of corroboration required to make it safe to act on the testimony of an approver is that the evidence must be corroborated not only as to the corpus delicti but also as to the identity of the accused persons. The corroborative evidence must show or tend to

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show that the story of the approver that the accused committed the crime is true; in other words, the corroborative evidence must be such which confirms not only the evidence that the crime has been committed but also the evidence that the accused committed that crime. 18 However, the sole testimony of the approver can be considered for basing conviction provided he is found to be reliable. In the instant case his evidence was materially inconsistent with other evidence on record. 19 In a case where there are a large number of accused it is essential that the evidence of an accomplice be corroborated by evidence which implicates each of the accused individually. Independent evidence which corroborates the evidence of an accomplice so far as one of several co-accused is concerned is not necessarily evidence which corroborates the statement of the accomplice so far as the other accused are concerned. 20 All that is required is that there must be some additional evidence rendering it probable that the story of the accomplice is true. Corroboration can also be both by direct or circumstantial evidence. 21 The Bombay High Court has laid down the following four principles with regard to the nature and extent of corroboration: 22)   that it is not necessary that there should be independent confirmation of every material particular; 21)   that independent evidence must not only make it safe to believe that the crime was committed, but in some way reasonably connect or tend to connect the accused with it by confirming in some material particular the testimony of the accomplice complainant that the accused committed the crime; 11)   that the corroboration must come from independent sources; and 8)   that the corroboration need not be direct evidence that the accused committed the crime--it is sufficient if it is merely circumstantial evidence of his connection with crime. 22 Where the evidence of an accomplice is not totally unsupported by re-assuring circumstances, the accused could be convicted on the basis of such evidence. 23 Where the evidence of the approver was that he participated in the commission of the offence but not to the same extent as the main accused, his statement could not be said to be of exculpatory nature and on that score his statement could not be excluded from consideration. 24 Where the testimony of the approver was corroborated in respect of only the Accused-1 and not in respect of the Accused-2, conviction of the former was upheld but the later was given benefit of doubt. 25 Rape Cases. -- The Supreme Court of India has held that though a woman who has been raped is not an accomplice, her evidence has been treated by the courts on somewhat similar lines, and the rule which requires corroboration of such evidence save in exceptional circumstances has now hardened into law. 26 A prosecutrix of a sex offence cannot be put on par with an accomplice. She is in fact a victim of crime and Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. Her evidence must be given the same weightage as is attached to that of an injured witness. 27 The view that though corroboration should ordinarily be required in the case of a grown up woman, it is unnecessary in the case of a child of tender years is not correct. The true position is that in every case of this type the rule about the advisability of corroboration should be present to the mind of the Judge; whether corroboration is unnecessary is a question of fact in every case. 28 As a rule of prudence the Court normally looks for some corroboration of her testimony so as to satisfy its conscience that she is telling the truth and that the person accused of rape on her has not been falsely implicated. 29 The above statement of law is substantially altered by Section 114-A of this Act where in certain circumstances, the Court should presume that a woman did not consent to rape where she states in her evidence that she did not consent. In other words the court has to prima facie proceed that her evidence is true. In a case of rape, absence of injuries or the accused on the prosecutrix per se is not sufficient to indicate her consent. 30 Where an alleged rapist gave evasive replies and gave no explanation about the injury on his penis and human blood on his pant, adverse inference could be drawn against him. 31 See also commentary under Section 133.

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2 Ramaswami v. Emperor, (1903) 27 Mad 271, 277. 3 Sheshanna Bhumanna Yadav v. State of Maharashtra, AIR 1970 SC 1330. 4 Emperor v. Mataprasad, (1942) 45 Bom LR 64; State v. Ram Singh, ILR (1954) Cut 309; Rampal Pithwa Rahidas v. State of Maharashtra, 1994 CrLJ 2320 (para 9) (SC); K. Hashim v. State of T.N., AIR 2005 SC 128 (para 22) : (2005) 1 SCC 237 : 2005 CrLJ 143; Sitaram Sao v. State of Jharkhand, (2007) 12 SCC 630, 639-40 (para 21) : AIR 2008 SC 391; Francis Stanly v. Intelligence Officer, Narcotic Control Bureau, Thiruvananthapuram, AIR 2007 SC 794, 796 (para 10) : (2006) 13 SCC 210; Santosh Kumar v. State of H.P., 2008 CrLJ 1988, 1990-91 (para 11) (HP). 5 Noor Ahmed v. Emperor, (1933) 62 Cal 527. 6 Provincial Government v. Raghuram, ILR (1942) Nag 749. 7 Emperor v. Kalwa, (1926) 48 All 409 : AIR 1926 All 377. 8 Rebati Mohan Chakravarthy v. Emperor, (1928) 56 Cal 150. 9 Srinivas Mall Bairoliya v. Emperor, (1947) 49 Bom LR 688 PC. See also Renuka Bai v. State of Maharashtra, (2006) 7 SCC 442, 450-51 (para 31) : AIR 2006 SC 3056. 10 Vemireddy Satyanarayan Reddy v. State of Hyderabad, AIR 1956 SC 379; Kanbi Karsan Jadav v. State of Gujarat, AIR 1966 SC 821; Haroom Haji Abdulla v. State of Maharashtra, AIR 1968 SC 832. 11 Raman Lal Mohan Lal Pandya v. State of Bombay, AIR 1960 SC 961. See also Sheshanna Bhumnna Yadav v. State of Maharashtra, AIR 1970 SC 1330, 1332 (paras 12 & 13), relying on Lachi Ram v. State of Punjab, AIR 1967 SC 792. 12 Queen-Empress v. Bastin, (1897) PJLB 365, contra Mi The U v. Queen-Empress, (1881) SJLB 146; complainant or informer Minister is not accomplice, C.R. Mehta v. State of Maharashtra, 1993 CrLJ 2863 (paras 13 and 30) (Bom). 13 In re : B.K. Rajagopal, ILR (1944) Mad 308(FB) . See also S.C. Bahri v. State of Bihar, 1994 CrLJ 3271 (para 43) (SC); K. Hashim v. State of T.N., AIR 2005 SC 128 (para 26) : (2005) 1 SCC 37 : 2005 CrLJ 143. 14 K. Hashim v. State of T.N., AIR 2005 SC 128 (para 27) : (2005) 1 SCC 237 : 2005 CrLJ 143. 15 Reg v. Gallagher, (1875) 13 Cox 61. 16 Rex v. Baskerville, (1916) 2 KB 658; See comment on Section 133,infra. 17 Hussain Umar v. Dalipsinghji, AIR 1970 SC 45. 18 Ram Singh v. Crown, ILR (1950) Punj 209; Bhima Shaw v. State, ILR (1956) Cut 195. 19 State of Mahatrashtra v. Sangita Gulab Chaure, 2008 CrLJ 330(NOC) (Bom) : 2008 (1) AIR Bom R 468. 20 Kedar v. Rex, ILR (1949) All 152. 21 A. Devendran v. State of T.N., (1997) 11 SCC 720. 22 L.S. Raju v. State of Mysore, (1953) 55 Bom LR 191 : AIR 1953 Bom 297. 23 State of Tamil Nadu v. Suresh, AIR 1998 SC 1044 : 1998 CrLJ 1416 (para 22) (SC), reversing Cri A Nos. 782-83 of 1989, decided on 8-2-1991 (Mad). 24 A. Devendran v. State of T.N., (1997) 11 SCC 720. 25 Gajalaxmi v. State of T.N., 1997 SCC 410(Cri) . 26 Sheikh Zakir v. State of Bihar, AIR 1983 SC 911. See also Babulal v. The State of Madhya Pradesh, 1994 CrLJ NOC 283(MP) . 27 Sri Narayan Saha v. State of Tripura, (2004) 7 SCC 775, 777 (para 6); See also Aman Kumar v. Sate of Haryana, (2004) 4 SCC 379, 385 (para 5) : AIR 2004 SC 1497 : 2004 CrLJ 1393; S. Ramakrishna v. State, AIR 2009 SC 885, 886-87 (para 10). 28 Rameshwar v. State of Rajasthan, 1952 SCR 377 : AIR 1952 SC 54; Bhonri v. State, (1952) 2 Raj 817.

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29 Gurcharan Singh v. State of Haryana, AIR 1972 SC 2661. But corroboration can be waived in the light of apparent circumstances. Krishan Lal v. State of Haryana, AIR 1980 SC 1252. 30 State of U.P. v. Padam Singh, 1996 AIHC 169 (para 12) (All). 31 J.V. Wagh v. State of Maharashtra, 1996 CrLJ 803 (para 13) (Bom).

17. BILL OF EXCHANGE [ILLUSTRATION (c)] The presumption on which this illustration is founded is in accordance with the maxim omnia praesumuntur rite esse acta , i.e., all things are presumed to be done in due form. The principle of the maxim "has, in many instances, been recognised in support of the solemn acts of even private persons.... Thus, if an act can only be lawful after the performance of some prior act, due performance of that prior act will be presumed. Again, although in the case of contracts not under seal a consideration must in general be averred and proved, yet bills of exchange and promissory notes enjoy the privilege of being presumed, prima facie, to be founded on a valuable consideration. The law raises this presumption in favour of these instruments, partly because it is important to preserve their negotiability intact, and partly because the existence of a valid consideration may reasonably be inferred from the solemnity of the instruments themselves, and the deliberate mode in which they were executed. (T AYLOR 12th Edn., S. 148, p. 139). Where the fact that the cheque was issued by the party and presented in the bank but was dishonoured was proved, the presumption would be that the cheque was issued for consideration. An effect of the presumption is that the plaintiff has not to produce account books to substantiate consideration. The burden is upon the other party. 33

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The explanation to this illustration speaks of "a man of business", which in its well-known popular sense must mean a man habitually engaged in mercantile transactions or trade. 34 Sections 118 and 119 of the Negotiable Instruments Act lay down certain other presumptions. The Lahore High Court has held that Sections 118 of the Negotiable Instruments Act replaces the explanation attached to this illustration and therefore the rule laid down in this illustration is modified bySection 118. What was permissible in the Evidence Act was converted into a statutory obligation in the Negotiable Instruments Act . While illustration (c ) is confined to the acceptance or endorsement of a bill of exchange, Sections 118 of the Negotiable Instruments Act applies to the making or drawing of it also.35 The Madras High Court has held that the difference between this section and Sections 118 of the Negotiable Instruments Act consists only in this, that under the first, the court has a discretion to make the presumption or not, whereas, under the second, the Court is bound to start with the presumption; but once the presumption is made there is no difference between the cases; in the manner of displacing the presumption or disproving the "presumed" fact. Any presumption as to quantum of consideration as distinguished from the mere existence of consideration, has accordingly to be drawn, not by virtue of Sections 118 of the Negotiable Instruments Act or even under this section, but only from the recitals, if any, that the instrument may contain. As to such recitals, it has long been established that that beingprima facie evidence against the parties to the instruments, they may operate to shift on the party pleading the contrary, the burden of rebutting the inference raised by them. But the weight due to recitals may vary according to circumstances and, in particular circumstances, the burden of rebutting them may become very light, especially when the court is not satisfied that the transaction was honest and bona fide . 36 Sections 118 of the Negotiable Instruments Act enacts a special rule of evidence which operates between parties to the instrument or persons claiming under them in a suit or proceeding relating to the bill of exchange and does not affect the rule contained in this section in cases not falling within Sections 118 of the Negotiable Instruments Act .37 Where the drawer issued an undated cheque as security for loan transaction, the issuance of the cheque was admitted and there was no dispute regarding signature, amount and the name shown in

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the cheque, it could be presumed that the cheque was supported by consideration which presumption could not be rebutted merely because there were some transactions between the drawer and the drawee of the cheque. 38 It can be presumed that insertion of date in an undated cheque by the payee holder of the cheque is with the implied consent of the drawer of the cheque. 39 Presumption of due execution of a pronote by an illiterate woman could be drawn if one respectable witness proved the same, though another witness denied it when he was not a reliable witness. 40 Presumption under Section 114, illus. (c ) can be raised in case presumption under Sections 118(a) of the Negotiable Instruments Act is not available.41 Where the plaintiff withholds relevant evidence presumption under Sections 118 of the Negotiable Instruments Act is rebutted.42 If the defendant shows that the cash consideration originally pleaded for the hundi did not pass, he must be taken to have discharged the onus which lay upon him in view of the presumption, that is attached to the hundi as a Negotiable Instrument. The onus then shifts on the plaintiff to prove that there was consideration. 43 32 Vasanti Babli Borkar v. Kishore K. Shah, AIR 2007 (NOC) 744(Bom) : 2007 (1) AIR Bom R 831. 33 Gulab Chand v. Satya Vrat, AIR 1983 SC 54. 34 Ningawa v. Bharmappa, (1897) 23 Bom 63, 66. 35 Bannumal v. Munshi Ram, (1935) 17 Lah 107, 113 : AIR 1935 Lah 599. 36 Narasamma v. Veeraju, (1934) 58 Mad 841, 850 : AIR 1935 Mad 796; see also Tirumala Iyengar v. Subbaraja, 1982 Mad 219; Narayana Rao v. Ramachandra, 1959 AP 376; Radheshyam v. Kashinath, AIR 1957 MB 82. 37 Official Receiver v. Abdul Shakoor, AIR 1965 SC 920; Ananda-manjari v. Tripura Oondari, 14 IA 101(PC) : ILR 14 Cal 740. 38 Bhaskaran Chandrasekharan v. V. Radhakrishnan, 1998 CrLJ 3228, at page 3230 (Ker). 39 Bhaskaran Chandrasekhran v. V. Radhakrishnan, 1998 CrLJ 3228, at p. 3231 (Ker). 40 Gutta Bhadrayya v. Kalagara Kanakamma, AIR 1925 PC 47. 41 Shrikishan v. Bhanwarlal, AIR 1974 Raj 96. 42 Kundanlal Ralloram v. Custodian of Evacuee Property, Bombay, AIR 1961 SC 1316. 43 Krishna and Co. v. Firm Bhagar Ram Giridhari Lal, 1969 Punj 552.

18. CONTINUANCE [ILLUSTRATION (d)] This illustration is founded on the presumption which exists in favour of continuance or immutability. If a thing or a state of things is shown to exist, an inference of its continuity within a reasonably proximate time both forwards and backwards may sometimes be drawn. The rule that the presumption of continuance may operate retrospectively also had been recognised in India. How far the presumption may be drawn backwards and forwards depends upon the nature of the thing and surrounding circumstances. 44 Sections 107 and 109 deal with particular applications of the principle of which this illustration is the general expression. The ordinary legal presumption is that things remain in their original state. 45 If a person is shown at one time to be a member of a joint Hindu Family, it will be held under this illustration that he never separated at all unless the contrary is proved. Presumption should not be raised against but in favour of the existing state of things. 46 A State of affairs which is shown to exist at one time in the past is presumed to continue as it is. 47 Entries in Khatauni as to occupation of a particular person raise a presumption as to continuity of possession of that person and the presumption is not naturalised by payment of rent by some one else. 48 A momentary delivery of possession, even of real possession

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and not of symbolic possession, not followed up by subsequent possession and enjoyment, will not raise, in the case of cultivated land, the presumption that it is continued for years. 49 There is no scope for any presumption under Section 114(d) to hold that the value ruling at the time of previous assessment remained unchanged even during the time of revaluation, when the assessee himself had admitted that the value had increased. 50 44 Ambika Prasad v. Ram Ekbal Rai, AIR 1966 SC 605; Kesava Kurup v. Thomas Idicula, AIR 1969 Ker 21; Ganapuram Bramaramba v. Anneparthy Anantharamaiah, AIR 2004 AP 315, 316 (para 8) : 2004 (5) Andh LT 597 : 2004 (2) Andh LD 718 : 2004 (4) Cur CC 129 : 2004 (4) 1 CC 47. 45 Jariut-ool-Butool v. Hosseinee Begum, (1867) 11 MIA 194, 209. 46 Secretary of State v. Jyoti Prasad, AIR 1926 PC 41. 47 Jaiprakash v. Lilabai, AIR 1963 Bom 100. 48 Purni Devi v. Shibu Mahton, AIR 1971 Pat 249. 49 Uthamaram Nathusam Sait v. Hude Gopalkrishnayya, AIR 1957 Mad 463. 50 Corporation of Calcutta v. Nani Gopal, AIR 1956 Cal 269.

19. JUDICIAL AND OFFICIAL ACT S [ILLUSTRATION (e)] The rule embodied in this illustration flows from the maxim omnia praesumtuntur rite et solemniter esse acta i.e., all act s are resumed to have been rightly and regularly done. "The true principle intended to be conveyed by the rule, 'omina praesumuntur rite et solemniter esse acta,' ... seems to be, that there is a general disposition in the court of justice to uphold official, judicial, and other act s, rather than to render them inoperative, and with this view, where there is general evidence of acts having been legally and regularly done, to dispense with the proof of circumstances, strictly speaking essential to the validity of those act s, and by which they were probably accompanied in most instances, although in other the assumption rests solely on grounds of public policy." 51 The presumption is founded in the principle that an officer entrusted with judicial or official duty must be presumed to have discharged his duties in a proper and definite manner. 52 This illustration only means that, if an official act is proved to have been done, it will be presumed to have been regularly done, but it does not raise any presumption that an act was done for which there is no evidence and proof. 53 In food adulteration case where sample of food was taken for analysis and evidence of the Food Inspector showed that respective Rule was complied with and bottles in which sample of curd was taken were dry and clean and that sampling was done in accordance with law, in absence of any evidence to the contrary, it would be presumed that the official act of taking sample was regularly performed. 54 The presumption under Section 114(e) is that of the regularity of the official act s whether judicial or executive, and not that of the acts themselves being done. The presumption is rebuttable. 55 Where the evidence of the witnesses shows that the Sub-Registrar had read out and explained the contents of the document to the parties at the time of its registration, in absence of any evidence in rebuttal, the act s of the Sub-Registrar of reading and explaining the contents of the document to the parties in the course of registering, would be presumed to be true. 56 It is a settled law that in interpreting the Constitution neither motives nor bad faith nor abuse of power be presumed unless in an individual case it is assailed and arises for consideration on that premise. On the contrary, the presumption is that official acts have been regularly performed. 57 Illus. (e ) to Section 114 permits presumption to be drawn in matters of procedure. It does not permit a presumption to be drawn where the question does not relate to the manner of doing an official act but goes to the root of the validity of that order. 58 In a case regarding land acquisition, non-impleadment of the Land Acquisition Officer, will give rise to the presumption under Section 114(e). 59 The presumption that official act s must be presumed to have done in accordance with rules and laws is not a conclusive one and is not available where there is a clear evidence to the contrary. 60 The normal

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presumption that all official acts are properly performed must be always recognised and given effect to in the absence of evidence to the contrary. 61 There would be a presumption of regularity in respect of official and judicial act s and it would be for the party who challenges that regularity to plead and prove his case. In this case it was contended on behalf of an advocate who was found guilty of professional misconduct that the Bar Council was not consulted before referring the matter to the District Judge for enquiry. It was held that the fact that in the order of reference to the District Judge there is no explicit statement that the Bar Council had previously been consulted is not decisive on the point. 62 Courts will normally presume that a discretion vested in a Government functionary has been exercised fairly, and this presumption is stronger still when the discretion is vested in the highest executive authority of all, the Governor of the State. 63 When an order is passed by a high ranking authority appointed by the Central Govt., the law presumes that it would act bona fide. Misuse of power in a situation of this nature should not be readily inferred. 64 Illustration (e ) means that act has been done with due care and attention.

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Whether a presumption should or should not be made must depend upon the particular circumstances of each case. 66 Where a statement appears in the judgement of a court that a particular thing happened or did not happen before it, it ought not ordinarily to be permitted to be challenged by a party unless both the parties to the litigation agree that the statement is wrong, or the court itself admits that the statement is erroneous. 67 A presumption arises under this section as to legality and correctness of a court's proceedings. 68 The very fact that a Magistrate convicted and sentenced the accused raises a presumption that the accused was not a minor at the time he was convicted. It is for the accused to rebut that very strong presumption. 69 Every judicial tribunal set up by a statute must be deemed to act properly and within powers conferred on it by the Legislature. 70 Presumption that the court performed its duty arises and onus is on the party alleging non-compliance by the court within Order XXXII, Rule 7 of the C.P.C., to prove that no leave was obtained for compromise. 71 There is a presumption that an order made by a court of law was made after considering all the material on record and after hearing both sides. 72 There is a presumption that the evidence was read over to the witness, interpreted and admitted by the witness to be correct in view of the endorsement certified by the court at the bottom of the deposition. 73 When it is stated in the order sheet that a certain order was read out and explained to persons proceeded against, it should be assumed that it was read out and explained. 74 As there is a presumption in law that court proceedings have been regularly conducted and it must be presumed that oath had been duly administered to the witness when he appeared in the witness box for giving evidence. 75 When the records show that notices have been sent it must ordinarily be presumed that statutory requirements have been complied with and statutory notices given. 76 When the entry in the order sheet shows that notice has been served, it is prima facie evidence of the fact that notice has been served. 77 Where the Magistrate did not record in the order sheet the ascertainment of intactness of seal and mark and non-tampering of signature of the accused of the sample received from Local Health Authority before sending it to the Director of Central Food Laboratory which was not challenged before the Magistrate, presumption of regular performance of judicial act could be drawn. 78 If there is difference between the facts recorded in the order sheets and the statement of any party to a proceeding, where the facts recorded in the order sheet must be held to represent the correct state of affairs. 79 But in the undermentioned cases it was held that entries in suit registers showing that notices were issued do not mean that the notices were served. Such entries by themselves cannot prove service. The mere entry in the order sheet is no proof that the notice had been served. 81 When there is no mention of a contention in the judgements of courts the presumption is that contention was not put forth and urged. 82

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Presumption of regularity of act s extends to testamentary documents. 83 A presumption by reference to Section 114(e) shall arise to the effect that the events contained in the endorsement of registration of a document (here a Will), were regularly and duly performed and were correctly recorded. 84 The statement of an arbitrator as to amount of fees he received must be presumed to be correct.

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The presumption under Section 114(e) is a rebuttable one and once it is rebutted by the party challenging the settlement, the onus would be on the successful party to support the settlement.

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Where the officer concerned did not depose as to the compliance of the mandatory procedure under S. 50 of the N.D. & P.S. Act to inform the accused of his right to be searched in the presence of a Gazetted Officer or a Magistrate, the Court could presume that the possession of illicit articles by the accused was not established. 87 Where some of the teachers, appointed under Intermediate Education Act, did not possess the requisite experience for promotion, their appointment could not be presumed to have been made by promotion. However their appointment, being governed by statutory regulation, is an official act and presumption of regularity attaches to it. 88 Where in an advertisement for the selection on a post, it was stated that the requisite qualifications were mentioned in the application form but the application form was not filed on the record, the Court presumed that the qualifications set out in the advertisement coupled with the application form, were in conformity with the relevant rules and ordinances. 1 Where the record of the selection committee showed that the selection was based on merit but the same was challenge after eight years, the presumption of the genuineness of the official act s would apply. 2 Where the Additional Advocate General filed the special appeals on behalf of the State Govt., it could be presumed that he was duly authorised to file the said appeals. 3 Burden of proving that formalities required by law were not complied with at the time of giving symbolic possession to plaintiff, is on the defendant and not on plaintiff, as there was presumption in favour of plaintiff. 4 Where a copy of sale certificate is affixed in a conspicuous place of one plot, there can be no presumption that affixture as required by law was made in respect of all plots if all of them are not in one place. 5 Where there is a defect in the proclamation of sale, the judgment debtor cannot be presumed to have information about the defective proclamation of sale. 6 The order of detention passed by the Deputy Commissioner is without jurisdiction. Doctrine of presumption of regularity cannot be invoked to presume that he acted in his capacity as District Magistrate. 7 It may be presumed that the official act of forwarding of the report of the public analyst with necessary intimation has been performed regularly. 8 When property is attached in execution of a decree, it can be presumed that the property was attached by the administration in accordance with the law. 9 Attachment must be presumed to be valid in the absence of proof to the contrary. Irregularities in attachment does not render it invalid. 10 Where a court has sent a copy of the order of attachment of agricultural lands to the collector's office for its publication, the Collector is presumed to have carried out his official duty of publishing the same as desired by the court. 11 When an assessee appears on the adjourned date of hearing without notice, inference is that the assessee did appear on the previous date of hearing and thereby acquired knowledge of the next date of hearing. 12 When the original suit agreement was lost from the custody of the court, and when the plea was not raised before the trial court that it was not properly stamped, it was held that it has to be presumed that the agreement was properly stamped and Section 35 of the Stamp Act has no application. 13 Presumption as to the validity of a compromise decree is that at the time when it was passed the court was satisfied that a valid compromise was arrived at there in between the parties thereto. 14 51 B EST 12th Edn. S. 353, p. 312; Narendra Lal Khan v. Jogi Hari, (1905) 32 Cal 1107, 1121; Imperator v. Leslie Gwilt, (1944) 47 Bom LR 431 : ILR (1945) Bom 681; Narayan v. State of Maharashtra, AIR 1977 SC 183, presumption as to public purpose in acquisition; Kashmiri Lal v. State of Punjab, AIR 1984 P&H 87; (notification is different from order. The latter does not amount to public knowledge); Achchey Lal v. V.C. Gorakhpur University, AIR 1985 All 1(DB) ; (admissions beyond prescribed limit can be questioned); Narayan v. Gowbai, ILR 37 Bom 415. See also M.D., Army Welfare Housing Organisation v. Sumangal Services (P) Ltd., (2004) 9 SCC 619, 664 (para 118) : AIR 2004 SC 1344. 52 R.M. Sundaram v. Sri Karyarohanasamy and Neeladhakshiamman Temple, rep. by its Executive Officer, Nagapattianam, (2009) 1 MLJ 611, 620-21 (para 40). 53 Maharaja Pratap Singh v. Thakur Mammohan Dey, AIR 1966 SC 1931; M.B. State v. Beharamji D. & Co., AIR 1958 MP 71; Krishna Murthy v. Abdul Subhan, AIR 1965 Mys 128; State of Rajasthan v. Shamsher Singh, AIR 1985 SC 1083; (opinion expressed by a board under MISA); Sone Lal v. State of U.P., AIR 1978 SC 1142; (Regular entries in public documents, allegation of fabrication and delay in lodging FIR); Shankaralingappa v. Nanje Gowda, AIR 1981 Kant 78; (entry in record of rights); Laxmibai v. Thoerppa, AIR 1982 Kant 248; (entries in death register) State of Bombay v. Aziz Khan, AIR 1956 Bom 680; Zeenat Tej v. Principal of Wales Medical College, Patna, AIR 1971 Pat 43;

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Jai Dutt v. State of U.P., AIR 1979 SC 1303; Purushotham v. Emperor, 1946 Bom 492; State of Maharashtra v. Narayan Ramchandra Nagpure, (1977) 1 Bom 927; Shanker v. Syndicate Bank, (1979) 1 Kant 1326; Municipal Council, Rajamundry v. Sundhari Rawganayakalu, AIR 1955 And Pra 107; Raghunath Pani v. Radha Kanto Deb, 1961 Ori 73; Uli Bewa v. Mana Bewa, ILR (1963) Cut 451; Saraswath Films v. A.V. Mithra Devi, AIR 2007 (NOC) 1063(Ker) . 54 M.K. Babu v. Food Inspector, Kakkanadu, 2003 CrLJ 3812, 3815 (para 5&6) : 2003 (3) Cur Cr R 1852 : 2003 (2) FAC 1 : ILR (Ker) 2003 (2) Ker 374 : 2003 (7) Ind LD 305 : 2003 (1) Ker LJ 761 : 2003 (2) Ker LT 90. 55 Niharenddu Dutta v. A.E. Porter, AIR 1945 Cal 107. See also State of Haryana v. Hari Ram Yadav, AIR 1994 SC 1262 (paras 10 and 11); Ranganathan v. State, 1996 CrLJ 2040 (paras 41 and 42) (Mad). Nothing on record to rebut presumption, Jameela Begum v. State of U.P., AIR 2006 All 144, 146 (para 18). 56 Ranganayakamma v. K.S. Prakash, AIR 2005 Kant 426, 441 (para 77) : 2005 AIHC 4410, 4423 (Kant). 57 S.R. Bommai v. Union of India, AIR 1994 SC 1918 (para 147). 58 State v. Bhanwar Lal, (1973) CrLJ 1749(Raj) ; Swadeshi Cotton Mills Co. Ltd. v. State Industrial Tribunal, U.P., 1956 All 689. 59 T.N. Housing Board v. A. Viswam, AIR 1996 SC 3377 (paras 11 and 12), reversing SA No. 1526 of 1988, Dt. 7-41994 (Mad). 60 Rama Mohan Das v. Basudav Dass, AIR 1950 Ori 28. 61 Ajit Singh v. Punjab, AIR 1967 SC 856; (order of appointment of an officer); Mohamed Abdul v. State of Mysore, AIR 1966 Mys 61; Public Prosecutor v. Viswanatha Chetty, AIR 1960 AP 96; Machiraju Mahalakshmamma v. Suryanarayana, AIR 1955 Andhra 192; Sagara Singh v. Chajju Ram, AIR 1964 J&K 88; Ganga Ram v. Phulwati, 1970 All 446(FB) ; Ghulam Ahmad v. Government of J&K, 1960 J&K 136; Madhusudan v. Assistant Registrar of Cooperative Societies, 1978 CrLJ 570(Cal) ; Ram Das v. Bihar, 1966 Ori 150; Bishanlal v. The I.T. Officer Ambala, AIR 1957 Punj 26; Harpal Singh v. Union Territory, Chandigarh, AIR 1978 Punj 68; Syed Anwar Ahmad v. Asst. Custodian General Evaluee Property, U.P., (1972) 2 All 641; Saddruddin Khushal v. Asst. Collector Custom, 1979 CrLJ 1265(Goa) ; Jai Shankar Prasad v. State of Bihar, AIR 1993 Pat 22 (paras 9 and 10A). 62 P.J. Ratnam v. D. Kani-karam, AIR 1964 SC 244. 63 Ravindra Kumar v. State of U.P., AIR 1961 All 361. 64 Municipal Corporation of Delhi v. Qimat Rai Gupta, (2007) 7 SCC 309, 316 (para 17). 65 Ram Krishana v. State of MP, ILR 1970 MP 510. 66 Harkishan Das v. Crown, (1943) 25 Lah 245(FB) . 67 Bank of Bihar v. Mahabir Lal, AIR 1964 SC 377; State of Orissa Oil Industries Ltd., AIR 1982 Ori 245; State of Maharashtra v. Ramdas Shrinivas Nayak, AIR 1982 SC 1249; Union of India v. T.R. Varma, AIR 1957 SC 882; Veeraswamy Chetty v. Varadiah Chetty, AIR 1957 AP 493; Deonandan Ojha v. Ramdeyal Ojha, AIR 1971 Pat 102. 68 Raghubir Singh v. Rajeshwari Devi, (1933) 9 Luck 90 : AIR 1933 Luck 466; Sheikh Ala Baksh v. Thakur Durga Baksh Singh, (1933) 9 Luch 162; Laikunnissah v. Hari Pd., AIR 1980 All 63; (Court auction sale, presumption of validity) Rama Krishna v. Lakshminarayana, AIR 1984 Kant 45; (presumption that all official acts are in accordance with proper order); Rudnap Export-Import v. Eastern Associates Ltd., AIR 1984 Del 20, (presumption of validity of documents authenticated by a foreign judge); Sarangdhar Sinha v. Parvati Kuer, AIR 1968 Pat 370; Thounaojam Munal Singh v. Karam Iboyaima Singh, 1971 CrLJ 62 : 1971 Mani 1; Mushiat Ullah v. Abdul Wahab, AIR 1972 All 539; Electric Power Devices Co. v. Sr. Divnl. Manager, LIC of India, 2001 AIHC 2975 (para 9) (Kant). 69 Shankar Narayan Mohite v. State of Bombay, AIR 1956 Bom 582. 70 Mangaldas N. Verma v. Comm. of I.T. and Excise Prohits Tax, AIR 1954 Bom 184(FB) ; Ramanajamma v. Nagamma, AIR 1968 AP 223. 71 Lalji Sah v. Sat Narain Bhagat, AIR 1962 Pat 182; Thakur Prasad Singh v. Raghubar Prasad Singh, AIR 1952 Pat 469. 72 Newad Ram v. Kishan, AIR 1952 Raj 149. 73 Mangilal v. State of A.P., 1989 CrLJ 2265(AP) . 74 Yasu Deoojha v. U.P. State, AIR 1958 all 578.

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75 Jogendra Singh v. State of Bihar, AIR 1968 Pat 74. 76 Dhanapati Devi v. Corpn. of Calcutta, AIR 1952 Cal 467 : 1952 CrLJ 975; Dodde Gowda Kapani v. State of Mysore, AIR 1964 Mys 55; Mushiat Ullah v. Adbul Hussain Khan, AIR 1972 All 539; Natabar Chaudhary v. Shankar Mahton, AIR 1957 Pat 487; Aravindaksha Menon v. Lakshmi Narayanan , ILR (1956) Tra & Co. 1130. 77 Harakali Bose v. Janaki Devi Choudharani, AIR 1956 Pat 161; Sachitanandan Prasad v. Janak Prasad, AIR 1958 Pat 5771; Aswini Kumar v. Karmat Ali, AIR 1948 Cal 165. 78 Kailash Chand Gaggar v. State of Assam, 1993 CrLJ 2632 (para 5) (Gau), relying on Kesvan v. Food Inspector, 1988 CrLJ 898(FB) (Ker). 79 State v. Basdeo Bawri, (1961) 1 CrLJ 621(Assam) ; Krishna Pillai v. Paru Kutty Ammal, AIR 1952 Mad 33; Nimar Cotton Press v. Sale Tax Officer, AIR 1956 Nag 27. 80 Karali Prasad v. Probodh Chandra, AIR 1950 Cal 513; Mohiuddin v. Pirthi Chandlal, AIR 1915 Cal 444. 81 Mohiuddin v. Pirthichand Lal, AIR 1915 Cal 444. 82 Dhanji Ram Sharma v. Union of India, AIR 1961 Punj 178. 83 Satipada Chatterjee v. Annikali Debya, (1955) 1 Cal 94. 84 Bhagat Ram v. Suresh, AIR 2004 SC 436 (para 24). 85 Shambhu Dayal v. Pt. Basdeo Sahai, 1970 All 525(FB) . 86 Krupasindu Misra v. Gobinda Chandra Misra, AIR 1980 Ori 199. 87 Saiyad Mohd. Saiyad Umar v. State of Gujarat, 1995 CrLJ 2662 (paras 6 and 7) (SC), following State of Punjab v. Balbir Singh, (1994) 3 SCC 299 : 1994 AIR SCW 1802. 88 Naseem Bano v. State of U.P., AIR 1993 SC 2592 (para 12), reversing 1985 UPL BEC 84. 1 S .K. Kushwaha v. D.K. Joshi, (2002) 4 SCC 172 (para 5). 2 Kirpa Ram Mathur v. State of U.P., AIR 2001 SC 3071 (paras 7 and 11). 3 Regional Transport Authority, Jodhpur v. Sita Ram, AIR 1993 Raj 76 (paras 5, 6 and 7). 4 Ahad Najar v. Ram Chand, AIR 1965 J&K 31. 5 Puttamma Shedthi v. Sheena Shetty, AIR 1952 Mad 849. 6 Rajagopal Naidu v. Muthulakshmi Ammal, AIR 1969 Mad 5. 7 Dhanpatrai Periwal v. State of West Bengal, AIR 1954 Cal 518. 8 Ratanlal Agarwala, Jorhat v. State of Assam (FB), 1993 CrLJ 2747 (para 24) (Gau), overruling State of Assam v. Jagat Singh, (1992) 1 Gau LR 62. 9 Tika Ram v. State of Allahabad, AIR 1960 All 453; Padmavathi Ammal v. Maruthachalam Pillai, (1966) 1 Mad 600; Ramesan v. Kunhipalu, AIR 1977 Ker 119. 10 Ratha Harijan v. Narasingha Rana, AIR 1961 Ori 22. 11 Krishna Mukhlal v. Sha Bhagwan, AIR 1974 Guj 1. 12 (1978) 1 All 225. 13 Harijiwan Sahu v. Jai Ram Sahu, AIR 1989 Pat 96. 14 Nandalal Mahton v. Haubat Mahton, AIR 1965 Pat 345.

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Ratanlal & Dhirajlal: Law of Evidence, Updated 23rd Edition/THE INDIAN EVIDENCE ACT (ACT 1 OF 1872)/PART III PRODUCTION AND EFFECT OF EVIDENCE/CHAPTER VII THE BURDEN OF PROOF/S. 114. 2 of 4

20. ISSUE OF WARRANT--PRESUMPTION AS TO B EAUMONT . C.J. said "It is, I think, desirable that a warrant issued under the terms of a particular statute should show on its face that the conditions precedent required by the statute have been complied with, but it is not in my view essential that the warrant should so show. There is a presumption under Section 114, illus. (e ), Evidence Act, which enables us to presume that the officer issuing the warrant has performed his duty correctly, and until that presumption is displaced, it is not, in my opinion, necessary for the officer to give any evidence in the matter." 15 Where a warrant of arrest is on the face of it not defective the court would be entitled to draw a presumption in accordance with the provisions of Section 114(e). 16 15 S .K. Kushwaha v. D.K. Joshi, (2002) 4 SCC 172 (para 5). 16 Daitari Das v. State of Orissa, AIR 1956 Orissa 97. See also Ranga Lal Sen v. Emperor, AIR 1936 Cal 788.

21. PRESUMPTION OF GOVERNMENT AND OFFICIAL ACT S When law requires an act to be done in a particular manner and there is no evidence to the contrary, there is presumption that they have been performed in the manner provided in law. 17 The factual recitals or observations made in a judgment or order are taken to be correct unless rebutted. 18 The matters of judicial record are unquestionable inasmuch as that they are not open to doubt. Hence is a case of divorce decree, the allegation by the wife that her signature on the petition was obtained per force, could not be entertained 19 but where it was found that the date hearing objection in the order sheet was a gazetted holiday, it was inferred that for preparing the manipulated order sheet some date was picked up at ran down which unfortunately turned out to be a gazetted holiday. Thereafter taking a false plea that objections were heard on a holiday and swearing in a false affidavit also by the Spl. Land Acquisition Officer do not raise a presumption that official act s are done in a regular manner 20 and ex parte decree cannot be presumed to be passed on merits. 21 In view of the Section 114, illustration (e ), the act of the Appellate Authority rejecting the application for condonation of delay could be presumed to have been regularly performed, if nothing contrary was established. 22 The presumption that all judicial and official act s would be regularly performed though is rebuttable yet it restrains to anticipate that the officers entrusted with statutory duty would act in contravention of law. 23 The presumption under Section 114(e) will come to the aid of the party, only if the party proves the fact that the judicial or official act has been, in effect, done or performed and that too in accordance with law. 24 Official work is presumed to be correct unless faulted or disproved by cogent evidence. 25 Since there is a presumption that all official acts are properly done, it must be held that the Deputy Superintendent of Police who conducted the departmental enquiry had the authority to do so. 26 The presumption can be drawn, if the Court is satisfied that the act ion in question is traceable to a statutory power even when the authority concerned has omitted or committed an error in reciting the correct provision of law. 27 Legislature must be presumed to know the facts and conditions rendering a statute expedient and beneficial. 28 Unless the contrary is proved the court has to presume that an impugned act has been validly enacted and that all the necessary formalities or its enactment have been duly complied with. 29 It must be presumed that in making nominations to the State Legislative Council, the Governor must have act ed on the advice of his Council of Ministers. Court is entitled to presume regularity of official acts. 30 The Supreme Court held that Courts are bound to take judicial notice of the prorogation, when

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Governor issued a public notification and to presume the regularity of the act ions under the notification which must be interpreted so far as possible so that things done may be valid rather than invalid. 31 Where the Government issues a notification that a certain land is urgently required for public purposes, it may be presumed that the Government's decision on the issue of urgency is properly done. 32 When the Government accords sanction for prosecution, it is presumed that the official acts have been regularly performed. 33 There is a presumption when a statutory authority makes an order, that it has followed the prescribed procedure. 34 Where a Deputy Secretary to Government makes an order in his own right without authenticating it as issued in the name of the President, the order is not valid. The presumption of official act could not be invoked. 35 Where the Govt. authority made appointment of as many as 6000 odd employees without any written order i.e., without issuing any appointment letter, thus without following the prescribed procedure, the presumption under Section 114(e) does not get attracted. 36 Where the document was filed before the authority who endorsed and returned back the document in original but no entry about it was made in the official records. The plea that the document was filed before the authority was raised late and the authority in question was not examined. The Court held that that presumption as to the correctness of the official act could not be attached to such a document. 37 Presumption is that every public officer performs his duty honestly and in accordance with law. 38 Presumption of correctness arises in respect of those documents which were prepared and maintained by the public officers in due discharge of their duties as per requirement of rules. 39 Where mala fides or abuse of power is alleged in respect of an official act, the presumption is that officials discharge their duties honestly and in accordance with law. This presumption is heightened in the case of high officials occupying senior positions in contradistinction to minor and petty officials. 40 In a writ petition against Government, the burden of proof of the petitioner pleading mala fides is heavy. Presumption of proper performance of duty by a public servant cannot be rebutted by making mere vague allegations. 41 Where a statute has conferred the privilege of exercising discretion on a responsible officer the court can legitimately presume that he has not acted capriciously. 42 Public Officers are assumed to act fairly. But this presumption holds goods only as long as the aggrieved party is not able to adduce facts proving the likelihood of discrimination. 43 The court is entitled to presume that official acts have been performed in their regular course. 44 Courts are entitled to presume that Government orders have been made in due course of its authority. 45 Where the order of detention under J&K Public Safety Act was signed by the Additional Home Secretary to Government who was competent to sign the said order, there arises the presumption of its validity. 46 There can be no presumption against the express provisions of law which are embodied in any statutory enactment or in any rules made under such enactments or even against principles enunciated in judicial precedents. 47 In the absence of contrary evidence, the State Government should be presumed to act with complete propriety and without any bias . 48 Entries in a birth registered maintained in a police station under U.P. Police regulations were presumed to be correct. 49 The presumption under Section 114, illus. (e ) to the effect that the court may presume that official acts have been regularly performed is hardly applicable to an entry about the age in the electoral roll which is made on hearsay and is not verified or attested. 50 Presumption of correctness attached to counting of votes is not destroyed when a single mistake is detected while counting ballot papers of an election. 51 There is no necessity for drawing a presumption under Section 114(e) where the statute directs a document to be filed and the certificate shows on the face of it to have been filed. The filing is sufficiently proved by the certificate. 52

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A person who challenges a revenue sale, has to prove irregularities. Entries in books of Collector will be presumed to be correct under Section 114(e). 53 Entries in Collector's books are presumed to be correct having regard to illus. (e ) and (f ). 54 The maintenance of Jamin Kharda in respect of salt pans was an official act of the Collector and in view of Illustration (e) of Section 114, it may be presumed that the said official acts have been regularly performed and the entries were correctly taken unless contrary is proved. In the instant case, entry in Jamin Kharda about transfer of licence of salt in favour of son on the death of his father can be considered to determine the appropriate date of death of the father. 55 There is presumption that an Act done by municipality has been done according to prescribed procedure. 56 The confidential reports submitted by the medical examiners of the Life Insurance Corporation will have to be accepted as true. 57 The certificate by Board of Censor is relevant but does not create a presumption that Sections 292 and 293of I.P.C. are not violated. 58 When official act is done, it is presumed to have properly done. 59 Waxilmulars is a village administration paper prepared with due care after due enquiry by a public servant in the discharge of his official duty and so presumption of correctness attaches to it. 60 Where the business of the Government relating to the state affairs was published in Government publication, it may be presumed to be correct unless rebutted. 61 Before any presumption can attract to an order under Defence of India Rules, it must be shown to be, on the fact of it, regular and to conform to the provisions of the rule under which it purports to have been made. 62 Where an order passed by the authority has been published by it in the Official Gazette, it may be presumed that it was aware of the provisions of Rule 119, Defence of India Rules, and that the publication in the Gazette was caused in compliance with all its provisions. 63 An Officer passing an order should be presumed that he was authorised to pass the order until the contrary is shown. 64 Where a Municipal Council Constituted Committee and delegated some of its powers and functions to them, the delegation must be presumed to be validly made. 65 There is no presumption by which a delegation of power could be presumed. 66 Where the powers of requisition are delegated to Collectors by the State and the Collectors are satisfied about the necessity for requisition, the State is presumed to be satisfied with regard to such requisition. 67 The presumption is that the public purpose of the Eviction Act for which the person is sought to be evicted from the public land was duly specified in the notice in compliance with the requirement of the Act. 68 Notification under Sections 4 of the Land Acquisition Act is an official Act. Unless contrary is proved, it may be presumed to have been properly done. 69 Where land was acquired by the Government for a company, it may be presumed that land was acquired for purpose of business of the company. 70 Persons mentioned in notice under Sections 9(3) of Land Acquisition Act must be presumed to be the only persons interested.71 It may be presumed that the consent of Government under Sections 40 of Land Acquisition Act has been granted. 72 The presumption that the facts stated in a Government notification are correct is not an absolute presumption and may be rebutted by proper evidence. 73 Presumption as to the correctness of public purpose notified by the Government, is rebuttable and the court can examine the purpose. 74 Cases. --Where the investigating team conducted search and seizure within the limits of another police station without informing the concerned police station to avoid delay and subsequently, the investigating officer wrote two letters regarding it to the concerned police station, it could be presumed that the official acts were performed regularly. 75 Where the Returning Officer had called the candidate and the proposer to remain present at the time of scrutiny of the nomination form but they did not turn up when their names were called on microphone and therefore after examining the forms by himself he rejected his nomination paper because of wrong electoral roll number mentioned therein, presumption arises that the official act s were done in accordance with rules and procedure. 76 Where the application of a candidate for admission was duly processed and scrutinized through subcommittee which recommended her admission on being fully satisfied about eligibility, there arose the presumption as to performance of official act. Further, after pursuance of the course for one year, withholding of her examination result for the verification of eligibility for admission was held to be illegal, especially when she took no undue advantage by deception or subterfuge. 77 Where notices for default of payment of debt under the State Financial Corporation Act were signed by the Branch Manager of the Corporation and not the Manager who was empowered under the Act, it was held to

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be proper as the Branch Manager had act ed with properly delegated authority. 78 Where the cancellation of the mining lease on the ground of the report of the enquiry by the Government that the mining area fell within the forest area was challenged by the petitioner who did not place the report on the Court record, presumption as to correctness and regularity of official acts in submitting the report could be drawn. 79 Where delivery of the allotted land under the Punjab Security of Land Tenures Act , 1953 was the official act of the revenue authorities a presumption has to be raised that all the antecedent formalities were duly complied with.80 Merely because the file containing the communitycum-residence certificate issued earlier to the petitioner was destroyed, the genuineness and correctness of the certificate could not be doubted unless there were other circumstances to rebut the presumption as to official act s. 81 17 Lokesh Chandra v. State, 1998 AIHC 3387 (para 15) (Raj). See also Polyglass Acrylic Manufacturing Co. Ltd. v. Commissioner of Customs, (2003) 4 SCC 762 (para 8) : AIR 2003 SC 3419. 18 State of Maharashtra v. Admane Anita Moti, AIR 1995 SC 350 (para 3). 19 Shahnaz Shaharyari v. Vijay Y. Gawande, AIR 1995 Bom 30 (paras 19 and 24). The Court referred to State of Maharashtra v. Ramdas Shrinivas Nayak, AIR 1982 SC 1249 : 1982 CrLJ 1581 (para 4 p. 1251). 20 Kanwar Sahkari Awas Samiti Ltd. v. State of U.P., 1999 AIHC 3210 (paras 27 and 30) (All). 21 International Woollen Mills v. Standard Wool (U.K.) Ltd., AIR 2001 SC 2134 (para 17), overruling Sheikh Abdul Rahim alias S.A. Rahim v. Mohammed Din, AIR 1943 Cal 42. 22 Girdharlal M. Pittie v. A.A. for Industrial & Financial Reconstruction, AIR 1998 Del 400 (para 2). 23 Mohan Singh v. Regional Transport Authority, Jaipur, 1998 AIHC 4758 (para 25) (Raj). 24 Vijaya College Trust v. Kumta Co-operative Arecanut Sales Society Ltd., AIR 1995 Kant 35 (para 10). 25 Kartar Singh v. D.D.A., AIR 2000 Del 184 (paras 12 to 16). See also Collector, Sundergarh v. Marienus Kusan, 2001 AIHC 82 (para 2) (Ori); State of Assam v. Keshab Prasad Singh, AIR 1953, SC 309, 312 (para 27). 26 Chhotka v. State, AIR 1958 Cal 482; Corporation of Calcutta v. Krishna Mohan Kundu, AIR 1954 Cal 254; Balkrishna S. Joshi v. State of M.B., AIR 1957 MB 130; Anwar Khan v. Bhoor Singh, AIR 1952 Raj 152; Ambika Prasad v. State of U.P., (1960) 2 All 131. 27 B.S.E. Brokers Forum, Bombay v. S.E.B.I., AIR 2001 SC 1010 (paras 20 and 21). 28 Raval & Co. v. K.G. Ramachandran, AIR 1967 Mad 57(FB) . 29 Narayana v. Shankar Narayana, AIR 1953 Tra & Co. 53. See also Engineering Kamgar Union v. Electro Steels Casting Ltd., AIR 2004 SC 2401 (paras 38 and 39) : (2004) 6 SCC 36. 30 Biman Chandra Bose v. Governor, W.B., AIR 1952 Cal 799. 31 State of Punjab v. Satya Pal, AIR 1969 SC 903, 912 : 1969 (1) SCR 478. 32 Ishwarlal Girdhar Lal Joshi v. State of Gujarat, AIR 1968 SC 870. 33 M.S. Reddy v. State Inspector of Police, A.C.B., Nellore, 1993 CrLJ 558 (para 43) (AP). 34 Gopal Narain v. State of U.P., AIR 1964 SC 370; (imposition of tax); Lallomal v. I.T.O., Kanpur, AIR 1959 All 775; Khurkhur v. State, AIR 1970 All 198(FB) ; Prahlad Ram v. State of Rajasthan, 2004 AIHC 3957, 3963, 3964 (paras 28 to 35) (Raj). 35 P.B. Pardasani v. State, AIR 1967 Punj 174. 36 Ashwani Kumar v. State of Bihar, AIR 1996 SC 2833 (paras 20 and 21). 37 Zorawar Singh v. Sarwan Singh, AIR 2002 SC 1711 (para 12) : (2002) 4 SCC 460. 38 State v. Magha, ILR 1951 Raj 429. 39 Twarku v. Surti, AIR 1997 HP 76. 40 Bhupindar Singh v. State of Haryana, AIR 1968 Punj 406.

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41 Darshan Singh v. State, 1975 CrLJ 1974(Punj) . 42 Jyoti Sarup v. Board of Revenue U.P., AIR 1953 All 25. 43 Uttar Pradeshiya Shramik Maha Sangh, Lucknow v. State of U.P., AIR 1960 All 45; Joseph Thomas v. State of Kerala, AIR 1958 Ker 33. 44 Brojendra Kumar Saha v. Union of India, AIR 1961 Cal 217. 45 Magermans A.H. v. S.K. Ghose, AIR 1966 Cal 552; Mahikchand Cwaotelal , 1968 MP 138. 46 Mohd. Yasun Ahanger v. State, 1993 CrLJ 727 (paras 6 and 8) (J&K). 47 Oinam Ibomcha Singh v. Ninghthoujam Mangi Singh, AIR 1957 Manipur 18. 48 Workers and Staff Association of Govt. Soap Factory v. State of Mysore, AIR 1971 Mys 22. 49 Ram Das v. State of Maharashtra, (1970) 2 SCC 124 : AIR 1977 SC 1164. 50 Charanjit Lal v. Lehri Singh, AIR 1958 Punj 433. 51 Tribeni Ram v. Satyadeo Singh, AIR 1966 All 20. 52 Durga v. Secretary of State, AIR 1954 SC 62. 53 Najib Mohammad v. Rahman Khan, AIR 1952 Ori 131. 54 Mahommed Solaiman v. Birendra Chandra Singh, (1922) 50 Cal 243 : 50 IA 247; Emperor v. Shib Charan, AIR 1938 All 386. 55 Jamunabai Bhalchandra Bhoir v. Moreshwar Mukund Bhoir, AIR 2009 Bom 34, 37 (para 9). 56 Commissioner of Gaya Municipality v. Chamari Ram, (1967) 45 Pat 246. 57 L.I. Corporation v. B. Chandravathamma, AIR 1971 AP 41. 58 Raj Kapoor v. State (Delhi Admin), AIR 1980 SC 258. 59 Soni Bachu Lakhman v. State, AIR 1960 Guj 37. 60 Avadh Kishore Das v. Ram Gopal, AIR 1979 SC 861. 61 R.S. Nayak v. A.R. Antulay, AIR 1986 SC 2045. 62 Rex v. Sibnath, AIR 1943 FC 75. 63 Mahadeo Prasad Jayaswal v. Emperor, AIR 1946 Pat 1. 64 State of Uttar Pradesh v. Benaras Electric Light and Power Co. Ltd., AIR 1973 All 74; Anumathi Sadhukhan v. A.K. Chatterjee, AIR 1951 Cal 90. 65 Venkateshwararao v. Masulipatam Municipal Council by Commissioner S. Subbarao, AIR 1952 Mad 608. 66 Mahabir Prasad Lilha v. Purulia Electric Supply Corp. Ltd., AIR 1958 Cal 661 : 1958 CrLJ 1394; Union of India v. Parmindar Singh, AIR 1962 Raj 244. 67 Dhan Devi v. Bakhshi Ram, AIR 1969 Punj. 68 Jaidutt v. State of U.P., AIR 1979 SC 1303. 69 Hakim Fazal Mohd v. State of W. Bengal, (1969) 1 Cal 529. 70 Commissioner of I.T. v. Rohtas Industries Ltd., AIR 1966 Pat 338. 71 Hakim Fazal Mohd v. State of W. Bengal, ILR (1969)1 Cal 529. 72 Aurora Ram Ditta Mal v. State of Uttar Pradesh, AIR 1958 All 126.

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73 New India Assurance Company Ltd. v. Central Govt. Industrial Tribunal, Dhanbad, AIR 1953 Pat 321. 74 Jaishi Ram Goel v. Punjab through Secretary Industries Dept., Punjab Government, AIR 1962 Punj 177. 75 Ronny v. State of Maharashtra, AIR 1998 SC 1251 : 1998 CrLJ 1638 (para 30) (SC). Contra : Auction of shop, acceptance of plaintiffs bid, plea that her bid not accepted, not proved, presumption of official acts performed regularly, Krishna Rani Kwatra v. Delhi Development Authority, AIR 1999 Del 194 (para 12). 76 Rafiq Khan v. Laxmi Narayan Sharma, (1997) 2 SCC 228. Also see Sanjay Kumar Bajpai v. Union of India, (1997) 10 SCC 312. 77 Lumbini Baruah v. Cotton College, Guwahati, AIR 1997 Gau 87. 78 Kshudiram Pal v. West Bengal Financial Corporation, AIR 1998 Cal 52, at p. 54. 79 Kamal Singh v. State, AIR 1998 All 220 (para 7). 80 Krishna Kumari v. State of Haryana, (1999) 1 SCC 338. 81 P.S. Manoharan v. State of Tamil Nadu, AIR 1999 Mad 208 (para 17).

22. SERVICE OF TRUE COPIES Where the Registrar of the High Court endorsed that true copies were filed at the time of presentation of the election petition and that the "election petitions were in order", it raises the presumption that the true copies were served on the respondent and the onus was on the respondent to adduce evidence and bring sufficient materials on record so as to enable the Court to rebut the presumption of correctness of official work having been done in regular course of business. 82 82 Chandrakant Uttam Chodankar v. Dayanand Rayu Mandrakar, AIR 2005 SC 547 : (2005) 2 SCC 188.

23. FILING OF REQUISITE NUMBER OF COPIES Where in an election petition it was alleged that requisite number of copies of the election petition were not filed whereas the Registry of the High Court had certified that the requisite number of copies were duly filed and the petition was in order, onus was on the respondent to rebut the presumption of the correctness of the official work having been done in regular course of business. 83 83 Chandrakant Uttam Chodankar v. Dayanand Rayu Mandrakar, AIR 2005 SC 547 (para 85) : (2005) 2 SCC 188; Satya Narain v. Dhuja Ram, AIR 1974 SC 1185 : (1974) 4 SCC 237 and Rajendra Singh v. Usha Rani, AIR 1984 SC 956 : AIR 1984 SC 956 were held per incuriam (para 37).

24. REGISTERING OFFICER Facts recorded by the Registrar on the document could be presumed to be correct. 84 It may be presumed that a document is validly presented to the Registrar who proceeded to register the same. 85 A certified copy of a registered document can be accepted as correct copy under Section 114(e). 86 When a document contains a number and page of the register in which it is copied, a presumption can be raised that the certified copy and the endorsement must have been copied from the Register Book. 87 As to the endorsed document by the Sub-Registrar, it shall be presumed that the document was executed without fraud and undue influence and the same would be admissible in evidence. 88 Where the Will was registered, it could be presumed that the act of the Registrar, being an official act, was regularly made and that the signatory to the document was in sound disposing state of mind at the time of signing the document and affixing the thumb impression, though the Sub-Registrar could not identify the testator. 89 A presumption could be drawn that the Registrar has discharged his official duties in accordance with law and certificate of registration also under certain circumstances be taken as evidence of execution.

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But if the executant herself comes before the Court and denies the execution of the document and if there are other circumstances supporting such denial, the presumption stands rebutted and the plaintiff is expected to produce better evidence. 90 Where the procedure laid down by law is not followed, validity of registration cannot be presumed in favour of the party. 1 That a document is registered does not raise a presumption that the Registrar must have read it out to the execution. 2 84 Kameshwara Rao v. Suryaprakasa Rao, AIR 1962 AP 178; Jhunkaribahu Alias Katrawali w/o. Laxmiprasad v. Y. Phoolchand Alias Manikchand, AIR 1958 MP 261; G.P. Lakshmi v. T.B. Rajamma, 2000 AIHC 4885 (para 31) (Kant). 85 Mahaluxmi Bank Ltd. v. Kamakhyalal Goenka, AIR 1958 Ass 56; Apaya Dundyappa v. Govind Dattatraya, AIR 1956 Bom 625; Fuljari Lal v. Ram Sarup, AIR 1953 MB 177. 86 Rabindra N. Das v. Santosh Kumar Mitra, AIR 1975 Cal 381; Sudayan Ammal v. Saleyath Marry, AIR 1973 Mad 421. 87 Ramdayal v. Bhanwarlal, AIR 1973 Raj 173(FB) . 88 Koli v. Piru Ram, 2008 AIHC 786(NOC) (HP) . 89 Y. Lakshminaryanan v. S.Y. Balasubramanian, (2009) 1 MLJ 966, 972 (para 23). See also Tandonbi Devi v. Kalamu Singha, AIR 2009 (NOC) 587(Gau) . 90 Backiam v. Krishnan, 2000 AIHC 2317 (paras 22 and 23) (Mad). 1 Nandeshwar Chakravarty v. Mahendra Nath Sarma, AIR 1956 Ass 123. 2 Chinnamma v. Devanga Sangha, AIR 1973 Mys 338.

25. ADMINISTRATIVE FUNCTION OF HIGH COURT The officers of the High Court are required to perform administrative functions one of which is to scrutinize the election petition so as to ascertain as to whether the petitions filed before the Court are free from any defect. Such an official act would draw a presumption of having been performed in ordinary course of business in terms of illustration (e) of this section. 3 In Jugal Kishore Patnaik v. Ratnakar Mohanty , 4 the Supreme Court raised a presumption of correctness as regards the endorsement made by an officer of the Court in respect of the election petition stating : "We see no cogent ground to question the correction of this endorsement which clearly lends support to the inference that the copy filed with the petition had been attested by the respondent and the petition did not suffer from any lack of compliance with the procedural requirement".

3 Chandrakant Uttam Chodankar v. Dayanand Rayu Mandrakar, AIR 2005 SC 547 (para 41) : (2005) 2 SCC 188. 4 Jugal Kishore Patanaik v. Ratnakar Mohanty, AIR 1976 SC 2130, as cited in Chandrakant Uttam Chodankar v. Dayanand Rayu Mandrakar, AIR 2005 SC 547 (para 42) : (2005) 2 SCC 188.

26. NOTARY PUBLIC There is presumption that a notary public must have satisfied himself in discharge of his official duties that the person executing the power of attorney is the proper person. Fact that the notary does not say so in his endorsement is not material. 5 Where an illiterate lady executed a document by affixing her thumb impression before a notary and there was no endorsement by the notary to the effect that the contents of the document were explained to her and the notary was not examined as a witness, no presumption under Section 114 can be raised regarding the execution of the document. 6

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Where an affidavit was not sworn in India, but before an Oaths Commissioner in Pakistan, presumption of regularity of official act would not apply. 7 A power of attorney executed in a foreign country, duly attested by a notary public of that country and authenticated by financial commissioner of Punjab affixing his signature and stamp on it, shall be presumed to be a valid document, it being properly executed. 8 5 Jugraj Singh v. Jaswant Singh, AIR 1971 SC 761. 6 Haji Abdul Gaffar v. Maden L. Khandblwal, (1966) 2 Cal 235. 7 Ghulam Mohammad v. Badshah Begum, AIR 1970 J&K 159. 8 Chanan Kaur v. Pakhar Singh, AIR 2004 P&H 121, 125 (para 10) : 2004 (1) Cur CC 259 : 2004 (1) Rec Civ R 113 : 2004 (1) Civil Court C 225.

27. POLICE OFFICER Presumption that a person acts honestly, applies as much in favour of a police officer as of other persons, and it is not judicial approach to distrust and suspect him without good grounds therefor.

9

9 Devender Pal Singh v. State N.C.T. of Delhi, AIR 2002 SC 1661 (para 9) : (2002) 5 SCC 234 : 2002 CrLJ 2034 relying on Aher Raja Khima v. State of Saurashtra, AIR 1956 SC 217 : 1956 CrLJ 421; See also Karamjit Singh v. State (Delhi Admn.), AIR 2003 SC 1311 (para 8) : (2001) 9 SCC 161 : 2000 CrLJ 3178; Girja Prasad v. State of M.P., (2007) 7 SCC 625, 632 (para 25).

28. ELECTRICITY BOARD The Electricity Board, being a body corporate and having an organised establishment and office, presumption is in its favour for having kept documents in the regular course. 10 10 Umiya Glass Industries, Indore v. M.P. State Electricity Board, AIR 2006 MP 105, 106-07 (para 6).

29. SANCTION ORDERS When a letter intimating that sanction had been granted, is received, presumption would arise that sanction had in fact been accorded and that official act of granting sanction was regularly performed. 11 Where the sanction of a complaint by a Police Inspector is addressed to the I.G. of Police and there was nothing on record to show the Inspector was duly authorised, presumption that Inspector's action was not unauthorised can be drawn. 12 11 Tulsi Ram v. State of U.P., AIR 1963 SC 666; State of Rajasthan v. Ram Dayal, 1984 CrLJ 1224(Raj) ; Rampukar Singh Watchman v. State, AIR 1954 All 223; Gurbachan Singh v. State, AIR 1970 Delhi 102. 12 Public Prosecutor v. Mulugu Jwala Subramanyam, 1957 CrLJ 1389 : AIR 1957 AP 987.

30. REGISTERED POSTAL ARTICLES, LETTERS ETC. Existence of acknowledgments in respect of registered articles in post office would raise a presumption that those articles were delivered to the addressee. Presumption may be rebutted by evidence of addressees that articles were in fact not received by them 13 but bare denial of his signature on the acknowledgement would not be sufficient to rebutt the presumption 14 and mere making a bold statement that the order had been passed without giving a notice. 15 Where the postal cover is correctly addressed and sent by registered post, the presumption with regard to service would arise under both the provisions of Section 114 of the Evidence Act and Sections 27 of the General Clauses Act . The evidence of actual tender and refusal to accept delivery is not necessary to bring

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about the presumption.16 Wilful evasion by the addressee could not be inferred where the envelop containing notice did not show correct address of the accused. 17 Where a registered letter was sent prepaying fee on the address of the addressee and signatures on acknowledgement and address on notice were not disputed by the defendant, it would be presumed that the same had been received by the addressee and onus to rebut such a presumption by a strong evidence would be on the addressee. 18 Where the notice returned with endorsement that the addressee was out of station, the notice would be deemed to be duly served. 19 Where a notice is sent by registered post, presumption will arise in favour of the sender. 20 Where the endorsement by the postman on the registered cover indicated that he had gone to the address of the addressee several times but it was not clear whether he was present in the house or avoided to take delivery, his absence from the house cannot lead to the presumption of delivery. No steps were taken to send the notice by registered post again. 21 Where the registered notice sent by the landlord to the tenant was received back with endorsement "not claimed", it could not be treated to be one of refusal. The tenant denied the receipt of the notice on oath and the landlord produced no evidence to the contrary. No presumption of service of notice could be drawn. 22 Once notice by registered post is sent at the correct address and acknowledgement due has not been returned back to the Court within 30 days from the date of summons, it would therefore, deemed to have been served and presumption of service in law can be made. Where summons were sent by registered post but the same was returned with the remark of the post office that "praptkarta ke pass bar bar jana ya suchana dene par bhi nahin mile athah preshak ko vapas", any irregularity in service of summons would not render this service on the respondents illegal in absence of any denial that address on registered post was incorrect as such it would not be served on them. 23 The registered notice issued to the defendant returned with endorsement 'addressee absent' which revealed that the addressee refused and hence returned to the sender. Service was presumed. The defendant did not examine him on oath to rebut the presumption. It was held that mere denial was not sufficient to rebut the presumption. 24 Ordinarily a statement of the addressee on oath that the postal cover, said to have been refused by him, was never tendered to him would be sufficient to discharge the presumption of service and shift the onus on the other side to establish by evidence that the service had been duly effected 25 but not the mere denial. 26 Where a registered notice sent to the tenant was returned as unclaimed, it would be presumed that the notice was served on the tenant and mere denial of receipt of notice by the tenant in statement on oath would not rebut the presumption of service of notice. 27 A letter requesting appointment of arbitrator was sent under certificate of posting in departure from the usual procedure of sending communication through courier and registered A.D. and the said change in procedure was not explained. Besides, the copy of the said letter was not produced before the Court. It was held that presumption under Section 114 of the Evidence Act cannot be raised merely because the addressee did not produce the receipt register before the Court. 28 13 Radha Kishan v. State of Uttar Pradesh, AIR 1963 SC 822. 14 Shashi Singh v. Sukh Swarup Kapoor, 1996 AIHC 3013 (paras 11 and 19) (All). 15 Yakil Singh Patel v. State of U.P., 2004 AIHC 3495, 3496 (para 6) 11 & 12 (All). 16 Jagat Ram Khullar v. Battumal, AIR 1976 Delhi 111; Zakir v. Mohammad Hussain Khan, AIR 1977 All 476; State of Maharashtra v. Nazmunnisa, (1998) 9 SCC 191; State of M.P. v. Ramdeo Agrawal, 1995 CrLJ 1512 (para 9) (MP); 17 Suresh Kanhaiyalal Prajapat v. Manoj Balkrishna Bansal, 2003 CrLJ NOC 94 : (2003) 1 MPLJ 361 : 2003 (2) All Ind Cas 581 : 2003 (1) Bank Cas 463 : (2003) (2) CrLJ 488 : 2003 (1) MP HT 165 : 2003 (3) Rec Cr R 382. 18 Sudesh Tikoo v. Raj Yanshi, 2004 AIHC 4560, 4564 (para 15) (J&K). 19 Aparna Agencies, Hyderabad v. P. Sudhakar Rao, 2000 CrLJ 1005 (paras 7, 8, 12 and 13) (AP). 20 Abhoyjan Tea Co. Ltd. v. Agricultural I.T. Officer Shillong, AIR 1966 Assam 84. See also Kamla Shanker v. Jagdish Lal, AIR 2008 (NOC) 1483(Raj) . 21 Jameel v. State of U.P., 2000 CrLJ 3049 (para 7) (All). Notices sent by Regd. Post A/D refused on more than one occasion, presumption of proper service, Purshottam Das Chokhani v. Sarita Devi Nathani, AIR 2006 Gau 160, 164-65 (para 25).

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22 Lalmani Ramnath Tiwari v. Bhimrao Govind Pawar, 2001 AIHC 2125 (paras 11 and 12) (Bom). See also A. Rama Rao v. Raghunath Patnaik, AIR 2007 (NOC) 2355(Ori) . 23 Hari Gopal v. Vijay Kumar, AIR 2008 (NOC) 333(All) : 2007 (6) ALJ 573. Refusal to receive, presumption of service, Kailash Rani Dang v. Rakesh Bala Aneja, (2009) 1 SCC 732, 738 (para 24). 24 A. Rama Rao v. Raghunath Patnaik, 2008 AIHC 75(NOC) (Ori) . 25 Jagat Ram Khullar v. Battu Mal, AIR 1976 Del 111. 26 Chander Kanta Singhal v. Kapadia Exports, 1998 AIHC 153 (para 22) (Del). 27 David K.N. v. S.R. Chaubey, 2003 AIHC 2879 (paras 8 to 18) (Bom) : 2003 (4) Bom CR 612 : 2003 (3) All MR 511. 28 Kuljit Singh & Co. v. Engineering Projects (India) Ltd., AIR 2008 (NOC) 1202(Del) .

31. LETTER BY ORDINARY POST Where the appointment letter was sent by ordinary post, the Supreme Court held that even in relation thereto a statutory presumption arises. 29 29 State of Bihar v. Amrendra Kumar Mishra, (2006) 12 SCC 561, 565 (para 14) : (2006) 12 JT 304.

32. ENTRIES IN RECORD OF RIGHTS, REVENUE RECORDS Entries in record of rights can be presumed to be correct until presumption is rebutted 30 and if they remained unchallenged for a period of sixty years inspite of alienation of some of the property, the inchoate right became absolute as full ownership. 31 The entries in the revenue records are generally to be accepted at their face value and courts should not embark upon into their correctness. But the presumptions of correctness can apply only to genuine, not forged or fraudulent entries. The distinction may be fine but it is real. One cannot challenge the correctness of what the entry states, but the entry is open to attack that it was made fraudulently and surreptitiously. 32 A revenue record is not a document of title. It merely raises a presumption in regard to possession. 33 Presumption arising from several entries in revenue records of large number of years in respect of ownership and possession of land with a certain person is not rebutted by mere stray entries in favour of others when evidence is of uncertain character and inadequate. 34 The presumption of correctness in confined only to the possession of the party on the date of record and does not confer any title on such party 35 but the entries in the remarks column have no presumptive value as to the rights/possession. 36 Where the decision given by the trial court and the lower appellate court long before the publication of record of rights, was in conflict with the entries in the record of rights, the presumption as to correctness of the entries in the record of rights does not prevail. 37 An entry in the Record of Rights stands on a different footing than other sort of entries in other village papers or mutation papers and the law does not attach so much sanctity to them as it does to the entry in the Record of Rights, which is presumed to be correct. 38 The presumption regarding the correctness of entries in record of rights attaches also to nonagricultural lands. 39 Where there is a conflict between the old record of rights and the recent one, the presumption is that the recent record is correct unless it is proved by evidence to be incorrect. 40 Khasra entry has presumptive value of its correctness. It showed names of two brothers since long without any challenge on the basis of which it was concluded that it was a joint Hindu property, the

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same being supported by oral evidence also. It was held that it called for no interference. 41 Entry in Khasra is not conclusive proof of any right. There must be cogent evidence and the rights of parties cannot be determined on mere surmises and conjectures. 42 Khasra entries have only presumptive value 43 and so are the entries in nazul register but the presumption of their correctness is rebuttable. 44

The truth of relationship may be presumed from the entries made in settlement pedigree tables.

45

All formalities in respect of mutations must be presumed to have been complied with. No proof of such compliance is necessary. It is for the other party to rebutthe presumption. 46 Entries in mutation registers do not confer any title. Mutation is not evidence of title. 47 Mutation of property does not create or extinguish title nor it has presumptive value of title. 48 Where mutation was done in compliance to the orders of the Sub-Divisional Officer, without placing and proving the said order, the said mutation entry could not be relied upon. 49 Jamabandhi has no presumptive value as record of rights. 50 Entries in the Municipal Jamabandhis cannot prove title 51 but preparation of phaisal patti by the Tehsildar, being his official act, presumption would attach to it under Section 114(e) of the same having been regularly performed. 52 A presumption of truth was attached with revenue records showing the petitioner as ' Gair Marusi ' in Jamabandis on rent of Rs. 550/- per annum, more so, when the revenue records were supported by the resolutions of the Gram Panchayat and fortified by the receipts regarding payment of rent leading to only one conclusion that the petitioner was a tenant over the land in dispute. 53 Entries in the annual village papers under Sections 45 and 50 of the Madhya Bharat Land Revenue and Tenancy Act, 1950 create presumption albeit rebuttable in favour of a person whose name is recorded. 54 Rebuttal.-- The presumption of correctness of an entry in the revenue record cannot be rebutted by a mere statement of fact in the written statement. It could be rebutted only by leading evidence as to its incorrection. 55 30 Raja Rajinder Chand v. Sukhi, AIR 1957 SC 286; Avadh Kishore Dass v. Ram Gopal, AIR 1979 SC 861; Commissioner of Wealth Tax, A.P. v. Officer-in-Charge Paigah AIR 1977 SC 113; Jatindra Nath Malik v. Sushilendra Nath Palit, AIR 1965 Cal 328; Paras Ram v. Dayal Das, AIR 1965 Him Pra 32; Karthiayani Pillai v. Janaki Pillai Lekshmi Pillai, AIR 1958 Ker 335; Korada Gedha v. Raghoab pati, AIR 1963 Ori 121; Kalika Prasad Ojha v. Jhenjh Kuer, 1964 Pat 241; Ramgobind Singh v. Ramranbijai Singh, AIR 1958 Pat 279; Wasawa Singh v. Jagir Singh, AIR 1965 Punj 494; Mohanlal v. Mohum Ram, AIR 1966 HP 61; Jagat Chandra Marak v. Ulfat Ali Bhuiya, AIR 1970 Tri 43; Gulap Singh v. Union of India, AIR 1977 Gau 41; Shyama Sahu v. Anam Sahu, AIR 1976 Ori 126; Paramananda v. Hadibandhu, 1997 AIHC 880 (para 5) (Ori); Secretary to Government of India, Ministry of Defence, New Delhi v. Indira Devi, 1999 AIHC 4682 (para 8) (AP), relying on Shikarchand v. D.J.P. Karini Sabha, AIR 1974 SC 1178; S. Venkatappa v. Narayanappa, AIR 2001 SC 2148 (para 14), reversing L.R.R. P. No. 2035 of 1990, Dt. 7-8-1996 (Kant); Dasarath Singh v. Manvoti Dei, AIR 2006 Ori 115, 117 (para 9). 31 Krushna Panda v. Godabari, 1997 AIHC 478 (paras 7 and 8) (Ori). 32 Vishwa Vijay Bharati v. Fakhrul Hassan, AIR 1976 SC 1485; following Sonawati v. Sri Ram, AIR 1968 SC 466. See also Karewwa v. Hussensab Khansaheb Wajantri, (2002) 10 SCC 315 (para 3) : AIR 2002 SC 504. 33 Gurunath Manohar Pavaskar v. Nagesh Siddappa Navalgund, AIR 2008 SC 901, 903 (para 12) : (2007) 13 SCC 565. See also Rangubai Bhanudas Saudar v. Ramkrishna Abaji Jadhao, AIR 2008 (NOC) 2421(Bom) : 2008 (4) AIR Bom R 283. 34 Bhimeshwara Swami Varee Temple v. Padapudi Krishna Murthi, AIR 1973 SC 1294. 35 Nirmalendu Chakrabarty v. State of West Bengal, 1997 AIHC 1861 (para 24) (Cal). 36 J.R. Ahir v. P.R. Yadav, AIR 2000 MP 223 (paras 5 and 6), relying on Churamani v. Ramadhar, 1991 MPLJ 311. 37 Kazi Md. Hossain v. Sibram Bondopadhaya, AIR 1967 Cal 10; Abdulsab v. Special Deputy Commissioner, (1976) 2 Kant 1430. 38 Janandan Rai v. Mandeo Rai, AIR 1997 Pat 124. See also M.T.W. Tenzing Namgyal v. Motilal Lakhotia, AIR 2003 SC 1448 (paras 33 and 34) : (2003) 5 SCC 1. 39 Satish Chandra Karmakar v. Shaikh Sahadat Hossain, AIR 1973 Cal 264.

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40 Haji Mumtajuddin v. Debendra Nath Seal, AIR 1959 Cal 78; Rewa Shankar v. Narasinghji Maharaj, AIR 1957 HP 16. 41 Khemchand Kashiram Pawar v. Baliram Hariram Pawar, AIR 2006 (NOC) 1522(MP) . 42 Sukhbasi Lal v. Durjan Singh, AIR 1963 All 119; Beant Singh v. Natha Singh, 1955 HP 48. 43 Kashiram v. State, AIR 1996 MP 246 (para 9). 44 Nagar Palika Bulandshahr v. Hanuman Prasad, 1996 AIHC 3148 (paras 13 and 14) (All). 45 Mangal Singh v. Manphul Singh Jaimal Singh, AIR 1961 Punj 251. 46 Raj Kumari v. Co-op. Insurance Co. Ltd., Amritsar, AIR 1951 Punj 126. 47 Ram Sarup v. State of Punjab, 1987 CrLJ 928(P&H) ; Talat Fatima Hasan v. Nawab Syed Murtaza Khan, AIR 1997 All 122; State of H.P. v. Keshav Ram, AIR 1997 SC 2181, reversing RSA No. 122 of 1986, Dt. 4-5-1994 (HP); Nawalshankar Ishwarlal Dave v. State of Gujarat, 1994 CrLJ 2170 (para 4-A) : AIR 1994 SC 1496; Presumption in favour of entry in record of rights, burden to prove it incorrect lay on party challenging it, Anwar Hossain Sheikh v. Santi Kumar Mondal, AIR 1997 Cal 120; Sawarni v. Inder Kaur, AIR 1996 SC 2823 (para 7), reversing RSA No. 1253 of 1994, Dt. 22-11-1994 (P&H); mutation does not affect the possessory right of a person, T. Siddeshi v. Deputy Commissioner, AIR 2001 Kant 297 (para 5). 48 Purshottam Dass Tandon v. Military Estate Officer, AIR 2000 All 127 (para 16) : 2000 AIHC 2818. See also Kelu Behera v. State of Orissa, 2001 AIHC 2806 (para 6) (Ori). 49 Akshara Nand v. State of H.P., 1996 AIHC 1894 (para 7) (HP). 50 Gobind Singh v. Parsuram Ram, ILR (1973) Cut 76. See also Guru Amarjit Singh v. Rattan Chand, AIR 1994 SC 227 (para 2). 51 Ramji Batanji v. Manohar Chintaman, AIR 1961 Bom 169. 52 Pabbathi Reddy Sudarshan Reddy v. Pabbathi Reddy Sashirekhamma, AIR 1996 AP 300 (para 10). 53 Ajit Singh v. Joint Development Commr., 2005 AIHC 2562, 2563 (paras 4&5) (P&H). 54 Kasturchand v. Haribilash, AIR 2000 SC 3037 (paras 16 and 17). 55 Karewwa v. Hussensab Khansaheb Wajantri, AIR 2002 SC 504 (para 3) : (2002) 10 SCC 315.

33. ANALYST'S REPORT A report signed by a Public Analyst under the Prevention of Food Adulteration Act , 1954, without any other proof, is admissible in evidence under this clause. 56 Rules 7 and 18 under Prevention of Food Adulteration Act , 1954 are mandatory. Presumption under Section 114(e) of Evidence Act, 1872 in regard to regularity of procedure followed by public analyst may be raised when there is proof that the food inspector had discharged his functions according to rules.57 Where seal fixed on the container and the outer cover of the sample tallied with the specimen impression of the seal, sent separately by the Food Inspector and the report of the Public Analyst showed that he found that material intact and unbroken, presumption could be drawn that R. 18 of the Prevention of Food Adulteration Rules, 1955, has been complied with. 58 Food Analyst's report says that he received the sample and the specimen of seal separately. It is to be presumed that he received them in the manner stated in the report. 59 The public analyst's report stating that the sample was properly sealed is not conclusive. Section 114 cannot be invoked. 60 Clean and dry bottles and others containers are to be used for drawing and storing samples, under Rule 14, Prevention of Food Adulteration Rules. There was no evidence by the prosecution to show that the rules were complied with. However, it was held that the court may presume compliance under Section 114. 61

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Where there was delay in compiling the report on the analysis of a sample, presumption that analysis of the sample was also delayed cannot be drawn. 62 56 State v. Chhotekhan, AIR 1970 MP 29, (FB); Babulal Hargovindas v. State of Gujarat, AIR 1971 SC 1277; Food Inspector, Vizianagaram Municipality v. Kurmapu Surya Prakasa Rao, 2001 CrLJ 1101 (paras 2 and 4) (AP), holding Food Inspector, Mangalore Corporation v. A.G. Suvarua, 1985 CrLJ 709(Kant) not a good law in view of Kassim Kunju Pookunju v. Ramakrishna Pillai, 1969 Ker LJ 50 : 1969 LAR 15(SC) . 57 Marry Lazrado v. State of Mysore, AIR 1966 Mys 244. 58 State of H.P. v. Narendra Kumar, AIR 2004 SC 2711 (para 8) : (2004) 4 SCC 567. 59 Ram Prasad v. State of Bihar, 1976 CrLJ 651(Patna) ; State of Haryana v. Isher Dass, 1985 CrLJ 1061(FB) ; Subbayyan v. State of Kerala, 1968 CrLJ 1554 : AIR 1968 Ker 330; Krishna Rajaram v. M.V. Koranne, 1068 Bom 727 : AIR 1968 Bom 247; Jammu Municipality v. Faquir Hussain, 1968 CrLJ 162 : AIR 1968 J&K 17; Food Inspector, Tellicherry Municipality v. T.V. Usman, 1986 CrLJ 535; Revta v. State of M.P., 1987 CrLJ 1967(IB) . 60 Nirmal Kumar v. State, 1987 CrLJ 46(MP) . 61 State of Assam v. Puranmal Agarwalla, 1985 CrLJ 46(DB) (Gau). 62 Public Prosecutor v. Venkataswami, AIR 1967 And Pra 131 : 1967 CrLJ 603.

34. NOTICE REQUIRED UNDER AN ACT Where under an Act certain things are required to be done before any liability attaches to any person in respect of any right or obligation, it is for the person who alleges that liability, incurred to prove that the things prescribed in the Act, have been actually done. No presumption can be made in favour of the things prescribed by the Act having been done. If, for example, publication of a notice was essential under an Act in order to bind a person, such publication must be distinctly proved. 63 But the Privy Council has held that in the absence of evidence to the contrary it has to be presumed that the procedure laid down in a statute was duly followed and that proper statutory notice was given. 64 Where a warrant contains a preamble that the requirement of a section of an Act has been fulfilled, a presumption arises under this illustration that the officer issuing the warrant has performed his duty correctly. 65 Where the publication of notification regarding land acquisition proceedings was made locally, it could be presum- ed to be have been made as per a requirement of the Act unless proved otherwise. 66 The endorsement by the peon that he affixed the copy of notification at a conspicuous place in the locality, is sufficient to raise the presumption under Section 114(e). It need not be proved beyond shadow of doubt. 67 Where the question was whether the notice sent to the addressee through registered letter was relating to the demand of money pursuant to dishonour of cheque under Sections 138 of the Negotiable Instruments Act , the envelop and receipt of the registered letter showed correct address of the addressee and carbon copy of the notice was never challenged by the petitioner and it was not his case that there was any other transaction between them, wherein the complainant had sent some other letter with registered post, it would be presumed that the notice sent through registered post by the complainant to the petitioner was relating to the demand of the money pursuant to dishonour of cheque.68 The Calcutta High Court has held that the Privy Council has virtually overruled the decisions which laid down that it is not sufficient for the purpose of proving service of notice to rely on the presumption arising out of this section. 69 63 Ashanullah Khan Bahadur v. Trilochan Bagachi, (1886) 13 Cal 197; Walvekar v. Emperor, (1926) 53 Cal 718 : AIR 1926 Cal 960. 64 Jitendra Nath Ghose v. Manmohan Ghose, (1930) 57 IA 214 : ILR 58 Cal 301 : AIR 1930 PC 193. 65 Emperor v. Savlaram Kashinath, (1947) 49 Bom LR 798 : AIR 1948 Bom 156. 66 Susanna v. State of Kerala, 1997 AIHC 3879 (para 11), Vol. 6 (Ker).

697

67 Ajay Krishna Singhal v. Union of India, AIR 1996 SC 2677 (paras 9 and 12). See also Cheruvanoor Nallalam Grama Panchayath v. Kathalatt Ravi, AIR 2006 Ker 132, 134-35 (para 7). 68 Malanbai Ratnaparkhi v. Govind R. Motadee, 2002 CrLJ 1188, 1193 (para 8) (Bom) : 2002 (4) All CrLR 909 : 2002 All MR 1767(Cri) ; Mujaffar Hussain Mansoori v. Devendra Trivedi, AIR 2009 (NOC) 135(MP) . 69 Sasi Sekhar Sen Biswas v. Maharaja Bir Bikaram Kishore Manikya, (1931) 35 CWN 1239 : AIR 1932 Cal 267.

35. REGULAR ENQUIRY Where the order refusing the grant of Ryotwari patta was passed after conducting a regular inquiry under the Rules, presumption of the official act s being correctly done arose. 70 70 Mohsin S. Mehdi v. State of A.P., 1996 AIHC 3929 (paras 7 to 11) (AP).

36. VALID TITLE Where the tenant had been in long possession, presumption of valid title and completion of all formalities preceding the allotment was raised. 71 71 Krishna Kumari v. State of Haryana, (1999) 1 SCC 338.

37. ABUSE OR MISUSE OF POWER The Court will not lightly presume abuse or misuse of power so far as the powers conferred on the President by Art., 356 of the Constitution are concerned and will make allowance for the fact that decision-making authority is the best judge of the situation. Interference by Court is called for only when there is clear abuse of power or what is sometimes called fraud on power. 72 72 Rameshwar Prasad (VI) v. U.O.I., (2006) 2 SCC 1, 168-69 (para 249) : AIR 2006 SC 980, per A RIJIT P ASAYAT , J., dissenting.

38. PRESUMPTION AGAINST BIAS The Supreme Court observed that it is difficult to believe that two top-most officers of the respondent bank, who were accepted without demur or protest as members of the Committee, and a person of the rank of Chairman-cum-Managing Director of an unconcerned bank and who had no concern in the matter whatsoever, would all conspire together so that the appellant was denied an extension. 73 73 D.C. Aggarwal v. State Bank of India, (2006) 5 SCC 153, 164 (para 28) : AIR 2006 SC 2105.

39. VALID MARRIAGE In an inter-caste marriage, the wife was a Christian and the husband, a Hindu. The marriage was performed according to Hindu Vedic Rites. Their children were given Hindu names and received noncatholic instructions in school, the wife went alongwith her husband to Hindu religious places and participated in religious ceremonies like pooja , havan etc. and lived in the Hindu family of her husband for eight years. In a divorce/judicial separation case the husband challenged the validity of their marriage on the ground of her non-conversion to Hinduism before marriage. The High Court held that it could be presumed that the priest must not have performed marriage without conversion and there was no need of proof of shudhikaran ceremony. 74 74 Madhavi Ramesh Dudani v. Ramesh K. Dudani, AIR 2006 Bom 94, 98 (para 13).

698

40. COMMON COURSE OF BUSINESS [ILLUSTRATION (f)] This illustration leaves it to the discretion of the court to presume that a common course of business has been followed; but the court is not bound to presume it. 75 According to Section 114, illustration (f) of the Evidence Act, when it appears to the Court that the common course of business renders it probable that the thing would happen, the Court may draw presumption that the thing would have happened, unless there are circumstances in a peculiar case to show that the common course of business was not followed. Consequently, the Court can presume that the common course of business has been followed in particular cases. When applied to communications sent by post, Section 114 enables the Court to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. 76 In commercial transactions the presumption is that the usual course of business was followed by the parties thereto. Where the defendent does not prove any exceptional circumstances to conclude that regular course of practice was not followed in his case, a bare denial by him cannot be believed so as to rebut the presumption under Section 114(f). 77 When a notice issued by an officer of the Company purports to have been issued by order of the Board of Directors, the presumption is that it was issued pursuant to such an order in the common course of business. 78 The entry of the despatch number in a despatch register should ordinarily be presumed to be correct in the absence of any evidence to the contrary. 79 The practice followed by a peon was to despatch letters on the day he received it or on the next day, or else to return it at the office. There was an entry in the peon's book showing that the letter was received by the defendant but there was no date of receipt of the letter. It was held that the court could draw conclusion that the letter was received by the defendant either on the date when the letter was despatched or on the next day. 80 Where it is shown that the railway administration had sent to the booking station intimation of the arrival of goods, it may be presumed that the booking station received the intimation. 81 In a case of loss of goods in transit, the railway failed to produce 'outward tally book' and seal labels when required, an adverse inference could be drawn against it. 82 Though the place to which goods were to be booked was not stated in the agreement, but it implied that an understanding must have been to book the goods to the place where the plaintiff carried on his business in the absence of any other place agreed to. 83 In the usual course of business of the insurance company, marine premium debit was issued. A copy thereof was attached to copy of policy kept in the office. In such a case, the court is entitled to rely on presumption afforded by Section 114(f), that the practice of insurance company of attaching such a note to the policy had been followed in a particular case and proof of preparation of original premium note is not required. 84 Entries in the regularly maintained register of a nationalised company have been held to be perfectly reliable. 85 A cheque of a customer was honoured beyond his balance without any agreement as to overdraft. It was presumed to be a loan 86 Where two sets of account were seized, the court refused to draw the presumption that accounts showing less turn-over were correct. 87 Where the rate of rent specifically mentioned in the rent note was neither denied nor disputed by the tenant, fixation of standard rent as per rent note was held to be proper and the entries in the account books showing lesser rent were immaterial. 88 In a recovery proceeding of unpaid sale consideration by the Official Liquidator against the purchaser of goods, there was no evidence to prove the receipt of goods by the purchaser, no liability could be fastened on the purchaser merely on the basis of entries in the account books of the company, though regularly kept, more so when the account books were beset with many clerical/arithmetical errors. 89 Persons dealing with statutory bodies are presumed to have notice of provisions of the Act governing such corporations. 90 Where there is no evidence to show that reserves were non-existent or they were being utilised for a purpose other than the business of company, presumption is that they were being utilized as working capital of the company. 91 Where the counsel of the accused puts defamatory questions to the complainant, the court has to start with the presumption that the questions were put on the instructions of the client. 92 Reply to a plaintiff's notice received from the defendant by post, though typed and unsigned, may be presumed to be on behalf of the defendant. 93

699

The Privy Council held: "The personal tender or delivery may take place anywhere; the vicarious tender or delivery must take place at the residence of the person intended to be bound by the notice. In the case of joint tenants, each is intended to be bound and it has long ago been decided that service of a notice to quit upon a joint tenant is prima facie evidence that it has reached the other joint tenants." 94 Where the notice of termination of tenancy was issued by the lawyer on behalf of the plaintiff/ landlady which was proved by her father/agent, it would be presumed that the father was authorised to instruct the lawyer to give notice and onus to disprove it would lie on the defendant /tenant. 1 A party in order to get benefit of the provisions contained in Section 114(f) must place some evidence in support of his case. In the instant, a daily wager alleged that conditions precedent for his retrenchment, required to be complied with in case a workman had worked for 240 days in the proceeding twelve months prior to his alleged retrenchment which he failed to establish, were not complied with. He was not even able to show the terms and conditions of his offer of appointment and the remuneration received. He did not examine any witness in support of his case. The retrenchment was held to be not illegal. 2 This presumption is also attracted to legislative enactments.

3

75 Ram Das Chakarbati v. Official Liquidator, (1887) 9 All 366, 376. 76 C.C. Alavi Haji v. Palapetty Muhammed, (2007) 6 SCC 555, 563 (para 13) : 2007 CrLJ 321, affirming D. Vinod Shivappa v. Nanda Belliappa, (2006) 6 SCC 456 : (2006) 3 SCC 114(Cri) : AIR 2006 SC 2179 and K. Bhaskaran v. Sankaran Vaidhyan Balan, (1999) 7 SCC 510 : 1999 SCC 1284(Cri) . 77 Salik Ram Sahu v. Bindeshwari Ram Rauniyar, 1965 All LJ 839. 78 East and West Insurance Co. Ltd. v. Kamala Jayantilal Mehta, AIR 1956 Bom 537. 79 Badri Prasad v. Satish Kumar Sharma, AIR 1964 Raj 184. 80 Sailabala Dassee v. H.A. Tappassier, AIR 1952 Cal 455. 81 G.P. Venkataraman and Co. a Firm v. Union of India owning Eastern Railway, AIR 1958 Mad 321. 82 Union of India v. Roop Narayan, AIR 1997 Raj 123. 83 Firm Seth Hajarimal, Proprietor Hamir Chand v. Gulab Chand Udechand Firm, AIR 1956 Nag 118. 84 Hira H. Advani v. State of Maharashtra, AIR 1971 SC 44. 85 SKARSM Ramanathan v. NTC Ltd., New Delhi, AIR 1985 Ker 262. 86 Bank of Maharashtra v. United Construction Co., AIR 1985 Bom 432; (False explanation does not create any presumption); Abdul Karim v. State of Mysore, 1979 CrLJ 1123 SC : AIR 1979 SC 1506. 87 State of Kerala v. M.M. Mathew, AIR 1978 SC 1571; K.M. Patel v. Firm, Mohd. Hussain Rahimbux, AIR 1981 SC 977; (accounts not produced). 88 Girdhari Lal v. Prabhu Dayal, 1997 AIHC 170 (para 9) (Raj). 89 Hada Steel Products Ltd. v. Emjay Engineering Enterprises, AIR 1995 P&H 327 (para 5). 90 Nimar Industrial Corporation Pvt. Ltd., Khandwa v. M.P. Electricity Board, AIR 1973 MP 281. 91 Employees of Azam Jahi Mills Ltd. v. Workmen, AIR 1967 SC 1222. 92 Ayeasha Bi v. Peerkhan Sahib, 1954 CrLJ 1239(Mad) . 93 Nathu Ram v. Firm Bhoneylal Hiralal, (1971) 21 Raj 472. 94 Harihar Banerji v. Ramshashi Roy, AIR 1918 PC 102; see also Commissioner of Hazaribagh Municipality v. Fulchand Agarwala, AIR 1966 Pat 434; Bhushan Chandra Paul v. Bengal Coal Co. Ltd., AIR 1966 Cal 63. 1 Umesh Chandra Srivastava v. Sheela Srivastava, 2000 AIHC 1463 (para 7) (All).

700

2 Municipal Corporation, Faridabad v. Siri Niwas, AIR 2004 SC 4681 (paras 13, 14, 15, 19 and 21) : (2004) 8 SCC 195, reversing C.W.P. No. 624 of 2000 dated 3.5.2001 (P&H). 3 Engineering Kamgar Union v. Electro Steels Castings Ltd., AIR 2004 SC 2401 (paras 38 and 39) : (2004) 6 SCC 36.

41. POSTAL SERVICE If a letter is put into a post office, that is prima facie proof, until the contrary appears, that the party to whom it is addressed received it in due course. 4 Post marks on letters are prima facie evidence that the letters were in the post at the time and place therein specified... if a letter properly directed, is proved to have been either put into the post office or delivered to the postman, it is presumed, from the known course of business in that department of public service, that it reached the destination at the regular time, and was received by the person to whom it was addressed. 5 The presumption under Section 114 stands rebutted when the addressee states on oath that such a letter was not tendered to him or refused by him. 6 There is a presumption of despatch of a letter sent under registered cover, if the same is returned back with a postal endorsement that the same could not be served on the addressee for whatever reasons. The burden to rebut the presumption lies on the party, challenging the factum of dispatch of the letter. Mere denial by him is not sufficient to rebut the presumption. 7 See the undermentioned cases where it was held that a mere denial of receipt of notice served by post will not be sufficient to rebut the presumption arising under Section 114 of the Evidence Act. 8 A notice under Order 37, C.P.C. sent through registered post was received by some one on behalf of the defendant. It could be presumed that it was delivered to the defendant. 9 The presumption is stronger when the letter is sent by registered post and the acknowledgement is signed by someone at the other end 10 and it would not be necessary to examine the postman simply because the receipt of the notice was denied by the addressee/trustee 11 and the Court need not wait for service by ordinary process. 12 The existence of acknowledgements in respect of letters given in the post office would raise a presumption that those articles were delivered to the addressee. 13 Where a notice is required to be served by post under any Central or State Government and a notice is dispatched by a registered post an obligatory presumption of due service would arise. 14 Where the post cover has been correctly addressed and has been sent by registered post, the presumption with regard to service would arise under both provisions of Section 114 of the Evidence Act and Sections 27 of the General Clauses Act .15 Where there is an endorsement of postman that a letter sent by registered post was refused, there is presumption of service of the letter of notice. Bare statement of the addressee on oath denying tender and refusal to accept, is not sufficient to rebut the presumption. 16 Where a notice sent by registered post was returned with endrosements 'not claimed' and 'mis-sent' made by postal peon who visited the premises twice it should be taken considering the first endorsement i.e. "not claimed" that the letter was refused giving rise to the presumption of due service. 17 Where the notice addressed to the addressee was sent by registered post or certificate of posting, in spite of his absence from his house a presumption would be raised that the notice was received by him as the sender of the notice by the registered post could not be put to disadvantage for the lapse of the addressee for not making the arrangements for the receipt of the mail addressed to him. 18 The effect of sending a letter to the post office will in general, be regarded as presumptively proved, if the letter be shown to have been handed to or left with the person whose duty it was in the ordinary course of business to carry it to the post office. 19 Where a draft was purchased and sent by post to the payee who was residing at a distance of 38 miles, presumption would be that there was implied request to send it by post and the act of posting itself would amount to deliver of draft. 20 From the invitation cards, bearing the postal stamps of the place of posting and also that of the place of destination, an inference could be drawn that in the normal course they were posted and received by the addressee. 21 Where a post card is received through the Post Office, presumption that it was written by the purported sender cannot be drawn. The only presumption that can be drawn is that it reached the addressee in an ordinary course. 22

701

However it has been held that the effect to be given to the word "refused" on a registered cover as proof of the tender of the packet to the addressee is one of fact and will depend upon the circumstances of each case. 23 The presumption stood rebutted when the addressee showed that the whole family was out of station at the material time on a mooran ceremony. 24 Where a notice was sent by a registered post was returned as "refused", the court is to be careful in drawing any presumption because it is not unusual for the postman to make such endorsements without proper care and sometimes deliberately. 25 In the absence of proof to show that the sender gave correct particulars of the addressee on the notices and on the forms of acknowledgement, and the defendant had categorically denied receipt of any notice and also to have signed the acknowledgement, the presumption under Section 114 of the Evidence Act, and Sections 27 of the General Clauses Act , cannot arise and the onus to prove service of notice would be on the sender.26 Postal receipt in proof of dispatch of registered notice along with a copy of notice bearing correct address, would arise a presumption, in the absence of return of the notice by the Dead Letter Office, that the notice reached the destination. Insufficient address of the addressee on the postal receipt does not rebut the presumption. 27 Where the demand notice under the Negotiable Instruments Act s was sent under registered post acknowledgement due but neither postal cover nor the acknowledgement was returned, it could be presumed that the addressee had received the notice; 28 but where the allottee denied the receipt of demand letter for the final payment from the DDA, the presumption got rebutted and the burden shifted to the DDA to prove the service of the letter either by examining the postman or by producing a delivery receipt and allotment should not have been automatically cancelled for non-payment. 29 However, where the husband had written at lease five registered letters asking his wife to come and all those letters had come back with postal endorsement "refused", it was held that it was not an absolute necessity of law to always examine the postal peon. No defence was taken by the wife in her written statement regarding collusion of the husband with the peon and neither had she alleged to have answered any of the letters. It was held that presumption of correctness of the postal endorsement did not stand rebutted by the wife. 30 Where notice for recovery of maintenance was sent to the husband by Registered Post and not as contemplated under Section 125(3),Cr.P.C., the same being illegal, the question of any inference about its receipt to be drawn does not arise.31 Presumption of correspondence through post arises only when it is proved by calling the writer or one who was conversant with his writing or atleast the person who posted it. Similarly, refusal by an addressee can be presumed when the endorsement to that effect by the postal peon is proved by calling him or some one to prove his handwriting. 32 If the notice is addressed to joint lessees and it is tendered and refused by one of them, constructive knowledge to other lessees may be presumed. 33 Where a parcel sent by V.P.P. was delivered to the addressee but money was not recovered, from him, the person sending the parcel is entitled to presumption under Section 114 that the common course of business has been followed and that parcel was duly delivered and payment was received by post office. 34 The presumption created by refusal to take a letter is not belittled by the inability of the postman to identify the addressee after a gap of time. 35 Presumption is not merely as to delivery but also as to knowledge of contents.

36

A "certificate of posting" not only raised the presumption that the letter was duly posted but also the presumption that the letter was received by the addressee. 37 The notice required to be sent on dishonour of cheque for demand of amount of it under Sections 138 of the Negotiable Instruments Act can be sent through Certificate of Posting also and a presumption under this section can be drawn that the letter sent under Posting of Certificate has been received by the addressee. 38 The law does not raise an unrebuttable presumption that the postal article sent under certificate of posting was received by the addressee/ petitioner in due course. 39 Where summons was published in the newspaper and a copy of the said newspaper was sent to the party on his address under certificate of posting and its delivery was not rebutted, there arose presumption regarding service of summons. 40 However it was held that a certificate of posting raises a presumption that the letter has been posted

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but no presumption as to its receipt by the addressee can be drawn. 41 A certificate of posting raises a presumption that a letter was posted as described in the certificate, but the presumption does not go to the extent of covering the contents of the letter. 42 Presumption under Section 114 available for service under certificate of posting should not be given effect to where a notice sent by registered post is returned with the endorsement "Left". 43 A certificate of posting is easy to procure and does not inspire confidence. 44 Presumption of service of communication sent through Under Certificate of Posting (UPC) stands dislodged the moment, the addressee denies its receipt. 45 Where no manner of sending and serving the notice was prescribed, it must have been sent by Registered Post as specified under Sections 30 of the General Clauses Act ; but the notice was sent under certificate of posting. The addressee landlord denied the receipt of notice on oath. No presumption as to its service arises and it was obligatory on the tenant to prove the service of notice. 46 A certificate of posting obtained by sender is not comparable to a receipt for sending a communication by a registered post. As no record is maintained by the post officer regarding a letter posted under certificate of posting like a letter sent under registered post, either about the receipt of the letter or the certificate issued, a certificate of posting many be of very little assistance where the dispatch of such communication is disputed or denied. 47 Letters sent under postal certificate do not afford a proof about delivery of letters but at the most may be treated as proof of dispatch. 48 It may be presumed that an M.O. was tendered to the addressee living in the same town within about a week or ten days from the date of remittance. 49 There is a presumption that the postal authorities returned the amount sent by money order to the sender if it could not be delivered to the payee. 50 Where a money order is sent by a tenant within the statutory period and the landlord refuses to receive it, there is sufficient tender and the tenant must be deemed to have fulfilled his part of duty. It is not necessary to examine the postman to prove refusal. 51 In the absence of proof that money order is correctly addressed, presumption that money order must have reached the addressee cannot be drawn. 52 An order of Government Communicated by telegram, neither expressed in the name of the Governor nor authenticated by proper authority, must be presumed to have been validly posted when there is clear averment of the existence of such an order. 53 Mere entries in the Despatch register are not sufficient to raise the presumption of due service on the addressee in the absence of an affidavit or other evidence to show that the copies were handed over to or left with the person whose duty it was in the ordinary course of business to carry them to the post office. 54 Service of notice will not be presumed when issued against a dead person.

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4 B EST 12th Edn., S. 403, p. 344. 5 T AYLOR 12th Edn., S. 179, p. 163; Harihar Banerji v. Ramanshashi Roy, AIR 1918 PC 102; Amulya Charan v. Cropn. of Calcutta, AIR 1950 Cal 256; Balgovind Rastogi v. Bhargava School Book Depot, AIR 1958 All 369; Abhoyjan Tea Co. (P) Ltd. v. Agricultural I.T. Officer, Shillong, AIR 1966 Assam 84; Union of India v. Kalinga Textiles, AIR 1969 Bom 401; Bhushan Chandra Paul v. Bengal Coal Corpn. Ltd., 1966 Cal 63; Hazaribagh Municipality v. Ful Chand, AIR 1966 Pat 434; K.V. Subbayya v. P.R.R. T. Co., AIR 1972 AP 72; Jagat Ram v. Battamal, AIR 1976 Del 111; Omprakash Bahel v. A.K. Shroff, AIR 1973 Del 39; Memon Adambhai Haji Ismail v. Bhaiya Ram Das, AIR 1975 Guj 54(FB) . 6 Meghji Kanji Patel v. Kundanmal Chamanlal Mehtani, AIR 1968 Bom 387; Jagat Ram Khullar v. Battamal, AIR 1976 Del 111; Ram August Tewari v. Bindeshwari Tewari, AIR 1972 Pat 142; Shri Dutt Singh v. Ram Dass, AIR 1980 All 280; Jaidutt v. State of U.P., (1979) 2 SCR 175 : AIR 1979 SC 1303. 7 P. Purushotham Reddy v. Pratap Steels Ltd., AIR 2003 AP 141, 148 (para 28). 8 Pakharsingh v. Kishan Singh, AIR 1974 Raj 112; Asa Ram v. Ravi Prakash, AIR 1966 All 519; Kanak Lata v. Amal Kumar, AIR 1970 Cal 328; Sukumar Guha v. Naresh Chandra Ghose, AIR 1968 Cal 49. 9 O.N. Tikku v. Karan Singh, AIR 1989 J&K 25. 10 Hazaribagh Municipality v. Fulchand, AIR 1966 Pat 434. 11 Shashikant Sadashiv Bagwe v. State of Maharashtra, AIR 1995 Bom 172 (para 7).

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12 Piara Singh v. Amrik Singh Lyalpuri, AIR 1994 NOC 335(Del) . 13 Radha Kishan v. State of U.P., AIR 1963 SC 822; Jagannath v. Amarendra Nath, 1957 Cal 479; Commissioner of I.T., West Bengal v. Malchand Surara, Calcutta, AIR 1956 Cal 537; Green View Radio Service v. Laxmibai Ramji, AIR 1990 SC 2156. 14 Mona Ranjan Das Gupta v. Suchitra Ganguly, AIR 1989 Cal 14. 15 Jagat Ram Khullar v. Battamal, AIR 1976 Del 111. See also Fazal Ahmad v. K.N. Jain, 2001 AIHC 464 (para 11) (All). 16 Har Charan Singh v. Shiv Rani, AIR 1981 SC 1284; Anil Kumar v. Nanak Chandra Verma, AIR 1990 SC 1215; Puwada Venkateswara Rao v. C.V. Ramana, AIR 1976 SC 869; (it is not necessary always to examine the postman); M.P. Swamy v. Mangaram Agarwalla, AIR 1979 Ori 11; Shyam Narayan v. Raghunath Prasad, AIR 1977 Pat 155; Chanda Babu v. Chaugani Ram, AIR 1963 All 250; Saeed Ahmed v. Syed Qamar Ali, AIR 1973 All 24; Ram Autar v. Savitri Devi, AIR 1976 All 515; Munshilal v. Nazir, (1967) 2 All 49; Shamsadbi v. Gunavantibai, ILR (1973) Bom 432; Sarkar Estates Pvt. Ltd. v. Kusumika Iron Works Pvt. Ltd., AIR 1961 Cal 439; Munni Devi v. Pushpalata Mondal, (1967) 1 Cal 550; Kunju Vishwanadhan v. Ramkrishnan Surendran, 1998 CrLJ 3553, at p. 3555 (Ker); Ilias Sk. v. State of W.B., 1997 AIHC 1055 (para 6) (Cal). 17 (1977) 1 Cal 588; Yallappa v. Durgappa, 2007 AIHC 493, 495 (para 8) (Kant); M.C. Mohammed v. Gowramma, 2007 AIHC 721, 738 (para 25) (Kant). 18 Kukatla Kotaiah v. District Collector (Panchayat Raj), Ongole, 2005 AIHC 3119, 3122 (para 14) (AP). 19 Chunilal Dwarkanath v. Hart Ford Fire Insurance Co. Ltd., AIR 1958 Punj 440. 20 Tukaram Bapuji Nikam v. Belgaum Bank Ltd., 1976 Bom 185. 21 Vandavasi Karthikeya v. S. Kamalamina, AIR 1994 AP 102 (para 25). 22 Ashokkumar Uttamchand Shah v. P.M.A. Chanchad, AIR 1999 Guj 108 (para 16). 23 Gopal v. Krishna, (1901) 3 Bom LR 420. 24 Rama Devi v. Ram Prakash, AIR 1985 All 17; (But not by showing that the signatory had no authority to sign); Kirty Basu v. Peasy Mohan Sarkar, AIR 1985 Cal 162; (mere denial of service is not a rebuttal); Suhila Devi v. Manoharlal, AIR 1985 All 178; Hajrabi Abdul Gani v. Abdul Latif Azizulla, AIR 1996 Bom 192 (para 7). The Court referred to Anil Kumar v. Nanak Chandra Verma, AIR 1990 SC 1215. Presumption rebutted by examining handwriting expert who examined acknowledgement receipt, signature found to be not of accused, Laxmandas v. Amar Rochwani, AIR 2007 (DOC) 270(MP) : 2 (2007) BC 178. 25 Kumbhar Naran v. Nanalal, AIR 1988 Guj 5. 26 Munshi Ram v. Shakuntala Devi, AIR 1978 J&K 31. 27 Ayisa beevi v. Aboo Backar, AIR 1971 Ker 231. 28 G.S. Srikanth v. Sri Lakshmi Financiers, 1999 CrLJ 329, at p. 332 (AP). 29 V.N. Bharat v. D.D.A., AIR 2009 SC 1233, 1237 (paras 19-22). 30 Arup Hazra v. Manashi Hazra, AIR 2009 Cal 135, 138-39 (paras 9-14). 31 V.P. Shivanna v. Bhadramma, 1993 CrLJ 418 (para 6) (Kant). 32 Parshotam Lal v. Kalyan Singh, AIR 1971 J&K 20. 33 Shri Nath v. Saraswati Devi, AIR 1964 All 52. 34 Union of India v. Firm Ram Gopal, AIR 1960 All 672. 35 Ram Sheree v. Khadiji Bibi, AIR 1981 All 5. 36 Harcharan Singh v. Shiv Rani, AIR 1981 SC 1284; Shri Nath v. Saraswati Devi, AIR 1964 All 52. 37 Chhaya Devi v. Lahoriram, (1963) 67 Cal WN 819; Achamma Thomas v. F.R. Fairmen, AIR 1970 Mys 77; Santosh Kumar Gupta v. Chinmogee Sen, 1966 Cal 615; Kashilal Agarwalla v. Jawaharmal, AIR 1966 Ass 104; J.N. Eranna Rao v. D.H.S. Setty & Co., AIR 1960 AP 331; Dhanapati Devi v. Corpn. of Calcutta, AIR 1952 Cal 467; Meghji Malsee

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Ltd. v. P.C. Oammen, AIR 1963 Ker 306; Santosh Kumar v. Chinmoyee Sen, AIR 1966 Cal 615; Babulal Talokchand Shah v. Purshotham, ILR 1963 Bom 583; Dineshwar Prasad v. Manorama Devi, AIR 1978 Pat 256; Amrutlal Weljibhai Rathod v. Vishwas Deorao Patil, 1989 Bom 410; Jagdish Kaur v. Rabindra Singh, Madoda, AIR 1991 Del 50. 38 C.E.I. Consultancy v. Modi World Infotech, 2002 CrLJ 2731, 2734 (paras 7&8) (AP) : 2002 (1) Andh LT (Cri) AP 517 : 2002 (3) Bank Cas 438 : 2002 (3) civil Court C 375 : 2002 (3) Rec Cr R 306. 39 Ramesh Rajaram Patil v. Addl. Commissioner, Aurangabad Division, AIR 1995 Bom 91 (para 8). 40 EMESS Advertising Service v. Hindustan Times Ltd., AIR 1998 Del 14. 41 B.L. Shrivastava v. M.M.L. Shridhar, AIR 1975 MP 21; Prem Prakash Kapoor v. Gobind Ram Kapoor, AIR 1976 J&K 37. 42 Baldeo Das v. Maina Bibi, (1973) 1 Cal 469. 43 Surajmull Ghanshyamdas v. Smadarshan, AIR 1969 Cal 109. 44 Gadakh Y.K. v. Balasaheb Vikhe Patil, AIR 1994 SC 678 (para 60). 45 Rampur Engineering Co. Ltd. v. United Construction, AIR 2002 Del 170, 177. 46 Fakir Mohd. v. Sita Ram, AIR 2002 SC 433 (para 11) : (2002) 1 SCC 741. 47 State of Maharashtra v. Rashid Babubhai Mulani, AIR 2006 SC 825 : 2006 CrLJ 794, 798 (para 14) (SC). 48 Shiv Singh v. U.O.I., AIR 2007 (NOC) 1879(MP) . 49 Parameshwari Devi v. Abrar Husain, AIR 1971 All 22; Mahabir Singh v. Anant Ram, AIR 1966 All 214. 50 Bibhuti Bhusan Ray v. State of W.B., (1975) 1 Cal 99. 51 Rajaram v. Ganapatlal Vaishya, AIR 1973 MP 268; Sobhraj v. Bhanwarlal, AIR 1975 Raj 196. 52 Man Mohan Chawla v. Jaswant Singh Sethi, ILR 1969 Del 316. 53 Barada Kanta Bishya v. Assam Board of Revenue, AIR 1967 Assam 22. 54 Kallawwa v. Tamanna Murari Patil, AIR 1977 Kant 45. See also Surender Bala v. Sundeep Foam Industries P. Ltd., AIR 2000 Del 300 (pp. 302 and 303). 55 Municipal Corporation, Ludhiana v. Inderjit Singh, (2008) 13 SCC 506.

42. WITHHOLDING EVIDENCE [ILLUSTRATION (g)] This illustration deals with the presumption arising from withholding evidence. The conduct of the person withholding the evidence may be attributed to a supposed consciousness that the evidence, if produced, would operate against him. 56 This illustration enables a Court to draw an adverse inference, if the party does not produce the relevant evidence in his power and possession. 57 It is not a sound practice for those desiring to rely on a certain state of facts to withhold from the court the best evidence which is in their possession which would throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof. 58 B EST ON E VIDENCE , Section 411, states that this rule of presumption under illus. (g ) is based on the principle that no one shall be allowed to take advantage of his own wrong. The rule contains the well known maxim "Omnia praesumnutur contra spoliation". Where a person withholds wrongfully evidence, every presumption to his disadvantage, consistent with the facts admitted or proved, has to be adopted. "The non-production of evidence that would naturally have been produced by an honest and, therefore, fearless claimant permits the inference that its tenor is unfavourable to the party's cause". (W IGMORE Section 285).

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In case of withholding best evidence adverse inference can be drawn 59 but no adverse inference can be drawn for non-production of a notification published in the Official Gazette which is a public document and has the effect of law. 60 The presumption of adverse inference cannot displace the contrary inference supported by adequate evidence. 61 In order to entitle the Court to draw inference unfavourable to the party, the Court must be satisfied that evidence is in existence and could have been proved. 62 Before drawing the adverse inference, the court must be satisfied about the existence of the relevant evidence in the possession of the party which could be produced. 63 Where neither party produces any evidence, even though any of them can produce it, if available, absence of evidence does not help either party. 64 Where available evidence is not produced, it is not obligatory but optional to draw a presumption under Section 114(g) of the Evidence Act . It is one of fact, depending upon the whole set of facts. 65 The original F.I.R., alleged to have been sent to the Magistrate, was not produced and its alleged carbon copy bore neither the initials of the Magistrate nor the seal of the Court was affixed on it. Neither its date of receipt nor any serial number of tapal receipt register was given. Adverse inference could be drawn that the F.I.R. was not received by the Magistrate. 66 Where the FIR was not produced despite direction by the Sessions Court, it raised a doubt against the prosecution case. 67 Where in an accidental claim petition, the true relationship between the truck-owner and the appellant company which had entered into a hire-purchase agreement with the truck-owner as a security for an alleged loan granted by the appellant to the truck-owner, had been suppressed by withholding from the Court the real documents executed between them, the Courts below were held justified in drawing an adverse inference against the appellant and fastening joint liability on it. 68 Where a witness stated that he had received letters threatening the deceased and that the same are with the police, a failure to produce them created an adverse presumption. 69 Where the order was passed by authorities to make payment of all installments by the petitioner, stating that land in question would be transferred to the petitioner and Scheme of Rules was also showing that legislature was aware of difference between words, allotment and transfer of land. Wherever allotment was to be made word 'allotment' had been used and wherever transfer was to be made the word 'transfer' had been mentioned and form 'A' appended to rules was also titled as Application for Transfer of Nazul Land'. Actual alleged allotment order was also not produced inspite of direction of the Court by the Government, presumption can be raised that land was transferred to the petitioner and it was not a mere allotment of land. 70 Withholding best evidence available to a party and relying upon the abstract doctrine of onus of proof may result in drawing adverse inference against that party. 71 Whether or not an adverse inference from the non-production of the best evidence by a person on whom the burden of proving a fact lies, should be drawn, is not an inflexible rule but is dependent upon the circumstances of each individual case. 72 The court may draw an adverse inference from the failure of a party to produce the best evidence in its possession to prove a fact when the initial burden in regard to the proof of which has been discharged by the other party. 73 Where the Collector or the State Govt. failed to produce affidavits or any material record showing requirement of the land for public purpose despite directions of the Court, it was held that an adverse inference of non-application of mind on the part of the authorities while requisitioning the land, could be drawn. 74 In an accidental claim, the insurer pleaded that the driver who was driving the offending vehicle was not having a valid licence. The insured took the defence that he himself was driving the vehicle at the time of accident. However, when it was found that he himself did not have a valid driving licence at the relevant day, he changed his version saying that the driver was driving the vehicle and the said driver also was found to have no valid licence. It was held that the onus of proof on the insurer was discharged by the insured himself. An adverse inference was held to be rightly drawn against the insured and the insurer was not liable for compensation. 75 Where in a motor accident the insurer sought to avoid liability on the ground that the insured was a minor which fact was not allegedly suppressed from the insurer when the policy was issued and the insurer accepted the premium, adverse inference would be drawn against the insurer for non-production of the form of proposal of the policy 76 but where the defendant made no claim that any lease deed had been executed, no adverse inference could be drawn against the plaintiff claiming

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adverse possession for non-production of non-existing lease deed. 77 In a case of murder, where husband has been alleged to have killed his wife in a room of a hotel at their honeymoon night, for not informing the disappearance of his deceased wife for one and a half days to the hotel staff, police or parents of the deceased wife, it was held that an adverse inference should be drawn against the accused husband. 78 The information given by the wife of the deceased at 9 a.m. at the scene of occurrence that took place at 5 p.m. on the previous day, was placed on record as FIR. However, in the Court she deposed that after the occurrence she had informed about it to the village chowkidar and alongwith him she went to the police station where the police recorded her statement at 4 a.m. which was not produced on record by the prosecution rather her subsequent statement at 9 a.m. was recorded as an FIR which could not be said to be an FIR. The Court held that adverse inference could be drawn against the prosecution. 79 The parties to a suit should bring before the court their best evidence, and when it is not produced the court is justified in concluding that it would, if brought into court, 80 not support the case of the party omitting to produce it. Where a person is charged under the provisions of Food Adulteration Act, no adverse inference can be drawn against the accused for refusing to produce the bottle containing the sample given to him. 81 On the refusal of the opposite party to give his blood sample for conducting DNA Test, an adverse inference can be drawn against the opposite party under Sections 114 of Indian Evidence Act. 82 Since admitted signatures of the plaintiff were available on record but the defendant failed to ask for sending those admitted signatures for comparison with the disputed signature to an expert, on refusal by the plaintiff to give specimen, no adverse inference could have been drawn against the plaintiff on his such refusal. 83 In an admission test to medical colleges, a candidate was given a wrong type of answer-book which was replaced by a correct one after sometime. The candidate could attempt only 170 questions out of 200 and secured 94.555% marks and prayed that her answer-book should be assessed on the basis of only 170 questions. The examination authorities alleged that right type of answer-book was supplied to her without any loss of time. The candidate requested that her first answer book should be produced to assess the loss of time which the authorities failed to do. An adverse inference was drawn against them that if the same was produced, that would have substantiated her version. 84 Where surveillance and domiciliary visits by the police under the Police Regulations has to be discontinued unless some special reason is recorded by the S.P. but the same continued for twelve years without recording reasons and no counter-affidavit was filed by the police authorities, presumption could be drawn in favour of the petitioners and against the police authorities that there was nothing before the police to justify the surveillance. 85 Where the accused failed to get his injuries sustained in the incident examined for three days and the prosecution failed to produce injury report of the accused, it was held that inference that the injuries of the accused were manufactured, could not be reached. 86 In a situation where the material produced by the prosecution was itself sufficient to prove the guilt of the accused, Section 114(g) is of no assistance to him. 87 Adverse inference can be drawn from the nonproduction of the F.I.R. and the general diary by the police. 88 The withholding of the report of the fingerprint expert, if any, would definitely cast a doubt on the prosecution version and presumption of such report being against the prosecution be drawn. In the instant case there existed no such report. 89 But the Apex Court has held that production of daily diary of the police station is not a matter of course in every prosecution case, hence no adverse inference can be drawn on its non-production. 90 In a case involving terrorist attack on Parliament, sanction was sought for the interception of a particular phone number but the investigating agency adduced no evidence regarding the details of the investigation of calls made or received from that number; neither any question was put to the witnesses on this point. The Supreme Court observed that that did not cast a cloud on the prosecution case built upon the basis of the call records pertaining to the phones used by the accused. It was held that no adverse inference could be drawn from the fact that the details of calls of that particular phone number were not given. 91 A Court of Law even in a case where provisions of the Indian Evidence Act apply, may presume or may not presume that, if a party despite possession of the best evidence had not produced the same, it would have gone against his contentions. The matter, however, would be different where despite

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direction by a Court the evidence is withheld. Presumption as to adverse inference for non-production of evidence is always optional and one of the factors which is required to be taken into consideration in the background of facts involved in thelis . The presumption, thus, is not obligatory because notwithstanding the intentional non-production, other circumstances may exist upon which such intentional non-production may be found to be justifiable on some reasonable grounds. 92 Where the workman had not called for his records of attendance from the management but the management itself had produced the attendance records for part of the relevant period, its omission to produce the records for the remaining period would not lead to an adverse inference against the management. 93 Where no application to produce the case diary and the general diary was filed by the accused and hence no order to that effect was passed by the Court, no adverse inference could be drawn against the prosecution for their nonproduction. 94 Where the prosecution witness had specifically deposed that the bus tickets, which he had purchased for himself and others for travelling in the bus, were lost when he was being chased by the accused persons, the Supreme Court observed that the High Court was not justified in drawing an adverse inference against the prosecution for its non-production. 95 Where an employee unauthorisedly absented himself and suddenly appeared after 20 years demanding that he should be taken back and approached the court, the department naturally would not and might not have any record relating to him at that distance of time. It was held that, in such cases, when the employer/department fails to produce the records of enquiry and the order of dismissal/removal, the court cannot draw an adverse inference against the employer. 96 Where the High Court directed the government to place on record the copy of the note put up for release of a certain property and the decision taken thereon by the Cabinet, but the government failed to do so claiming privilege, it was held that it showed its mala fide intention. 97 A workman claimed to have worked for ten years with the employer but neither produced any document nor examined any witness to prove the same, resulting in his failure to discharge his burden. The employer did not produce the records for that period due to which an adverse inference was drawn against it and he was reinstated. The Supreme Court held that the adverse inference was wrongly drawn as the scope of enquiry under the Labour Court was confined only to twelve months. 1 In a case of alleged illegal termination of service of an employee, the employer educational institution failed to produce the muster roll and the employee contended that an adverse inference could be drawn against the employer. The Supreme Court observed that the muster roll is not the only basis to establish the employment of an employee with the employer. The employer had produced other reliable documents on the basis of which the employer's contention must have been accepted. Hence, no adverse inference could be drawn against it. 2 In a case involving disqualification on the ground of defection under Schedule X of the Constitution, the Members of Parliament concerned alleged that the Speaker had made a telephone call to them asking them not to vote in the impending Rajya Sabha election which was not rebutted by the Speaker. Hence, the M.P.s/petitioners contended that adverse inference should be drawn against the Speaker and the impugned orders of the Speaker disqualifying them be set aside on the ground of mala fides of the Speaker. The Supreme Court observed that the question of drawing adverse inference would depend upon the satisfaction of the Court, having regard to facts and circumstances of the case. Ordinarily, the adverse inference can be drawn in respect of allegations not traversed, but there is no general rule that adverse inference must always he drawn, whatever the facts and circumstances may be. In the instant case, the petitioners had been avoiding to appear before the Speaker; the proceedings were being delayed and long adjournments were sought. Hence, the Apex Court declined to draw adverse inference and accept the plea of mala fides . 3 Where the authorities failed to produce the jail records despite demand by the accused, the Supreme Court observed that there was no reason for the trial court to draw an adverse inference that the records had been destroyed. No such inference could be drawn in law either in terms of Section 114 of the Evidence Act or any other law. No evidence was brought on record to show that the documents had in fact been destroyed. At least the jail authorities should have produced the destruction register. The Court itself should have called upon the authorities to produce the document. The Court held that the resumption raised by the trial Court in that behalf was wholly misconceived. 4 Withholding as distinguished from failure:

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An adverse inference can be drawn against a party if there is withholding of evidence and not merely on account of the failure of the party to obtain evidence. 5 Where two eye-witnesses were named in the FIR in a murder case and during investigation, it came to the notice of the Investigating Officer that apart from those two named eye-witnesses two other witnesses had also witnessed the occurrence but he failed to record their statements and to show the places in site plan prepared by him wherefrom they witnessed the occurrence and to file the same with the charge-sheet, it was held that an adverse inference would be drawn against the prosecution. 6 In a case, murder was alleged to have been committed by the husband of his wife at their honeymoon night in the room of a hotel, where the accused failed to inform the hotel staff, the police and the parents of the deceased wife for one and a half days about disappearance of his wife from the hotel and the dead body of the wife in parts was recovered thereafter from different places, it was held that an adverse presumption should be drawn against the accused for his such failure to inform. 7 On the failure of the accused to give reply of legal notice under Section 138 of the Negotiable Instrument Act (26 of 1881) sent by the complainant it would be presumed that the accused had borrowed the money from the complainant and the cheque was issued by the accused towards payment of the legally enforceable debt. 8 It is an established principle of law that it is for the suitor to decide which would be the best evidence to prove his case. For failure to produce a piece of evidence an adverse inference should not be drawn against the party who has chosen not to file it, unless the other side had called for that evidence. 9 Also where failure to produce substantive piece of evidence has not gone to the root of the prosecution case, no adverse inference can be drawn. 10 Failure to examine a material witness by the defence must lead to the inference that the witness was deliberately withheld as he was not likely to support the defence. 11 Where the prosecution in a prohibition case failed to take samples and have them sent to chemical Analyst for his opinion, the presumption is that the prosecution withheld evidence as it was not likely to support their case. 12 No adverse inference can be drawn against a party from the circumstances that it has not examined all the witnesses mentioned by it. 13 56 Srichand K. Khetwani v. State of Maharashtra, AIR 1967 SC 450 : 1967 CrLJ 1536 : In re : Baswaraja Swami, AIR 1967 Mys 210; Kusum Anand v. Mohinder Kaur, AIR 1999 Del 221 (para 15); Rakesh Kumar v. State, 2001 CrLJ 2978 (paras 9 and 10) (Del); Punit Rai v. Dinesh Choudhary, (2003) 8 SCC 204 (para 7) : AIR 2003 SC 4355; Sushil Kumar v. Rakesh Kumar, (2003) 8 SCC 673 : AIR 2004 SC 230, relying on National Insurance Co. Ltd. v. Jugal Kishore, (1988) 1 SCC 626 at p. 632 (para 10). 57 Sharda v. Dharmpal, (2003) 4 SCC 493 (para 79) : AIR 2003 SC 3450. See also Bharat Heavy Electricals Ltd. v. State of U.P., (2003) 6 SCC 528 (para 13) : AIR 2003 SC 3024. 58 Gopal Krishna v. Mohamed Haji, (1969) 71 Bom LR 48, SC; Ramdas Oil Mills v. Union of India, AIR 1977 SC 638, non production of accounts. 59 Patel Naranbhai v. Dhulabhai, AIR 1992 SC 2009. See also Bhim Singh v. State of Haryana, (2003) 10 SCC 529 (para 9) : AIR 2003 SC 4382; Kuldeep Rai Chadha v. Karamchand Thapar, AIR 2005 NOC 621(MP) . 60 Deputy Managing Director, CESC Ltd. v. Naba Kumar Mondal, AIR 2000 Cal 97 (para 14). 61 Ramchendrudu v. D. Janakiramanna, AIR 1920 PC 84. 62 Surendranagar District Panchayat v. Dahyabhai Amarsinh, (2005) 8 SCC 750, 759 (para 18). 63 Devidas v. Shrishailappa, AIR 1961 SC 1277; Ramayya v. Laxminarayana, AIR 1934 PC 84; Mahabir Singh v. Rohini, AIR 1933 PC 87; Chandra Deo v. Sheo Das, AIR 1977 All 319. 64 Ramrati Kuer v. Dwarika Prasad Singh, AIR 1967 SC 1134. 65 Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299; Harnath Malhotra v. Dhanoo Devi Agarwala, AIR 1975 Cal 98. 66 Ranganathan v. State, 1996 CrLJ 2041 (para 45) (Mad).

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67 Sheikh Mehboob v. State of Maharashtra, (2005) 10 SCC 387, 389 (paras 5-6) : AIR 2005 SC 1805 : 2005 CrLJ 2136. 68 Mohan Benefit (P) Ltd. v. Kachraji Raymalji, (1997) 9 SCC 103 : 1997 SCC 610(Cri) . 69 Sawal Das v. Bihar, AIR 1974 SC 2276 : (1975) 3 SCC 156. 70 Scheduled Castes Co-op. Society v. State of Punjab, AIR 2005 (P&H) 100, 110 paras 21 & 22. 71 Habeeb Khan v. Valasula Devi, AIR 1997 AP 53 (paras 30-32). 72 Krishna Kumar Sinha v. Kayastha Pathashala (Prayag), Allahabad, AIR 1966 all 570. 73 Brijlal Suri v. State of Uttar Pradesh, AIR 1954 All 393; Vimal v. Bhaguji, AIR 1995 SC 1836 (paras 18 and 20); Kailash Talkies v. State, AIR 1996 Raj 30 (paras 25 and 26). 74 W. Bengal Housing Board v. Banwarlal Mundhra, 1996 AIHC 5560 (para 16) (Cal), following H.D. Vora v. State of Maharashtra, AIR 1984 SC 866. See also Ghulam Muhammed Wani v. State of J.&K., 1997 AIHC 1227(J&K) ; Deokinandan Singh v. State of Bihar, 1997 AIHC 1431 (para 9) (Pat). 75 Prabha Shanker Shukla v. Shri Kant Tiwari, AIR 2006 (NOC) 1115(All) : 2006 (4) ALJ 334(DB), following AIR 1989 SC 2002. 76 National Insurance Co. Ltd. v. Kusum Devi Mishra, 1998 AIHC 3751 (para 9) (MP). See also United India Insurance Co. Ltd. v. Shri Amitabha Dey, AIR 1994 NOC 54(Gau) ; National Insurance Co. v. Amar Chand, AIR 2006 HP 49, 56 (para 35); Bangalore Development Authority v. Syndicate Bank, (2007) 6 SCC 711, 721 (para 15); Sangli Bank Ltd. v. Bhimappa, 2007 AIHC 224, 230 (para 19) (Kant); Mangamma v. State of A.P., 2008 CrLJ 1365, 1367 (para 14) (SC); Kadiyamsetty Venkat Rao v. State of A.P., 2008 CrLJ 514(NOC) (AP) . 77 S. Srinivasa Iyer v. Dakshinamurthi, AIR 2000 Mad 388 (para 6). 78 Mahender Singh Dhaiya v. State (C.B.I), 2003 CrLJ 1908, 1919 (para 25) (Del) : 2003 (102) Del LT 592 : 2003 (66) Del RJ 616. See also Raj Kumar Prasad Tamarkar v. State of Bihar, (2007) 10 SCC 433, 443 (para 38). 79 Mahabir Sahu v. State of Bihar (now Jharkhand), 2007 CrLJ 653, 655 (para 10) (Jhar). 80 State of Andhra v. Gathala Abhishekam, AIR 1964 AP 450; P.L.A. Palanippa Chettiar v. A and F Harvey Ltd., Madura, AIR 1953 Trav Co. 481; Nicholas Schindas v. Nemazi, AIR 1952 Cal 859; Union of India v. Sri Rajendra Mills, AIR 1971 Mad 53; Shovana Mukherjee v. River Steam Navigation Co. Ltd., (1977) 1 Cal 9; Bharat Bhushan v. Ved Prakash, AIR 1978 Del 199; Rameshchandra Tukaram Talekar v. State of Gujarat, 1980 Guj 1; Harish Chandra Ray v. K.C. Singh, AIR 1977 Ori 76; Indian Trade and General Insurance Co. Ltd. v. Union of India, AIR 1957 Cal 190; Rangabati v. United Bank of India Ltd., AIR 1961 Pat 158; Devji Shivji v. Mohanlal Odhabji Thacker, AIR 1960 Pat 223; Kanhailal v. Kantilal, AIR 1968 Raj 278. 81 State of Rajasthan v. Gopal Krishan, AIR 1984 CrLJ 311(Raj) . 82 Thogorani v. State of Orissa, 2004 CrLJ 4003, 4007 (para 18) : 2004 (22) All Ind Cas 653 : 2004 (4) Crimes 76 : 2004 (29) Ori CR 29 : 2004 (2) Ori LR 183. The Court relied on Dharam Pal v. Shatampal, (2003) 4 SCC 493 : AIR 2003 SC 3450. 83 Kalyan Singh v. Ranjot Singh, AIR 2002 HP 180, 184. 84 Tulasa Priya v. A.P. State Council of Higher Education, (1998) 6 SCC 284. 85 Rajesh Kumar v. State of U.P., 1999 CrLJ 2388 (paras 9 and 9.1) (All). 86 Shivaji Ganu Naik v. State of Maharashtra, 1999 CrLJ 471, at p. 475 (Bom). 87 State of Maharashtra v. Jethmal Himatmal Jain, 1994 CrLJ 2613 (para 26) (Bom). Dying declaration not produced, Sirumalla Bhumesh v. State of A.P., 2008 CrLJ 223, 227 (paras 18 and 19) (AP). 88 Sevi v. State of Tamil Nadu, AIR 1981 SC 1230. 89 Rajesh v. State of Gujarat, (2002) 4 SCC 426 (para 14) : AIR 2002 SC 1412 : 2002 CrLJ 1821. 90 Kalpnath Rai v. State, (1997) 8 SCC 732. 91 State (NCT of Delhi) v. Navjot Sandhu, 2005 CrLJ 3950, 4028 (para 18) : (2005) 11 SCC 600.

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92 Municipal Corporation, Faridabad v. Siri Niwas, AIR 2004 SC 4681 (para 15) : (2004) 8 SCC 195. See also Manager, Reserve Bank of India v. S. Mani, (2005) 5 SCC 100, 112 (paras 24 and 25) : AIR 2005 SC 2179. 93 Municipal Council, Sujanpur v. Surinder Kumar, (2006) 5 SCC 173, 176-77 (paras 6 and 14) : (2006) 11 JT 226. 94 Ashok Kumar v. State of T.N., (2006) 10 SCC 157, 162-63 (para 12) : AIR 2006 SC 2419. 95 Kamma Otukunta Ram Naidu v. Chereddy Fedda Subba Reddy, (2003) 11 SCC 293 (para 11) : AIR 2003 SC 3342 : 2003 CrLJ 4967. See also M. Sivaprakasa Mudaliar v. Padmavathy, AIR 2007 (NOC) 2119(Mad) . 96 C.Jacob v. Director of Geology and Mining, (2008) 10 SCC 115, 123 (para 13). 97 Union of India v. Raja Mohammed Amir Mohammed Khan, (2005) 8 SCC 696, 707 (para 28) : AIR 2005 SC 4383. 1 Surendra Nagar District Panchayat v. Dahyabhai Amarsingh, (2005) 8 SCC 750, 759 (para 18) : AIR 2006 SC 110. See also Sabbu Yella Anjaneyulu v. Uppari Lakshmanna, AIR 2006 (NOC) 660(AP) ; Anil Lakra v. State of W.B., 2006 CrLJ 4467, 4475 (para 39) (Cal); Sriram Industrial Enterprises Ltd. v. Mahak Singh, (2007) 4 SCC 94, 105 (para 34) : AIR 2007 SC 1370. 2 Director Vocational Education & Training v. Nashim Shaikh Chand, (2006) 10 SCC 301, 304 (paras 8 and 10) : (2007) 1 LLJ 822. 3 Jagjit Singh v. State of Haryana, (2006) 11 SCC 1, 40 (para 83) : AIR 2007 SC 590. 4 Aloke Nath Dutta v. State of W.B., (2007) 12 SCC 230, 273-74 (paras 123 and 124) : (2006) 13 Scale 467. 5 Srichand v. State of Maharashtra, AIR 1967 SC 450; C.M.P. Co-op. Societies v. State of M.P., AIR 1967 SC 1815. See also Mahabir Singh v. Rohini Ramanadhwaj Prasad Singh, (1933) 35 Bom LR 500 PC : AIR 1933 PC 87; Himmat Mal v. Shah Magaji Khubaji, (1953) 3 Raj 815; Commissioner of Collegiate Education v. M. Madhusudhan Reddy, (2005) 11 SCC 180 (para 3). 6 Pratap Singh v. State of M.P., 2006 CrLJ 310, 313 (para 19) (SC) : AIR 2006 SC 514. 7 Mahender Singh Dhaiya v. State (C.B.I.), 2003 CrLJ 1908, 1920 (para 25) (Del) : 2003 (102) Del LT 592 : 2003 (66) Del RJ 616. 8 Gorantla Venkateswara Rao v. Kolla Veera Raghava Rao, 2006 CrLJ 1, 9 (para 40) (AP). 9 Bilas Kunwar v. Ranjit Singh, AIR 1915 PC 96; Bihar Agents Ltd. v. Union of India, AIR 1960 Pat 111. 10 Munshi Prasad v. State of Bihar, 2001 CrLJ 4708 (para 6) (SC) : AIR 2001 SC 3031. 11 Doonath Dudhnath Mishra Amravati v. State of Maharashtra, AIR 1967 Bom 1 : 1967 CrLJ 21(Bom) . 12 Hashomal Mulchand v. J.S. Bajaj, ILR (1966) Bom 892. 13 Kulsumun-nisa v. Ahmadi Begam, AIR 1972 All 219.

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Ratanlal & Dhirajlal: Law of Evidence, Updated 23rd Edition/THE INDIAN EVIDENCE ACT (ACT 1 OF 1872)/PART III PRODUCTION AND EFFECT OF EVIDENCE/CHAPTER VII THE BURDEN OF PROOF/S. 114. 3 of 4

43. WITHHOLDING MATERIAL WITNESSES A party's deliberate avoidance or feeling shy of giving evidence in the witness box, raises a presumption against his contention and the court would be justified in drawing an adverse inference against him. 14 Where it was sought that certain sale-deeds be declared to have been obtained by exercising undue influence and coercion on the executant and the plaintiff alleged that one of the purchasers had no means to pay the consideration, the said purchaser was not examined to seek explanation adverse inference should be drawn against the said purchaser that had she been examined, it would have gone against her. 15 Adverse inference may be drawn against the party under Section 114 of the Evidence Act, for failure on its part to call material witnesses. 16 Where a party fails to call as his witness the principal person involved in the transaction who is in a position to give a firsthand account of the matters of controversy and throw light on them and who can rebutt all allegations of the other side, it is legitimate to draw adverse inference against the party who was not produced such principal witness. 17 Where besides other evidence, there was on record a receipt book of subscription from public for the construction of the temple in question and the person concerned with it who was one of the applicants claimed that the temple was a private one, avoided to give evidence, an adverse inference was drawn against him to hold that the temple was private. 18 In an election petition, it was alleged that voters were threatened with divine displeasure in a speech at a certain meeting. The petitioner failed to produce the material witness and the notes made by him at the meeting. It was held that adverse inference may be drawn the petitioner. 19 During an election a leaflet against a candidate was printed by a witness who stated that he received a letter from the returned candidate 'T' through one 'R'. It was held that from the omission by 'T' to examine 'R' who was his election agent to contradict the witness, it could be presumed that 'R' was not prepared to contradict the statement of the witness. 20 In an election petition it was alleged that the agent of the returned candidate distributed hand bills containing serious allegations against the petitioner. It was held presumption can be drawn against the petitioner when he failed to produce the original matter or the printer. 21 In a suit for recovering damages against the owners of a vessel, there was allegation by the plaintiff that the owners of the vessel and the charterers of another vessel were one and the same entity and the vessel was owned by named individual. The defendant owners produced no document to disclose shareholding pattern of either the owner or the shareholding of the majority shareholder which was considered to be within the special knowledge of the owners and they were under obligation under Section 106 to disclose the name of the majority shareholder which they failed to do. The Court would be constrained to assume adversely to the interest of the owners under Section 114(g). 22 Where there was a collision between a bus and a car and it was contended by the bus owner that the car driver was rash and negligent, it was held that from the non-examination of bus driver without any explanation, adverse inference can be drawn against the bus owner. 23 In a claim for damages under the Motor Vehicles Act for causing injuries to the claimant on account of negligence in driving, the best evidence would be that of the driver. Non-examination of the driver would lead to a presumption that the claimants sustained injuries on account of negligent driving. 24 The presumption laid down in this illustration was held to apply to the case of counsel engaged in a suit who should not have been, under the circumstances, the counsel but should have been called as a witness. 25 No adverse presumption need be drawn against the defendant who fails to depose in a suit filed against him when there is other evidence both documentary and oral. 26 Where the plaintiffs failed to depose that they were in possession of the land in question till the defendant allegedly dispossessed them, non-examination of the defendant would neither be fatal nor adverse inference could be drawn against the defendant. 27 The question of drawing adverse inference would arise only when there is no other evidence on record on the point in issue. 28 Where the evidence adduced by the prosecution was adequate to prove the charge, non-examination of another person who was on the scene of occurrence would not make such evidence unreliable. 29 In a partition suit by plaintiff claiming to be an adopted son, non-production of natural father as a witness, to prove adoption, an adverse inference

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under Section 114 illustration (g) of this Act cannot be drawn against him. 30 Where the complainant company failed to cite a vital witness in the list of witnesses, it was not held to be not fatal to it as it could file an additional list of witnesses or invoke the provisions of Section 311 , CrPC to summon a witness. 31 In proceedings for eviction of tenant, an adverse inference against the landlord for not examining himself, is not justified when his attorney knowing all the facts of the case deposed. 32 In another eviction proceeding, the tenanted premises was required bona fide by the plaintiff for her son for the purpose of establishing a modern hospital and in support of her claim she produced evidence and withheld no evidence. She could not depose on account of her old age and ill health. The defendant had full opportunity to adduce all documentary evidence to refute the plaintiff's claim and extensively cross-examined all her witnesses in respect of her bona fide requirement. It was held that no adverse inference could be drawn against her for non-examination of herself and the same is not fatal. 33 Where there were no inherent improbabilities in the evidence of witness examined by the plaintiff, nonexamination of the plaintiff may not lead to any adverse inference against him. 34 Adverse inference under Section 114 cannot be drawn for mere non-examination of the plaintiff when other material witnesses are produced. 35 Non-examination of a certain witness by one of the contesting parties does not amount to withholding of evidence, entitling the Court to draw an adverse inference against that party. The complainant party can examine such witness. 36 In a case filed by the husband against the wife for judicial separation of the ground of desertion by the wife, the case of the wife was that she left the house with the consent or knowledge of her husband's parents. It was held when the court rejects the evidence of the respondent in support of her plea, it is not incumbent on the petitioner to adduce negative evidence of his mother to deny the plea of the respondent rejected by the court. No adverse presumption may be drawn against the petitioner. 37 Where, in an election petition, the successful candidate does not examine a particular witness to controvert facts alleged by petitioners witnesses in their evidence, the court cannot draw in adverse inference against the successful candidate since no onus is cast upon him to prove the particular facts. 38 Where in an application for staying the suit, the defendant expressed in the application his willingness and readiness to get the arbitration agreement enforced but did not enter the witness-box, no adverse inference could be drawn against him. 39 Where one of the three attesting witnesses of a Will was examined and there was no infirmity in his testimony, no adverse inference could be drawn against the defendants for not examining the other two witnesses. 40 Non-examination of any independent and material witness by the prosecution, would by itself not give rise to adverse inference against the prosecution unless the evidence of the alleged eye-witnesses raises a serious doubt about their presence of the time of occurrence. 41 Where it was alleged that the victim was raped when her husband was sleeping near her, failure to examine the husband is fatal to the prosecution and an adverse inference could be drawn 42 but where there was no evidence to show that anyone of the nearby house had witnessed the incident, no adverse inference could be drawn for non-examination of any such witness. 43 The correct law as to the proper effect of the non-production of a witness cannot be decided in the abstract. It is a question of fact to be determined on a consideration of the circumstances of the individual case, in which inter alia the following factors should receive due consideration: 3i)   Whether the witness is in a position to give relevant and material evidence. 2ii)   Whether the witness is within easy reach of the prosecution or not, or whether there are circumstances justifying the withholding of a witness viz., the witness is likely to be hostile to the prosecution. 2iii)   The nature and intensity of the controversy raised by the defence on a particular issue on which the witness is expected to give evidence and. 1iv)   Persuasiveness of the evidence which is on the record. 44 See also under 'Non-examination of a witness' in Section 134. 14 Abdul Ghafoor v. Junj Beharilal, AIR 1957 All 346; Subramanya Sastry v. Lakshminarasmma, AIR 1958 AP 22; Pranballav Saha v. Tulubala Dassi, AIR 1958 Cal 718; Gopal Das v. Ghisalal, AIR 1957 Raj 264; Ramchandiram Mirchandani v. India United Mills Ltd., AIR 1962 Bom 92; Abdul Kareem v. Babulal, AIR 1953 Bhopal 26; Ghaki Mal Hukum Chand v. Punjab National Bank Ltd., AIR 1961 Punj 91; Bhagwan Dass v. Bhishan Chand, AIR 1974 Punj 7;

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Ranji Jankiji v. Manni Baba, AIR 1978 Pat 48; Ganda Mal v. Bhulloo Ram, AIR 1951 J&K 5; G.K. Carpenter v. N.N. Raivat, 1920 MP 225; Karnal Distillery Co. v. Ladli Parshad, AIR 1958 Punj 190; Jurmati Bewa v. Anwar Rasul, AIR 1973 Gau 90; Iswar Bhai C. Patel v. Harihar Behera, AIR 1999 SC 1341 (para 29); plaintiff's husband, an attesting witness not coming to witness-box in spite of warrant issued by Court though there was no strained relation with wife, adverse inference drawn against plaintiff-wife, Shayama Devi v. Premvati, AIR 1996 All 57 (para 24); Vidhyadhar v. Mankikrao, AIR 1999 SC 1441 (paras 15 and 16); neither filing written statement nor entering witness box, Narayan Venkatesh Pandith v. Syed Nuroddin Khadri, 1999 AIHC 1443 (para 12) (Kant); Lateefa Begum v. B.G. Kirloskar, (2005) 11 SCC 515, 516 (para 6); Bank of India v. S.K. Mukherjee, AIR 2006 MP 58, 61 (para 13); Ser Singh v. Kripal Singh, AIR 2006 MP 199, 201 (paras 7 and 8) : 2007 AIHC 69(NOC) (MP) ; Martand Pandharinath Chaudhuri v. Radhabai Krishnarao Deshmukh, AIR 1931 Bom 97; Gulla Kharagjit Carpenter v. Narsingh Nandkishore Rawat, AIR 1970 MP 225; Moolchand v. Radha Sharan, AIR 2006 (NOC) 1356(MP) ; Binapani Paul v. Pratima Ghosh, (2007) 6 SCC 100, 115 (para 36) : AIR 2008 SC 543; Tulsi v. Chandrika Prasad, (2006) 8 SCC 322 : AIR 2006 SC 3359; Sardar Gurbakhsh Singh v. Gurdial Singh, AIR 1927 PC 230 : 29 Bom LR 1392; Adivekka v. Hanamavva Kom Venkatesh, (2007) 7 SCC 91, 97 (para 21) : AIR 2007 SC 2025; Haryana State Industrial Development Corporation v. Cork Manufacturing Co., (2007) 8 SCC 120, 139 (para 52) : AIR 2008 SC 56; Kamakshi Builders v. Ambedkar Educational Society, (2007) 12 SCC 27, 37 (para 27) : AIR 2007 SC 2191, approving Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh, AIR 1931 Bom 97 and Ramanathapuram Market Committee v. East India Corporation Ltd., AIR 1976 Mad 323; Sita Devi v. Mohinder Singh, AIR 2008 (NOC) 552(HP) ; Krishna Dey v. National Insurance Company Ltd., AIR 2008 (NOC) 2190(Cal) ; Yashodhara B. Shetty v. United India Insurance Co. Ltd., 2008 AIHC 528, 531-32 (para 15) (Kant); Prabhakaran v. Ranganathan, (2009) 1 MLJ 67, 72-73 (para 19); Smita Halarnkar v. Mahendra Halarnkar, AIR 2009 (NOC) 207(Bom) : 2008 (5) AIR Bom R 828; Vimal Chand Ghevar Chand Jain v. Ramakant Eknath Jadoo, (2009) 5 SCC 713, 726 (para 22). 15 Kartick Prasad Gorai v. Neami Prasad Gorai, AIR 1998 Cal 278 (para 24); Ranjana Nagpal v. Devi Ram, AIR 2002 HP 166, 175; Onkar Chand v. Jagdamba Devi, 2002 AIHC 3501, 3503 (para 20) (HP); K.A. Louiz v. A.A. Augustine, AIR 2005 Ker 1, 3 (para 9). 16 Manaklal v. Dr. Prem Chand Singhvi, AIR 1957 SC 425; Irudayam Ammal v. Salayath Mary, AIR 1973 Mad 421; Pritam Das v. Akbari, AIR 1973 MP 224; Kul Bahadur Rai v. Dawa Tshering Lepcha, AIR 1986 Sikkim 18; Ambaram Haloi v. State, AIR 1952 Assam 129 : 1952 CrLJ 1178; Manu Biswal v. Lata Biswalani, AIR 1965 Ori 13; Pisipati Punnakothia v. Kallapalli Kolikamba, AIR 1967 AP 83; Ram Gopal v. Ram Kunwari, (1965) 15 Raj 529; Sri Kishan Rathi v. Mondal Bros. and Company, 1969 Cal 75; Maya Mukherjee v. Orissa Co-operative Insurance Society, AIR 1976 Ori 224; Sindhu Mohanty v. Gourkrushna Mohanty, AIR 1976 Ori 213; Sunder Lal v. Dulari, AIR 1979 Punj 154; Purabi Banerjee v. Basudeb Mukherjee, AIR 1969 Cal 293; P. Venkatamma v . Dontham Sulochana , AIR 2006 AP 92, 95 (para 20); Ritesh Chakarvarti v. State of M.P., (2006) 12 SCC 321, 328 (para 27); P. Venkatamma v. Dontham Sulochana, AIR 2006 AP 92, 95-96 (para 20); Bandhu Mahto v. Bhukhli Mahatain, (2007) 10 SCC 564, 570 (para 15) : (2007) 8 JT 446; Muddasani Sarojana v. Muddasani Venkat Narsaiah, AIR 2007 AP 50, 53 (para 18); Irul v. State, 2007 CrLJ 1139, 1143 (para 15) (Mad); Anonda Chandra Saikia v. Madhu Ram Saikia, AIR 2008 (NOC) 1048(Gau) ; Balvinder Singh v. Basaikhi Ram Saina Ram, AIR 2008 (NOC) 1377(P&H) ; Kaliyamurthy v. State, 2008 CrLJ 195(NOC) (Mad) ; Bogi Bhadraiah v. State of A.P., 2008 CrLJ 757(NOC) (AP) . 17 Seth Maganmal v. Darbarilal, AIR 1928 PC 39; Thulia Kali v. State of T.N., AIR 1973 SC 501; Virendra v. Jagjiwan, AIR 1974 SC 1957; Raghunath Paramanik v. State, 1958 CrLJ 651 : AIR 1958 Ori 92; E. Lakshmamma v. V. Chinna Malla Reddy, AIR 1985 SC 658 (Minority of executant--Father and brother not examined regarding date of birth. 18 Marua Dei (Smt.) v. Muralidhar Nanda, (1999) 1 SCC 377. 19 Virendra Kumar Saklecha v. Jagijiwan, AIR 1974 SC 1957. 20 Virendra Singh v. Vimal Kumar, AIR 1976 SC 2169. 21 Younus Kunju v. R.S. Unni, AIR 1984 SC 960. 22 Alexandros Dryon S.A. v. Owners and Parties, M.V. PRAPTI, AIR 1998 Cal 142 (para 12). 23 Hira Devi v. Bhava Kanti, AIR 1977 Gau 31(FB) . 24 National Insurance Co. Ltd. v. Durdadadshya Kumar Samal, AIR 1988 Ori 229. See also Karnataka State Road Transport Corporation v. K. Chandrasekhara Raju, 1998 AIHC 4042 (para 8) (Kant); Kartar Kour v. Dayal Singh, 1999 AIHC 3314 (para 16) (MP). 25 Weston v. Peary Mohan Dass, (1912) 40 Cal 898. 26 Kansi Ram v. Jai Ram, AIR 1956 HP 4. 27 Nirashi Bai v. Ramlal, AIR 2006 Chh 73, 76 (para 10). 28 Pandurang Jivaji Apti v. Ramachandra Gangadhar, AIR 1981 SC 2235.

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29 Surendra Narain v. State of U.P., AIR 1998 SC 192 : 1998 CrLJ 359. 30 Bami Bewa v. Krushna Chandra Swain, AIR 2004 Ori 14, 18 para 14 : 2004 (1) CLR 105 : 2004 (1) Civil Court C 543. 31 C.M. Ibrahim v. Tata Sons Ltd., Bangalore, 2009 CrLJ 228, 231-32 (para 15). 32 Padma Rama Moorthy v. M. Raghu, ILR 1973 Kant 1100. 33 Sujata Sarkar v. Amit Kumar Duttani, AIR 2009 (NOC) 1590(MP) . 34 Board of Religious Trust v. Acharya Maharath Amrit Das, AIR 1974 Pat 95. 35 Bijoy Kumar Karnani v. Lahori Ram Prasher, AIR 1973 Cal 465. See also T.M. Musariparabil v. M.V. Narasimha Rao, 1996 AIHC 732 (para 8) (AP). 36 P. Veeraswami Naidu v. Pushpammal, AIR 1996 Mad 131 (para 12). 37 Lachman Utamchand Kirpalani v. Meena, AIR 1964 SC 40. 38 Motilal v. Chandra Pratap Tiwari, AIR 1975 SC 1178. 39 Om Prakash v. Dev Raj, AIR 1995 P&H 349 (para 13). 40 P.S. Sairam v. P.S. Rama Rao Pissey, (2004) 11 SCC 320, 328 (para 13) : AIR 2004 SC 1619. 41 Hem Raj v. State of Haryana, (2005) 10 SCC 614, 618 (paras 8-9) : AIR 2005 SC 2110 : 2005 CrLJ 2152, relying on Takhaji Hiraji v. Thakore Kubersing Chamansing, (2001) 6 SCC 145, 155 (para 19) : AIR 2001 SC 2328 : 2001 CrLJ 2602. 42 Vijayan v. State, 1993 CrLJ 2364 (para 20) (Mad). 43 Sat Pal v. State of Punjab, 1996 CrLJ 406 (para 10) (SC) : AIR 1996 SC 201. 44 State v. Abdul Aziz, (1971) 21 Raj 209.

44. MATERIAL WITNESSES (CRIMINAL) In a criminal case failure to give evidence of relevant facts leads to the presumption that evidence which could be produced and is not produced would, if produced, be unfavourable to the person who withholds it. 45 If the prosecution fails to examine material witnesses an adverse inference against the prosecution can be raised. 46 Merely because a material witness was not examined by the prosecution, a Criminal Court is not to lean to draw the adverse inference that, if he was examined, he would have given a contrary version. The illustration (g ) in Section 114 is only a permissible inference and not a necessary inference. Unless there are other circumstances also to facilitate the drawing of an adverse inference, it should not be a mechanical process to draw the adverse inference merely on the strength of non-examination of a witness, even if it is a material witness. 47 The Supreme Court observed : "All the circumstances vouched by the eye-witnesses unerringly and irresistibly led to the conclusion that the two contusions and the head injury were received by the accused after he had stabbed the deceased; non-production of any other witness, loses its significance much less can it afford a ground for drawing an adverse inference against the prosecution". 48 Where the prosecution chose to examine two out of five eye-witnesses who were interested and inimical to the accused and were not corroborated by other independent witnesses, it was held that the evidence of the two eye-witnesses has to be rejected. 49 Failure to examine independent witnesses who were admittedly in the room next to which the accused was taken, and recovery of articles was made, makes the entire case of recovery unacceptable. 50 Where the prosecution examines only interested, though independent witnesses are available,

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adverse inference against the prosecution is justified 51 but not where the accused was suddenly apprehended from a thoroughfare without any pre-plan. 52 Where the prosecution dropped the independent witnesses after examining the injured witnesses, it could not be inferred that it was done with an oblique motive. 53 Where the statement of the independent witness recorded under Section 162,Cr.P.C. was found to be not against the prosecution, no adverse inference could be drawn by their non-examination.54 Where independent persons of the locality were not willing to tell the police that they had seen the incident, veracity of the evidence of the witnesses examined as eye-witnesses could not be doubted merely on the ground of non-examination of independent witnesses. 55 Prosecution has discretion as to what witnesses should be called. It is not necessary to call all the witnesses to spell out the same fact and the court will not interfere with that discretion unless it can be shown that prosecution is influenced by some oblique motive. 56 When the prosecution examines witnesses from a distant locality and does not examine the only witness from the same locality where the search was made by the police, an adverse inference may be made against the prosecution. 57 Where the prosecution filed along with the chalan a list of witnesses and did not examine them, it was held, that the non-production of such witnesses raised a presumption that the evidence, if given by those witnesses, would be unfavourable to the prosecution. 58 Where the question was of minority, not examining the brother and father who were the most natural witnesses of age created an adverse presumption. 59 Where the prosecution fails to produce a certain witness who was examined in the previous trial for the same offence, a presumption that he would not have supported the prosecution had he been produced, can be raised. 60 Where the charge was based on the statement given by the accused to the inspecting officer and attested by two witnesses and the prosecution failed to produce the attesting witnesses, it was held that an adverse inference could be drawn from the fact of non-production of the attesting witnesses to the statement of the accused since they were both material witnesses. 61 Though the prosecution is not bound to call all available witnesses irrespective of considerations of number or reliability, witnesses essential to the unfolding of the narrative on which the prosecution is based must be called by the prosecution, whether in the result the effect of their testimony is for or against the case for the prosecution. Where the case against the accused was that he gave orders to the police to fire and the Deputy Commissioner of Police, who had accompanied the accused and had witnessed the occurrence, was not examined by the prosecution, it was held that the failure to examine him not only led to an adverse inference against the prosecution case but also cast serious reflection on the fairness of the trial. 62 If the prosecution does not examine independent witnesses but examines only partisan and interested witnesses adverse inference may be drawn against the prosecution. 63 Non-examination of material witness to prove the defence version in a criminal case is the strongest possible circumstance to discredit the defence version. 64 Failure on the part of the prosecution to explain injuries on the person of the accused can give rise to the following presumptions: 1. that the prosecution has suppressed information as to the nature of the occurrence; 2. that the witnesses who have denied those injuries are telling lies to the court; 3. that the defence of the accused that he committed the crime in selfdefence becomes more plausible shifting the burden to the prosecution. 65 A maid-servant working in the verandah heard the cries of a married woman being pushed into the room and meeting her death there but she was not produced. This created a presumption against the prosecution. 66 Nonexamination of the doctor who conducted the autopsy in a murder case by the prosecution is a drawback for the prosecution and may be fatal. 67 In a Civil suit or a criminal case, it is not necessary that a party should examine all the possible witnesses. Where a party examines only a few witnesses and the court is inclined to draw an adverse inference from the non-examination of the remaining eye-witnesses, it is but equitable that it should be made clear to the party that other witnesses be also examined and in case of failure to do so, an adverse inference would be drawn. 68 In a matrimonial dispute both the husband and wife were doctors serving in the same hospital. The wife used abusive language against the husband and made allegations of adultery with the nursing staff against her husband. The husband did not examine any witnesses from the hospital staff to refute the allegations on account of which the High Court drew an adverse inference against the husband. The Supreme Court held that the High Court erred in doing so without discussing the sufficiency of other evidence to sustain the allegation of cruelty against the wife by the husband. 69 Where in a case of murder, according to the prosecution earlier to the commission

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of murder, while wife of the deceased had gone to answer the call of the nature, she was teased by the accused and on return when she complained of the incident to her family members including informant, the deceased went and complained about the said behaviour of the accused to his elder brother who gave him a beating, resulting in committing the instant crime, non-examination of the wife of the deceased or not furnishing any reason for not examining her would lead to an inference under Section 114(g) of the Evidence Act against the prosecution which withheld the same. 70 Where in a murder case, two eye-witnesses were named in FIR but they were not produced before the Court by the prosecution, it would be presumed that their evidence would have gone against the prosecution if they were produced. Mere statement of the other witness that these two witnesses were not prepared to depose on account of fear was found untenable as that witness was examined in the same case. 71 Non-production of a material witness would not introduce infirmity in the prosecution case where the prosecution case is based entirely on documentary evidence. 72 Non-examination of witnesses who were not eye-witnesses did not affect the prosecution case. 73 Where the prosecution did not examine the witnesses who came to the spot after the incident, it was held to be not fatal to the prosecution. 74 When some witnesses are not examined by the prosecution, a mere consideration that they might have thrown further light on the act ual happenings would not justify the conclusion that the omission to examine them was with an oblique motive and would have gone to benefit the accused. Adverse inference may not be drawn in such cases. 75 To avoid proliferation of evidence the prosecution may drop the examination of certain witnesses and no adverse inference can be drawn from this. 76 Normally all the eye witnesses have to be examined. If selection is made fairly and honestly and not with a view to suppressing inconvenient witnesses from the witness-box, no adverse inference can be drawn against the prosecution. 77 Where a reasonable explanation was given by the prosecution for not examining material witnesses and where the defence did not make an application to the trial court or the High Court but made an application for the first time before the Supreme Court during the course of arguments, it was held that no adverse presumption can be drawn against the prosecution. 78 Where the explanation of the prosecution for non-examination of the injured witness that he was gained over by the accused was borne out by record, an adverse presumption under Section 114, illustration (g ) could not be drawn against the prosecution. 79 Where the prosecution fails to examine a material witness, but offers to produce the witness for cross-examination and the counsel for the accused does not take advantage of cross-examining the witness so offered, no adverse inference can be drawn against the prosecution. 80 The probative value of other witnesses would not be affected by the non-examination of some witnesses who were known by the prosecution to have been won over by the accused. 81 No adverse presumption can be raised against the prosecution on nonexamination of the injured witness who lodged the F.I.R. but was won over by the accused. 82 No adverse inference can be drawn against the prosecution, if it does not examine witnesses gained over by the accused. 83 When the prosecution after having summoned a witness and made him appear, gives up that witness on the ground that he has turned hostile or he has been won over by the accused, the question of raising a presumption under Section 114(g) does not arise. 84 Where the prosecution did not examine a particular witness on the ground that his testimony would be a duplication of another witness already produced, it was held that the non-production of another witness did not militate against the prosecution. 85 Where the prosecution does not produce a nonmaterial witness, no adverse inference can be drawn against it. 86 Not producing a factional witness creates no presumption. 87 In case of failure to examine persons whose statements were recorded by the police, as witnesses, no adverse inference can be drawn. 88 In committal proceedings instituted on a police report, absolute discretion is given to the prosecution in the matter of production of witnesses of the actual commission of the offence as per the new provision under Section 207-A,Cr.P.C. The law empowers the Magistrate to take evidence of any one or more of the other witnesses for the prosecution, if he considers it necessary in the interest of justice. No inference adverse to the prosecution can be drawn from such non-production of all the identification witnesses before the Committing Magistrate.89 No adverse inference can be drawn against the prosecution for notexamining the head-constable before whom the prosecutrix and the accused were first produced when the evidence of the prosecutrix, in a rape case was found to be true and was fully corroborated. 90 Where the testimonies of the two independent witnesses, the Magistrate and the doctor were found to be reliable, no adverse inference could be drawn and no prejudice could be said to have been caused to the accused by non-examination of the daughter of the deceased or due to infirmities in

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framing of the charges. 91 No adverse inference can be drawn against the prosecution for failure on its part to explain minor injuries on the person of the accused. 92 Where the prosecution had examined two injured and two independent eye-witnesses on the same point and there was no evidence on record to show that the witnesses who were said to have not been examined were material witnesses and the prosecution withheld and not examined them with ulterior motive, the non-examination of such witnesses would not be fatal to the prosecution case. 93 The prosecution is not bound to call witnesses irrespective of consideration of number and reliability. It is only those witnesses who are essential to the unfolding of the prosecution story, that should be called by the prosecution. It is no part of the duty of the prosecution to supply ammunition to the defence for the purpose of blowing up the prosecution story. 94 Non-cross-examination of witnesses.-- Where plaintiff's witnesses have not been cross-examined by the defendant with regard to the date of execution of mortgage deed, a vital issue, an adverse inference against the defendant can be drawn. 95 See also under 'Non-examination of a witness' in Section 134. 45 Mahendrapal v. State, (1955) 2 All 325. 46 Sawal Das v. State of Bihar, 1974 CrLJ 664 : AIR 1974 SC 778; Karnesh Kumar v. State of U.P., AIR 1968 SC 1402; Habeeb Mohammad v. State of Hyderabad, AIR 1954 SC 51; Gulam Mohammad v. State of Gujarat, AIR 1980 SC 1558; Thulia Kali v. State of T.N., AIR 1973 SC 501 : 1972 CrLJ 1296; Ganadesh v. State, AIR 1968 Goa 63 : (1968) CrLJ 925; . Kamla Kunwar v. Ratanlal, AIR 1971 All 304; Hardeo Singh v. State of Raj., (1977) 27 Raj 326; State v. Geda Baro, (1968) 20 Assam 440; State v. Hiralal, AIR 1957 All 342; Major Harbans Singh v. Union of India, (1971) 1 Delhi 326; State v. Badruddin, AIR 1950 All 436 : 51 CrLJ 1152; Raghava Kurup v. State of Kerala, AIR 1965 Ker 44 : 1965 (1) CrLJ 173(Ker) ; Fakirchand v. State, 1955 CrLJ 1073 : AIR 1955 MB 119; J.K. Devaiya v. State of Coorg, AIR 1956 Mys 51; Abdul Hamid v. State of Tripura, AIR 1958 Tri 1 : 1958 CrLJ 97(Tri) ; Public Prosecutor v. Sarolla Gopala Rao, 1971 CrLJ 536(AP) ; Guljara Singh v. State of Rajasthan, AIR 1971 Raj 68 : 1971 CrLJ 498(Raj) ; Bhanda Garh v. State of Assam, 1984 CrLJ 217(Gau) ; Subedar Samandar Singh v. State, AIR 1968 Punj 72; Bhuban Bejoy Singh v. Emperor, (1939) 60 Cal 1361 : AIR 1933 Cal 600; Darya Singh v. State of Punjab, AIR 1965 SC 328. 47 Harpal Singh v. Devinder Singh, AIR 1997 SC 2914 : 1997 CrLJ 3561. 48 State of Maharashtra v. Krishna Murthi, AIR 1981 SC 617. See also Ram Kumar v. State of Haryana, 1996 CrLJ 2441 (para 16) (SC) : AIR 1996 SC 3185 (Non-production of witnesses other than eye-witnesses). 49 1978 All CrR 48; Hardeo Singh v. State of Rajasthan, (1979) 6 CrLT 326; Amar Singh v. State of Haryana, AIR 1973 SC 2221; Mangal Singh v. State of M.B., AIR 1957 SC 199. 50 Ghulam Mahmood v. State of Gujarat, AIR 1980 SC 1558. See also Administration of Union Territory of Dadra and Nagar Haveli v. Manganbhai L. Vartha, 2005 CrLJ 3359, 3361 (para 15) (Bom). 51 Bir Singh v. State of U.P., AIR 1978 SC 59; State of Orissa v. Bhagabat Mahanta, (1978) 1 Cut 517. 52 Kaka Singh v. State of Haryana, AIR 1995 SC 1949 (para 2) : 1995 CrLJ 3234. 53 Chacko v. State of Kerala, AIR 1998 SC 2250 : 1998 CrLJ 3281. 54 Nisar Ahmad Fajmohmed Kaji v. State of Gujarat, (1998) 9 SCC 23 : 1998 SCC 967(Cri) . 55 State of Bihar v. Ram Padarath Singh, AIR 1998 SC 2606. 56 Abdul Gani v. State of M.P., AIR 1954 SC 31 : 1954 CrLJ 338; Milawa Singh v. State, (1969) 19 Raj 161; Mamchand v. State, 1981 CrLJ 190(P&H) ; Phani Bhushan Gupta v. State, AIR 1968 Tri 57; Mahendra Singh v. State, 1972 CrLJ 1590(Dal) ; Sampuran Singh v. Haryana, 1980 CrLJ 951(Punj) (DB); Peare v. State, 1957 CrLJ 263(All) ; Yakub Khan Ibrahim Khan v. State of Bhopal, 1955 Bhopal 17; Superintendent and Rememberancer of Legal Affairs of W.B. v. Ram Ajodhya Singh, AIR 1965 Cal 348 : 1965 (2) CrLJ 79; Lalua Dom v. State, AIR 1955 Cal 461 : 56 CrLJ 1174; Khazan Singh v. State of Punjab, 1989 CrLJ 1555; Haridas Mundra v. State, (1962) 1 All 451. 57 State v. Joseph, 1963 (2) CrLJ 454(Ker) . 58 Des Raj Sharma v. State, 1951 Punj 14. 59 Emuga Lakshmamma v. Vennapuse Chinna Malla Reddy, AIR 1985 SC 658. Similar presumption raised where police diary and register not produced. Sevi v. T.N., AIR 1981 SC 1230; State of Bihar v. S.K. Thocker, AIR 1981 Pat 81, Land Acquisition Officer's failure to produce list of tenants and rent paid. Ramesh Candra v. State, AIR 1980 Guj

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1(FB) . Sample experimented upon not produced, Lai Kunnissah v. Hari Prasad, AIR 1980 All 63, non-production of records by railways. 60 State v. Hardial Singh, AIR 1953 Pepsu 66. 61 State of Orissa v. Bhourilal Agarwalla, (1962) 1 CrLJ 835; Ladi Aggrwallani v. Bhagabandoi, (1966) 18 Assa 462. 62 Habeeb Muhammad v. State of Hyderabad, (1954) SCR 475 : AIR 1954 SC 51. See also State of U.P. v. Punni, AIR 2008 SC 932, 936 (para 9); Ram Prasad v. State of U.P., AIR 1973 SC 2673 (para 13) : (1974) 3 SCC 388; Mungala Chenchu Ramaiah v. State of A.P., 2008 CrLJ 2916, 2918 (para 10) (AP). 63 Dasan v. State of Kerala, 1987 CrLJ 180(Ker) . 64 Gajendra Singh v. State of U.P., 1975 CrLJ 1494 : AIR 1975 SC 1703. 65 Lakshmi Singh v. Bihar, AIR 1976 SC 2263, at 2269; Baljit Singh v. U.P., AIR 1976 SC 2273 the I.O. refused to produce copies of official records in his possession as to cultivation of land. Gajendra Singh v. U.P., AIR 1975 SC 1703, non-examination of the most material witness in defence discredits defence; the witness being a lady is a lame excuse. Prosecution failing to explain injuries on accused, may lead to adverse inference, Sukhdev Singh v. State of Punjab, 1997 SCC 831(Cri) . 66 Sawal Das v. State of Bihar, AIR 1974 SC 779. 67 State of U.P. v. Lakhmi, AIR 1998 SC 1007 : 1998 CrLJ 1411. 68 Amar Singh v. Gangoo, AIR 1956 Bhopal 6; Orissa Road Transport Co. Ltd. v. Sibananda Patnaik, (1979) 1 Cut 82. 69 A. Jayachandra v. Aneel Kaur, (2005) 2 SCC 22, 31 (para 15) : AIR 2005 SC 534. See also Debabrata Chakraborty v. Rina Chakraborty, AIR 2009 (NOC) 809(Cal) . 70 Munshi Singh v. State, 2004 CrLJ 2975, 2978 (para 11) (All) : 2004 All LJ 1890 : 2004 (49) All CrC 634. 71 Ramesh v. State, 2004 CrLJ 1877, 1882 (para 20) (All) : 2002 (3) All CrR 2187. 72 Bali Ram Prasad v. State of Mysore, 1973 CrLJ 3 : AIR 1973 SC 506. 73 Dalip Singh v. State of Punjab, AIR 1979 SC 1173; Dulal Chandra Ghosh v. State of West Bengal, 1988 CrLJ 1835(Cal) . 74 Ram Kumar v. State of Haryana, AIR 1996 SC 3185 : 1996 CrLJ 2441. 75 R.K. Dalmia v. Delhi Administration, AIR 1962 SC 1821; In re : Talapula Obula Naidu, (1964) 2 CrLJ 78(AP) : ILR (1963) AP 349 relied on In re : Vengala Reddy, AIR 1956 AP 26; Stephen Seveniratne v. The King, AIR 1936 PC 289; Malak Khan v. Emperor, AIR 1946 PC 16; Adal Mohammad v. Attorney General, AIR 1945 PC 42; In re : RamaChandran, AIR 1957 Mad 505; Narain v. State of Punjab, AIR 1959 SC 484; State v. Kalu, AIR 1964 MP 182. 76 Harpal Singh v. Devinder Singh, AIR 1997 SC 2914 : 1997 CrLJ 3561. 77 Moirangthem Tomba Singh v. State of Manipur, 1984 CrLJ 536(Gau) ; Jamser Ali v. State of Tripura, AIR 1954 Tri 11; Ibrahim Kuotty v. State of Kerala, 1984 CrLJ 221(Ker) (DB); Dashirai Riang v. State, 1964 Tri 54; Palsingh v. State of U.P., AIR 1979 SC 1116; State of Rajasthan v. Bhola Singh, AIR 1969 Raj 219 : 1969 CrLJ 1002(Raj) . 78 Dalbir Kaur v. Punjab, 1977 CrLJ 273 : AIR 1977 SC 472. 79 Saudagar Singh v. State of Haryana, AIR 1998 SC 28 : 1998 CrLJ 62. 80 State of Gujarat v. Raghunath, 1985 CrLJ 1357 : AIR 1985 SC 1092. 81 Allauddin Mian v. State of Bihar, AIR 1989 SC 1456. 82 Saudagar Singh v. State of Haryana, (1997) 11 SCC 546. 83 Bakshish Singh v. State of Punjab, 1957 SCJ 104; Sadek S.K. v. State, 1984 CrLJ 29(Cal) . 84 Mutteppa Dhareppa v. State, (1979) 2 Kant 2154 : 1980 CrLJ 1065(Kar) . 85 Rajpal Bhiraram v. State, 1974 CrLJ 1225; Waisuddin v. State, 1991 CrLJ 134. 86 Mehmood Beg v. State of Rajasthan, 1973 CrLJ 806.

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87 Ram Avtar Rai v. State of U.P., AIR 1985 SC 880. 88 Gajanand Maganlal Mehta v. State of Gujarat, 1987 CrLJ 374(Guj) . 89 Ghani v. State, (1962) 2 CrLJ 411 : ILR 1962(1) All 169. 90 State of Karnataka v. Mehaboob, CrLJ 940 (Kar). 91 Janabai Ranu Patole v. State of Maharashtra, 1997 CrLJ 3062(Bom) . 92 Mansingh v. State of M.P., 1987 CrLJ 693(MP) . 93 Babukhan v. State of M.P., 2004 CrLJ 3299, 3302 (para 12) (MP) : 2004 CrLR (SC & MP) MPI 522. 94 In re : Mettu Pentayya, AIR 1960 AP 545 : 1960 CrLJ 1402; Stephen Seveniratne v. The King, AIR 1936 PC 289; Narain v. State of Punjab, AIR 1959 SC 484; In re : Boy Burranna, AIR 1954 AP 46; Kamla v. State, (1962) 12 Raj 144; Abdul Gafur v. Govt. of Tripura, AIR 1952 Tri 25; Bir Singh v. State, ILR (1974) HP 948. 95 Mehnga Singh v. Gurdial Singh, AIR 2004 P&H 93, 105, (para 27) : 2004 (1) Civil Court C 525 : 2004 (3) Land LR 344 : 2004 (1) Rec Civ R 338.

45. WITHHOLDING OF DOCUMENTS (CIVIL) (a) Party L ORD S HAW referred to: "a practice, grown up in Indian procedure of those in possession of important documents or information lying by, trusting to the abstract doctrine of the onus of proof, and failing accordingly to furnish to the courts the best material for its decision. With regard to third parties, this may be right enough; they have no responsibility for the conduct of the suit; but with regard to the parties to the suit, it is in their Lordships' opinion an inversion of sound practice for those desiring to rely upon a state of facts to withhold from the court the written evidence in their possession which would throw light upon the proposition". 1 But where it was held that where neither party produced any evidence though any of them could have produced it the absence of evidence was inconclusive. 2 Where a party in possession of best evidence i.e., material document which would throw light on the issue in controversy withholds it, the court may draw an adverse inference against him notwithstanding that the fact that onus of proof does not lie on him. 3 Where a party failed to produce documents asked for by any Authority, the Authority would be entitled to draw inferences as it might think justified. 4 Where an assessee fails to put before the department of revenue, material in his exclusive possession, adverse inference can be drawn against the assessee. 5 Withholding of a document by the Government under the plea that it is a privileged document leads to adverse inference against the Government. 6 Where the defendant admits service of a notice but alleges that the notice was not valid and sufficient and does not produce the notice and fails to give any explanation for its non-production, it is proper and reasonable to infer that the notice was in the custody of the defendant and that if it had been produced, it would have shown that it was valid and sufficient. 7 Where in spite of the court's directions the defendant did not produce the documents and kept in the office which would throw light on the question of his negligence, it was held adverse inference that he was negligent, could be drawn. 8 The plaintiff, in order to prove misconduct and negligence of railway, may call upon the railway administration to produce evidence and if it does not produce it, the court may infer that, if evidence was produced, it would have gone against the defendant. 9 Where goods carried at railway risk are damaged, the burden is on the Railway Administration to place material before the court to show that as much care as was required was taken by them. Non-production of such material will justify raising an adverse inference against them. 10 When primary evidence is withheld by the Railway Administration, the court can draw adverse presumption against the administration. 11 Where the Railways failed to disclose to the consignor how the consignment was handled in transit, adverse inference can be drawn. 12 Where a stationary truck was damaged by a truck in motion, compensation was claimed from the owner of the truck in motion and its insurer, failure on the part of the insurer to produce the insurance policy gives rise to an

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adverse inference against the insurer. 13 An adverse presumption arose where a notification declared certain premises as shops without giving any opportunity to the owner. The relevant material justifying the notification was not produced in the court 14 . A worker claimed to have become permanent on account of continuous service. The Reserve Bank failed to produce any records. The worker's case was presumed to be true. 15 In a rent control case, the mere fact that the onus to prove the case is on the landlord, is immaterial where the appellant tenant has suppressed the land lord's notice, alleged to bear no signature, though in possession of the same. The tenant cannot be allowed to take advantage of abstract doctrine of the onus of proof. The court is justified in drawing presumption against the tenant in terms of Section 114(g). 16 Where a court directed the State Government to furnish information regarding a particular Government Scheme, adverse inference can be drawn for noncompliance with the direction. 17 Where despite directions of the Court the appellate-State failed to produce the merit list, an adverse inference was drawn that no merit list was prepared. 18 Where the respondent state failed to file counter-affidavit and produce records to substantiate its case despite Court direction, the appellant's case was accepted that he was entitled for promotion. 19 Where a party alleges that houses were purchased out of the sale-proceeds of land belonging to joint family and does not produce sale deed of land or extracts from land records to show existence of land, but offers oral evidence, adverse inference may be drawn for non-production of documents and oral evidence cannot be accepted. 20 Adverse inference can be drawn against the plaintiff alleging co-ownership rights in some portion of the land if he fails to produce the sale deed by him. 21 Where a witness for the plaintiff admitted that the plaintiff had got records of property of his private estate and all the properties were mentioned therein but he did produce the records, a presumption was raised that had the records been produced, they would not have supported the plaintiff's case. 22 A very strong presumption must be raised against a party who withholds a document which is the best evidence and abstains himself from appearing in the witness box. 23 Under the Punjab Gram Panchayat Act an adverse presumption could be drawn that the second enquiry was not competent and was liable to be quashed when the first enquiry was withheld by the authorities. 24 Where the defendant asserts that a particular person is only a commission agent and not its employee as contended by the plaintiff, the defendant fails to produce the employee's register, the necessary inference has to be drawn against the defendant and that person should be taken as an employee of the defendant. 25 Where search and seizure of the smuggling property was made on the information received by the Custom Authorities, non-production of documents disclosing such information would lead to adverse inference against the authorities. 26 In an accident claim case, non-production of log book of the vehicle by defence party, even if the burden of proof does not lie on him, may lead to draw an adverse inference against him. 27 A tenant claimed title to the property on the basis of gift through issuance of an appropriate letter which he did not produce before the Court. It was held that an inference could be drawn that either he did not tell the truth that such a letter was written and/or an adverse inference could be drawn that had the said letter been produced, the same would have gone against the interest of the tenant. 28 Where in a proceeding for interim maintenance, the husband did not produce the copy of his income tax return, it was observed that there is no necessity that every citizen has to file income tax return and held that an adverse inference to a limited extent could be drawn against him that he did not want to disclose his real income. 29 Where a company claimed depreciation it was held mere production of auditor's certificate is not sufficient in the absence of the balance sheet and profit and loss account. 30 It cannot be held that in order to raise the presumption under Section 114(g), it is necessary to follow the procedure of giving a notice for production of documents under O. XI, C.P.C. or summon documents under O. XVI, C.P.C. The only important condition is that the party should prove that the document is in existence and is in the possession or custody of the party against whom the adverse inference is sought to be drawn.31 An adverse inference may be raised by the court against a party withholding evidence in his possession notwithstanding the fact that the party is not called upon expressly to make an affidavit of documents and inspection and production of documents is not demanded. 32 No adverse inference can be drawn against the insurance company producing incomplete policy with endorsement not showing the extent of its liability as the insured had not pleaded its unlimited liability. Besides the insurer was not bound to produce policy 33 and also against the owner of a motor vehicle

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whose liability was to be determined for an accident, for not producing the permit of the vehicle which he was never asked to produce. 34 A public servant, accused of accepting bribe claiming to be on leave on the relevant day, failed to produce, the casual leave register of the department. However, he had produced the application made for casual leave on that particular date and he had examined an officer of the department as witness to prove his absence on that date. An adverse inference was drawn against him for non-production of the said register. The Supreme Court held that there was no reason to discard his application for casual leave and the evidence of the departmental officer and the Courts below erred in drawing an adverse inference against him. 35 (b) Withholding Account Books Non-production of account books which are relevant for determination of the issues in the case may give rise to an adverse inference against the party who fails to produce them. 36 An adverse inference can be drawn against a party for non-production of account books if the other side had asked the court to order that party to produce accounts and the party had failed to produce them. 37 Adverse inference can be drawn against the party for not producing relevant account books, even if they were not summoned by the opposite party. 38 Where the writ of certiorari issued by the High Court directing the Government of India to produce the records of accounts in the Court was not complied with, adverse inference could be drawn against the Government for keeping the best evidence away from the Court of law and the same was held to be against the principles of public justice. 39 Presumption as to consideration under a pronote under Sections 118(a)Negotiable Instruments Act can be rebutted by evidence which need not necessarily be by direct evidence. In the case of a professional money lender adverse inference can be drawn if he suppressed his account books and can be held that in his case that he advanced money to the dependent was not true. 40 In a suit for recovery of amount due on the basis of adjustment, the defendant was in possession of account books from which the balance could be ascertained. It is the duty of the defendant to produce the account books before the court. He cannot rely upon the abstract doctrine of onus of proof that it was not his duty to produce them unless he was called upon to do so. 41 1 Murugesam Pillai v. Gnana Sambhanda Pandara Sannadhi, AIR 1917 PC 6. See also Rameshwar Singh v. Bajit Lal, AIR 1929 PC 95 : AIR 1953 SC 225; Hiralal v. Badkulal, (fol 1917 PC 6 in preference to 1915 PC 96). Mahabir Singh v. Rohini, AIR 1933 PC 87; Gopal Krishnaji Ketkar v. Md. Haji Latif, AIR 1968 SC 1413; Deviji v. Mohanlal, AIR 1960 Pat 223; Sriram v. Dukha Jena, AIR 1966 Ori 66; Agurchand v. Deochand, AIR 1960 AP 101; Hazaribagh Municipality v. Fulchand, AIR 1966 Pat 434. See contra B. Kunwar v. Ranjit Singh, AIR 1915 PC 96; Nagendra Kumar v. Eswari Sahu, AIR 1958 Pat 329; Ishwar Dass v. (Firm) Radha Mal, AIR 1960 Punj 417; Shanti Prasad Jain v. Kalinga Tubes Ltd., AIR 1962 Ori 202; Soresh Chandar Das v. Balabhadra Pattanik, ILR (1970) Cut 1143; Peter Alan Basil v. East India Pharmacutical Works Ltd., AIR 1976 Cal 182; .Niranjan Kaur v. New Delhi Hotels Ltd., AIR 1988 Del 332; Muniyappa v. Deputy Commissioner, Kolar, 1998 AIHC 4017 (paras 9 and 13) (Kant). 2 Ram Rati Kuer v. Dwarka Prasad Singh, AIR 1967 SC 1134. 3 Davidas v. Shrishailappa, AIR 1961 SC 1277; Gopal Krishnaji v. Md. Haji Latif, AIR 1968 SC 1413; (though the onus in on the opposite party); Virendra v. Jagjiwan, AIR 1974 SC 1957; Atyam Veerraju v. Pechetti Venkanna, AIR 1966 SC 629; Ramdas Oil Mills v. Union of India, AIR 1977 SC 638; Baljit Singh v. State of Uttar Pradesh, AIR 1976 SC 2273; Rangabati v. United Bank of India, AIR 1961 Pat 158; K.K. Hushenkhan v. Nijalingappa, AIR 1968 Mys 18; Gurusami Nandan v. Gopala Swami Odavar, ILR 42 Mad 629; Shankar Rao v. Kamta Prasad, 1947 Nag 129; Peter v. East India Pharmaceotical Works, 1976 Cal 182; Raghavamma v. Chenchamma, AIR 1964 SC 136; S. Sita Maharani v. Cheedi Mahto, AIR 1955 SC 328; P.C. Chunder & Co. Ltd. v. Ram Asis Ram Nonia, AIR 1953 Cal 336; Mannalal v. Dalchand, ILR 1961 MP 117; Jagannadham v. Padmabati, AIR 1962 Ori 7; Ganesh Chandra Khan v. State of W.B., (1972) 1 Cal 171; Premchand Surana v. Lakshmi Chand Parakh, AIR 1971 MP 124; Amarchand Pannalal v. Union of India, AIR 1955 Assam 221; Asiatic Steam Navigation Co. Ltd. v. Jethalal Dharamshi & Co. Ltd., AIR 1959 Cal 479; Meghji Malsee Ltd. v. P.C. Oommen, AIR 1963 Ker 306; Nar Bahadur Gurung v. Anil Krishan Bhattacharya, AIR 1957 Manipur 25; Mansarover Agencies v. Governor General in Council, AIR 1955 Mys 123; Firm Pursottam Das v. Gulab Khan, AIR 1963 Pat 407; Bherulal v. Dhapubai, 1963 MP 121; Veeraiah Ambalam v. Karuppan, ILR (1963) MP 121; AI Yappan Pillai v. Bhagavathi Pillai, AIR 1952 Trav Co. 471; Commissioner of Hazaribagh Municipality v. Fulchand Agarwalla, AIR 1966 Pat 434; Shrinarayan v. Chamber of Commerce Ltd., (1968) 18 Raj 1212; Banambar Das v. Udayanath Pattanaik, AIR 1961 Ori 148; Harijit Singh v. S. Umrao Singh, AIR 1980 SC 701; Ramdas v. State of Maharashtra, 1977 CrLJ 955 : AIR 1977 SC 1164; Baljit Singh v. State of U.P., 1976 CrLJ 1745 : AIR 1976 SC 2273; Gurnam Singh v. Surjit Singh, AIR 1974 SC 2367; Union of India v. Rai Singh Deb Singh Bist, AIR 1974 SC 478; Ridhikaran Ramadhin v. French Motor Car Company Ltd., AIR 1955 Ori 60; Chandra Sekar Praharaj v. Pitambair Dibya, AIR 1953 Ori 315; Brahmdeo v. N.A. Committee, AIR 1965 Pat 179; Binani Properites (Pvt.) Ltd. v. M. Gulmali Abdul Hossain & Co., AIR 1967 Cal 390; Roop Kishore v. Kesarimal, (1959) 9 Raj 938; Burn & Co. Ltd. v. State, AIR 1976 Cal 389; Irudayam Ammal v. Salayath Mary, AIR 1973 Mad 421; State v. Jiwan Singh, ILR (1980) HP 516; Ram Murthy Gupta v. Suresh

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Chandra Agarwal, AIR 1973 All 582; Bikash Chandra v. Macniel, (1972) 1 Cal 157; Murugesam Pillai v. Gnana Sambandha Pandara Sannadhi, AIR 1917 PC 6; Prananath Patnaik v. Banmali Patnaik, AIR 1958 Ori 28; Musadi v. Ganpathu, AIR 1964 Him Pra 5; Lakhmir Singh v. Union of India, AIR 1957 Pat 633; Kuttan Panicker v. State of Kerala, (1963) 1 CrLJ 669(Ker) ; People's Insurance Co. Ltd. v. Wood & Co., Ltd., AIR 1960 Punj 388; Asa Ram v. M.C.D., AIR 1995 Del 164 (para 10); Indian Bank, Secunderabad v. Boorugu Nagaiah Rajana, AIR 2000 AP 289 (paras 29 and 36); State Inspector of Police v. Surya Sankaram Karri, (2006) 7 SCC 172, 178 (para 18) : (2006) 8 JT 177; Jagmodhan Mehatabsing Gujaral v. State of Maharashtra, (2006) 8 SCC 629, 635-36 (para 23) : (2006) 9 JT 476; Keshav Prasad v. Brijbhushan, AIR 2006 MP 207, 213 (para 21); Nizam's Institute of Medical Sciences v. Prasanth S. Dhananka, 2009 CrLJ 3012, 3021-22 (para 17). 4 C.M.P. Co. op. Societies v. State of M.P., AIR 1967 SC 1815. 5 Commissioner of Income-tax v. Best and Co. Ltd., AIR 1966 SC 1325. 6 State of M.P. v. Sardarmal, AIR 1987 MP 156. 7 Kishan Prasad v. Union of India, AIR 1960 Cal 264. 8 State of Punjab v. Modern Cultivators, AIR 1965 SC 17. 9 Union of India v. Mahadeo Lal Prabhudayal, AIR 1965 SC 1755; Union of India v. Mamchand Agarwalla, AIR 1967 Cal 133; Sarat C&W Mills v. Secretary of State, 39 Bom LR 946 : AIR 1937 PC 152. 10 Union of India v. Firm Munnalal Pasari & Sons, AIR 1971 MP 131; Union of India v. Rajendra Mills, AIR 1971 Mad 53; Union of India v. Gopal Das Ramesh Chand, (1976) 2 Del 508. 11 Union of India v. L.R. Cotton Mills Ltd., AIR 1971 All 531. 12 Union of India v. Harbansh Singh, (1965) 2 All 768; Union of India v. Delhi Cloth and General Mills Company Ltd., AIR 1964 Punj 147. 13 G. Krishna Rao v. C. Poornachandra Rao, AIR 1987 Pri 18. 14 Lipton India Ltd. v. West Bengal, AIR 1984 Cal 109. 15 H.D. Singh v. Reserve Bank of India, AIR 1986 SC 132. 16 Tirlok Chand v. Ram Kishan Dass, (1964) 1 Punj 28. 17 Gulshan v. Zilaparishad, AIR 1981 SC 1628. 18 State of Bihar v. Kumar Promod Narain Singh, (1997) 5 SCC 298. 19 Bir Singh Chauhan v. State of Haryana, (1997) 6 SCC 282. See also State v. Rikhab Das Jain, AIR 1994 Raj 114 (paras 4 and 6). 20 Ch. Mansa Ram & Sons v. Secretary, Industries, AIR 1960 All 570; C.V. Hayagriv v. Mysore Silk Museum Regd., AIR 1971 Mys 227. 21 Gurnam Singh v. Surjit Singh, AIR 1974 SC 2367. 22 Motilal Lakhotia v. Mewang Tobgyal Wangehuk Tenzing Namgyal, AIR 1994 Sik 6 (para 10). 23 Bawa Singh v. Jagdish Chand, AIR 1960 Punj 573. 24 Mewa Singh v. Secy D and P Dept., Govt. of Haryana, AIR 1991 P and H 23. 25 Taneja Skins Co. Pvt. Ltd. v. Bharath Skins Corpn., AIR 2002 Del 179, 181. 26 Sugandha Industries Pvt. Ltd. v. A.K. Saha, 2002 CrLJ 3852, 3856 (para 14) (Cal). 27 Jagmit Kaur v. Union of India, 2003 AIHC 496, 499 (paras 7 & 8) (Raj), relying on Gopal Krishnaji Ketkar v. Mohamed Hazi Latif, AIR 1968 SC 1413. 28 Kamakshi Builders v. Ambedkar Educational Society, (2007) 12 SCC 27, 36 (para 20) : AIR 2007 SC 2191. 29 L. Yuvaraj v. Kirubaarani Devi, AIR 2009 Mad 138, 140 (para 11). 30 Metal Box Co. v. Their Workmen, AIR 1969 SC 612.

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31 Agarchand Bhomraj Sowear v. Deochand, AIR 1960 AP 101. 32 Biltu Ram v. Jainandan Prasad, Civil Appeal No. 941 of 1965, decided on April 15, 1968 (Supreme Court). 33 New India Assurance Company Ltd. v. Suresh Chandra Patra, AIR 1994 Ori 236 (paras 13 and 14). 34 Oriental Fire & General Insurance Co. Ltd. v. B. Sitharam Singh, AIR 1995 AP 268 (para 6). 35 Ganga Kumar Srivastav v. State of Bihar, (2005) 6 SCC 211, 219 (para 18) : AIR 2005 SC 3123 : 2005 CrLJ 3454. 36 Jag Prasad v. Singari, AIR 1925 PC 93; G.S. Mahalaxmi v. Shah Ranchhoddas, AIR 1970 SC 2025; K.M. Patel v. Firm Mohamadhussain Rahim Bux, AIR 1981 SC 977; Dataram Jain v. Basant Kunwar, AIR 1922 PC 378; Ram Das Oil Mills v. Union of India, AIR 1977 SC 638; Firm Ramlochan Ram Lakshmi Prasad v. Maikha Sethani, AIR 1960 Pat 271; Central Bank of India, v. Firm Rur Chand, AIR 1958 Punj 159; Firm B. Das v. Watkins M & Co., AIR 1956 Punj 17; Chidambaram Pillai v. Chidambaram Pillai, AIR 1951 Trav Co. 87; Krishan Dayal v. Chandu Ram, ILR 1969 Del 1090; B. Shambumal v. State of Bank of Mysore, AIR 1971 Mys 156; Krishan Dayal v. Chandu Ram, ILR 1969 Del 1090; Das Srinivasan v. Sundaramurthy, (1972) 1 Mad 377; Valluri Sreeramulu v. Regd. Firm Valluri Venkataraju etc., ILR 1977 AP 267; Rattan Singh v. State of Punjab, ILR 1980 HP 1; Tolaram v. Beenraj, AIR 1957 Raj 256; Vaiyapuri Mudaliar & Sons v. Sri Arunodhaya Textiles, Erode, AIR 1996 Mad 19 (para 26). 37 Devidas v. Shrishailappa, AIR 1961 SC 1277; Srinivas Das v. Surjanarayan, AIR 1967 SC 256. See also Veerraju v. Venkanna, AIR 1966 SC 629. Prosecution is not required to prove injuries on the person of the accused. Hence, no presumption if they don't Bhaba Nanda v. State of Punjab, AIR 1977 SC 2252; Official Receiver v. Krishanan, AIR 1965 Ker 156; Nathulal Mulchand v. Phoolchand Gorelal, AIR 1955 VP 6; Shankarlinga Nadar v. Commissioner of Incometax, AIR 1930 Mad 209. 38 Bansidhar Ganga Prasad v. Chamanlal, (1975) 1 Del 445; See contra Govind Laxshman Salapurkar v. Dattatraya Damodar Kelkar, AIR 1991 All 226. 39 L.P. Naithani v. Allahabad Telephones, Allahabad, AIR 1998 All 191 (para 9). 40 A.S. Duraisami Chettiar v. S. Rathnaswami Gounder, AIR 1992 Mad 132. 41 Hiralal v. Badkulal, AIR 1953 SC 225 followed in H.S. Nanjudappa v. C.V. Shashidhara Murthy, 1996 AIHC 1916 (para 9) (Kant), following T.S. Murugesam Pillai v. M.D. Ghana Sambandha Pandara Sannadhi, AIR 1917 PC 6; See also Sri Ram Dayalu Das Babaji v. Dukha Jena, AIR 1966 Ori 66.

46. DELAY IN FILING APPLICATION In an elections petition, the respondent was served with copies of the election petitions but he waited for more than one month to file applications under Order VII, Rule 11 of the CPC for the rejection of the election petitions. The Apex Court held that an adverse inference could be drawn against him for that. 42 42 Chandrakant Uttam Chodankar v. Dayanand Rayu Mandrakar, (2005) 2 SCC 188, 195 (para 20) : AIR 2005 SC 547.

47. WITHHOLDING OF DOCUMENTS AND ACCOUNT BOOKS-WHEN PRESUMPTION CANNOT BE DRAWN (a) Documents Where party fails to produce document in his possession adverse inference can be drawn and nonproduction would not affect the appreciation of other documents. 43 Where there is no evidence on record to show that a document having an important bearing on a dispute is with the party or within his power and that it is withheld from the Court, the court would refuse to raise an adverse inference against that party. 44 It is not incumbent on a party to produce documents, which, according to him, have no bearing on the case. It is for the other party to apply for inspection of documents which appear to him to be relevant

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and proper. If he fails to do so, neither he nor the court is entitled to draw any presumption regarding the contents of the documents. 45 Court will not draw a presumption under Section 114(g) against a person from his non-production of a document, where it is not shown that he had withheld this evidence or had any concern in doing away or suppressing the evidence. 46 Where a party produced only some of the documents in his possession and did not produce some and so, if the opposite party did not ask or question about the documents which were not produced, then no adverse inference can be drawn against the party who did not produce some of the documents. But the court can take into consideration in weighing the evidence from the established facts that the documents which were not produced might have favoured the case of the opposite party. 47 When the party is not called upon to produce a document, adverse inference cannot be drawn from the mere non-production unless there is deliberate suppression of the document. 48 Where the defendant did produce a document in the trial court, though at a later stage, and the plaintiff objected to its reception and the court shut it out, no adverse inference can be drawn against the dedendent from the fact that the document was not produced by him in time. 49 In a suit for specific performance the intending purchaser plaintiff stated that he had deposited in a bank a sum more than the sale consideration, thereby giving the defendant to understand that he was willing and ready to purchase the property, as per the terms of the agreement for sale. The defendant did not enquire about the name of the bank where the deposit was made. Neither he nor the court asked the plaintiff to produce the pass-book. In those circumstances adverse cannot be drawn against the plaintiff for non-production of the passbook. 50 Presumption that a document is antedated cannot be raised against the person producing it, on the ground of failure of petition writer to produce the register required to be maintained by him to show the date on which the document was written. It can only affect the value of petition-writer's evidence. 51 When burden of proving that the properties of the temple are held by the reigning mahant on trust for public purposes is on the Board of Religious Trust, the court cannot draw an adverse inference for failure of Mahant to produce the document where under the properties had been gifted to the founding Mahant. 52 No adverse inference can be drawn against a person from non-production by him of relevant documents when no burden of proof lies on him to prove a certain fact. 53 No presumption can be drawn in the case of non-production of a document by a rustic who is ignorant of the importance of the document. 54 When a relevant document or any other evidence (birth and death register) is available to both parties but none of them produces it, no adverse inference can be drawn from the non-production against plaintiff. 55 Where challenging the order of his retrenchment, the daily wager sought for his permanent appointment but failed to establish that he had worked for 240 days in the preceding twelve months prior to his alleged retrenchment; to show the terms and conditions of his offer of appointment and the remuneration received by him; to call upon the muster roll and to examine any witness in support of his case, no adverse inference could be drawn against the employer Municipal Corporation for not producing the best evidence i.e. the muster roll. 56 The services of the daily wagers were terminated by the Electricity Board on completion of the project. However, they were re-employed for the same work. Whenever required. In their petition for permanent employment, it was held that their employment, not being for continuous and regular work of the Board, and they having not established to have worked for 240 days in a year, no adverse inference could be drawn against the Board for its non-production of the muster rolls. 57 (b) Account Books A pre-requisite to the drawing of an adverse inference from the non-production of the account books is, to first establish that the party was maintaining accounts and yet failed to produce them to the court. 58 When a party failed to produce relevant account books unless the opposite party made attempts to call the account books, it was held that no adverse inference can be drawn. 59 Where the court accepts the reasons given by the plaintiff for non-production of the accounts or a relevant document the court cannot draw any adverse inference against the plaintiff for non-production of those documents. 60 Where, at the time the defendant compared the account with the plaintiff, he was shown all the books of account including the Pukki Bahi and the Kachchi Chopadi and it was not suggested by him that there had been interpolations by the plaintiff thereafter, and the plaintiff produced in court

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all the account books excepting the Kachchi Chopadi, held that much significance could not be attached to the plaintiff's failure to produce the Kachchi Chopadi. 61 Where, according to the plaintiff's case, his account books are not relevant, no inference can be drawn against him for non-production of his books. 62 It is not obligatory on the part of the court to draw an adverse presumption under Section 114 in every case where account books are not produced. When other evidence which is equivalent to or which can be characterised as substitute for account books is available for the court to come to a reasonable conclusion, it could do so. 63 It is incumbent upon the assessee to offer plausible explanation as to why the account books were not produced at the time of survey. The burden is on him to show as to why no adverse inference should be drawn against him. 64 43 Ahmed Khan v. Ali Ebrahim Noor, AIR 1925 PC 177. See also Krishan Lal v. Mohd. Din, AIR 1994 Del 10 (paras 26, 31, 33 and 34); Jyotirindra Bhattacharjee v. Sona Bala Bora, AIR 1994 Gau 99 (para 14). 44 Devi Das v. Shri Shailappa, AIR 1961 SC 1277; Atra Devi v. Ramswaroop Prasad Singh, AIR 1972 Pat 186. 45 J.N. Eranna Rao v. D.H.S. Setty & Co., AIR 1960 AP 331; Bilas Kumwar v. Desraj Ramjit Singh, AIR 1915 PC 96; The Ap car Collieries Ltd. v. Radha Gobinda, AIR 1954 Cal 480. 46 Narayan Waktu Karwadi v. Panjabrao Hukam Shambharkar, AIR 1958 Bom 296; Sojjanraj Swarup Chand v. Mehta Commer. Co., AIR 1973 Guj 57. 47 Mahant Shri Srinivas Ramanuj Das v. Sorjanarayan Das, AIR 1967 SC 256; Latikabala Dasi v. Anil Behari, AIR 1953 Cal 104; Kannaiyalal Ramanarain & Co. v. Union of India, AIR 1959 Pat 335; George Davis Mooken v. O. Thomakutty, AIR 1975 Ker 163; The Apcar Collieries Ltd. v. Radha Govinda, AIR 1954 Cal 480; Workmen of B.C.P. Ltd. v. Blundell Fomita Paints, (1971) 2 Ker 134; Sadhu Singh v. Chanda Singh, AIR 1957 Punj 108; George Davis Mooken v. O. Thomakutty , ILR 1974 (1) Ker 289. 48 Tejpal Singh v. Gaya Sahai, AIR 1952 All 808; Thirumalai Iyengar v. Subba Raja, 1962 Mad 219; Harinagar Sugar Mills Ltd. v. Sia Saran Sinha, AIR 1961 Pat 232; Union of India v. Shamsu Main, AIR 1956 Pat 71; Sobharam Jokhiram v. Union of India, AIR 1970 Pat 182; Union of India v. Sheo Prasad Fulchand, AIR 1967 Pat 328. 49 J.N. Eranna Rao v. D.H.S. Setty & Co., Bellary, 1960 AP 331. 50 Indira Kaur v. Sheo Lal Kapoor, AIR 1988 SC 1074: (1988) 2 SCC 488; Standard Chartered Bank v. Andhra Bank Financial Services Ltd., (2006) 6 SCC 94, 122 (para 51) : AIR 2006 SC 3626; Shyam Sundar Prasad (Dr.) v. State of Bihar (now Jharkhand), 2007 CrLJ 1989, 1992-94 (para 8). 51 Mohanlal v. Anandi Bai, AIR 1971 SC 2177. 52 State of Bihar v. Biseshwar Das, AIR 1971 SC 2057. 53 Ananta Charan Pani v. Daitari Jee, ILR 1969 Cut 796. 54 Kondamuri Anasuyamma v. District Judge, AIR 1991 AP 47. 55 Thakur Ram Janki v. Jago Singh, AIR 1962 Pat 131. 56 Municipal Corporation, Faridabad v. Siri Niwas, AIR 2004 SC 4681 (paras 13, 14 and 21) : (2004) 8 SCC 195. 57 M.P. Electricity Board v. Hariram, AIR 2004 SC 4791 (para 10), reversing W.P. No. 4604 of 1998, dated 10-5-2000 (MP). 58 Gopalan v. Chinnaya, AIR 1958 Andh 630; Chunkal Ojha v. Mulsankar Ojha, ILR (1961) Cut 635. 59 Ram Rati Kuer v. Dwarika Prasad, AIR 1967 SC 1134; Siddeswar Prasad v. B.S. Pramanick Sha, AIR 1978 Cal 4; George Davisa v. O. Thomakutty, AIR 1975 Ker 163; Kalloo Gaji v. Rishabh Kumar, AIR 1951 Nag 347; Durga Charan Ram v. Achuta Pati, ILR 1966 Cut 598; Banarasi Dass v. Shakuntala, AIR 1989 Del 184. 60 Brahmadutta v. Dasuram, (1967) 19 Assam 449 SC on appeal from Dasuram Mirjmal Firm v. Brahmadatta Bajaj, AIR 1963 Assam 41; Himatsingka Motor Works v. Harnath Basua, AIR 1965 Assam 10; Govinda v. Vaidyanath, AIR 1952 Hyd 22; Chiranjilal v. Rikhabdass, AIR 1959 Raj 291. 61 Suganchand v. Fulchand, AIR 1957 MP 194. 62 Udmiram Kardoodimal v. Balramdas Tularam, AIR 1956 Nag 76.

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63 A. Kandaswamy Pillai v. P.M. Thegaraja, AIR 1968 Mad 203; Official Liquidator, Puri Bank Ltd. v. Ramaniklal Joshi, AIR 1967 Ori 169; M.S. Narayana Menon v. State of Kerala, (2006) 6 SCC 39, 54 (para 44) : AIR 2006 SC 3366; Kundan Lal Rallaram v. Custodian, Evaquee Property, AIR 1961 SC 1316 : 1961 AnLT 601. 64 Commissioner of Sales Tax, U.P. v. Mohan Brickfield, Agra, (2006) 12 SCC 203, 211 (para 17) : (2006) 10 JT 95.

48. ALIBI EVIDENCE The omission on the part of the accused to produce all important evidence in support of his plea of alibi which could easily have been produced raises the presumption against him under illus. (g ) to Section 114 Evidence Act, that it would, if produced, have been unfavourable to him. 65 65 Satya Vir v. State of Allahabad, 1958 CrLJ 1266 : AIR 1958 All 746.

49. DETENUE In the absence of affidavit by the State and non-production of relevant files relating to the grounds for detention and service thereof on the detenue within the prescribed period, it may be presumed that, if those files were produced, they would have supported the plea of the detenue. 66 Where the detenue refused to receive the order of detention and the grounds thereof and copies of documents, the order must be presumed to have been served on him. 67 Where detenue stated that he sent a letter in which he retracted from his original statement before the order of detention and sent a photostat copy of the certificate of posting but did not send the copy of the letter it was held that it could not be presumed that such a letter was posted. 68 66 Md. Shafi v. State of J&K, 1970 CrLJ 747 : AIR 1970 SC 688. See also Mohd. Ramzan Dar v. State, 1996 CrLJ 1029 (para 7) (J&K). 67 Changamma v. State of Karnataka, 1991 CrLJ 315(Kar) . 68 L.M.S. Ummu Saleema v. B.B. Gujaral, AIR 1981 SC 1191.

50. MEDICAL EXAMINATION Where a party refuses to submit to a medical examination in a case where the whole case depends on the state of his or her mind or body, it will be open to the court to draw an adverse inference or presumption against the recalcitrant party. 69 However, it was held that where a party refused to give blood in a case for determining the paternity between the parties, an adverse inference could not be drawn against the party refusing to give blood. 70

69 Sulabai v. Jagannath, (1971) 74 Bom LR 295 : 1972 CrLJ 1392. See also George Philip v. Saly Elias T., AIR 1995 Ker 289 (paras 8 and 10), relying on Sheebe Daniel v. Alexander, 1989 (1) KLT 405. See also Sharda v. Dharampal, (2003) 4 SCC 493 (para 79) : AIR 2005 SC 3450; B. Laxmi v. B. Venugopal, AIR 2006 NOC 138(AP) : (2005) 4 Andh LJ 428. 70 Ramachandra Shankar Kad v. Shankar Genu Kad, AIR 1968 Bom 388.

51. DELAY IN SENDING FIR It cannot be laid down as a rule of universal application that, whenever there is some delay in sending the FIR to the Magistrate concerned, the prosecution version becomes unreliable. It would depend upon the facts of each case. In the instant case as appears from the records the investigation was taken up immediately and certain steps in investigation were taken. Therefore, the plea that there was

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no FIR in existence at the relevant time has no substance. Additionally, no question was asked of the investigating officer as to the reason for the alleged delayed dispatch of the FIR. Had this been done, the investigating officer could have explained the circumstances. That having not been done, no adverse inference can be drawn. 71 71 Sunil Kumar v. State of Rajasthan, (2005) 9 SCC 283AIR 2005 SC 1096 : 2005 CrLJ 1402.

52. NON-COMPLIANCE WITH DIRECTION OF TRIBUNAL Where the Railway Claims Tribunal passed an explicit direction upon the Railway Authority to state by affidavit whether there was any incident of mob-attack on the train on a particular date, but in spite of such direction, the Authority did not affirm affidavit denying such act whereas the claim of the mob attack was supported by affidavit of a co-passenger, it was held that the Court should draw a presumption against the Railway. 72 72 Lakhi Barua v. U.O.I., AIR 2008 Cal 59, 60 (paras 12 and 13).

53. REFUSAL TO ANSWER QUESTIONS [ILLUSTRATION (h)] Refusal to answer a question is a legitimate ground of unfavourable inference against the person who has to answer the question under Section 148(4),infra . But this illustration does not contemplate the case of witnesses who are not compelled to answer on grounds of privilege (vide Ss. 121-129). An inference adverse to the accused might be drawn from refusal of the accused to answer when he was examined by the Magistrate before committing him. 73 Thumb impressions of the accused taken in spite of his protests cannot be made use of. But the court may, however, take into consideration his refusal, for drawing presumption against him. 74 When an accused refuses to give specimen writing in spite of a direction by the court to the accused, the court can legally draw presumptions against him. It will not amount to compelling the accused to be a witness against himself. 75 Where the benefit of exemption on import of a certain item initially given to the petitioner under the existing notification was sought to be recovered under a subsequently issued notification but despite Court's direction the Government failed to file a counter-affidavit to show the existence of any public interest or exceptional circumstances that prompted it to issue the subsequent notification, it was held that neither existed and the petitioner was entitled for the said benefit. 76 In a murder case a dead body and severed head were found in the field and near the tube well of the accused where at he resided. The accused gave no explanation of it during cross-examination except making a bold denial. The Supreme Court held that, though this factor itself was not sufficient to fasten the guilt of the accused, while considering the totality of the circumstances this was a relevant factor. 77 Fisheries rights in certain tanks were acquired to rehabilitate certain fishermen displaced on other tanks which under Sections 6(3) of the Land Acquisition Act is for public purpose and is consistent withSection 114(h) also. 78 73 Ramanarayan Mor v. State of Maharashtra, (1964) 2 CrLJ 44 : AIR 1964 SC 949. 74 Balraj Bhalla v. Ramesh Chandra, 1960 CrLJ 297 : AIR 1960 All 157. 75 Ram Swarup v. State, 1958 CrLJ 134 : AIR 1958 All 119; Shashi Bhushan Pati v. State Bank of India, AIR 1986 Ori 218. 76 Choksi Tube Co. Ltd. v. Union of India, (1997) 11 SCC 179. 77 State of Punjab v. Karnail Singh, (2003) 11 SCC 271 (para 7) : AIR 2003 SC 3609 : 2003 CrLJ 3892. See also Raj Kumar Prasad Tamarkar v. State of Bihar, (2007) 10 SCC 433 : (2007) 1 Scale 19; Swamy Shraddananda v. State of Karnataka, (2007) 12 SCC 288, 307 (para 34) : AIR 2007 SC 2531; State of Rajasthan v. Parthu, (2007) 12 SCC 754, 758 (paras 13-14) : AIR 2008 SC 10; State of Rajasthan v. Kashi Ram, (2006) 12 SCC 254 : (2006) 11 Scale 440. 78 Mrinalini Roy Ratna Prova Mondal v. State of W.B., AIR 1997 SC 2244.

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54. DISCHARGE OF OBLIGATION [ILLUSTRATION (i)] The illustration (i) of the Section 114 of the Evidence Act applies where the document creating an obligation, is in the hand of the obligor i.e. if the bank guarantee is taken as a document then it should be in the hands of the bank who is obligor under the document to discharge the obligation as and when called upon. Where the bank guarantee deed was claimed to be with the petitioner for whom bank guarantee was given, the presumption under Section 114 cannot be drawn. 79 This presumption is funded on the natural supposition that a man will protect his own interests by securing his bond before or at the time of discharging it. Where the instrument of a debt and the security for that debt are found in the hands of the debtor, the prima facie presumption is that the debt has been discharged. 80 If a pronote is in the hands of the maker, there is a presumption that it has been paid of. If the drawee alleges that the maker came into possession of the pronote unlawfully, the onus is on him to prove it. This illustration only refers to presumption that may be raised. It does not follow that such presumption would shift the onus of proof. In a suit for money due on a mortgage bond, the plaintiff produced only a copy of the document, alleging in his plaint that it had been lost. The defendant admitted its execution, but alleged that the debt has been discharged, and in support of his allegation he produced the original document containing the endorsement of the mortgagee through her agent of payment of the debt. It was held that the production by the defendant of the bond with the endorsement of payment cast on the plaintiff the burden of proving that the debt was still outstanding. 81 Where the plaintiff filed a suit for recovery of amount due under a mortgage, the defendant produced only the bond creating obligation and denied liability and alleged theft of documents but the title deeds which were deposited by the defendant at the time of mortgage remained with the plaintiff, the privy council held that the presumption in favour of the defendants was considerably weakened by the fact of possession of title deeds of the defendant with the plaintiff. 82 In a suit for possession of property on the ground that there was a mortgage by conditional sale, the mortgagor produced the original document showing an endorsement on it that the mortgage consideration was prepaid, it was held that a presumption can be raised in favour of the plaintiff. 83 In a suit on a bond for money, plaintiff alleged that his non-production of the document was due to the fact that the defendant had stolen it. The defendant admitted the execution of the bond, but alleged that he had paid it; it was held that the burden of proof was on the defendant to prove payment; either by the production of the bond, or other evidence or by both. 84 Where plaintiff sued for money due upon hundis (bills of exchange), but alleged their loss, whilst defendant admitted execution, but pleaded payment and subsequent destruction of the documents, it was held that failing production of the hundies by the defendant there was no presumption that the hundies had been discharged and the onus was upon the defendant to prove payments. 85 In a suit for recovery of unpaid purchase money due under a sale-deed, the defendant produced a discharged pronote with stamps removed. It was held that the initial burden of proof of discharge is on the defendant and the burden can be discharged by proof of payment, by production of a document as it is one of the modes of proof. As the circumstances may show that the defence about the payment is not true. So, it is not obligatory on the court to draw a presumption of discharge of the liability. 86 Where the parties were closely related, the custody of document would not be material and the production of agreement to sell by the defendant would not lead to a presumption in a favour of defendant under Section 114 (i) of the Evidence Act. 87 79 Kamal Virdichanji Garg v. Fial India, AIR 2004 Bom 462, 470 (para 15) : 2004 (3) All MR 360 : 2005 (1) CTLJ 225 : 2005 (1) Civ LJ 240 : 2005 (1) Cur CC 619 : 2004 (4) Mah LJ 233. 80 Bhog Hong Kong v. Ramanathan Chetty, (1902) 29 IA 43 : (1902) 29 Cal 334 : 4 Bom LR 378. See also Blind Relief Association v. State of Maharashtra, 2000 AIHC 1649 (paras 20 and 21) (Bom). See also Citi Bank N.A. v. Standard Chartered Bank, AIR 2003 SC 4630 (paras 35, 36, 37, 38 and 39) : (2004) 1 SCC 12. 81 Muhammad Mehdi Hassan Khan v. Mandir Das, (1912) 39 IA 184 : (1912) 34 All 511 : 14 Bom LR 1073. 82 Alwar Naidu v. Kothandapani, AIR 1927 PC 261.

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83 Mahendra v. Mehta Mohanlal Mathuradas, AIR 1988 Guj 110. 84 Chuni Kuar v. Udai Ram, (1883) 6 All 73; Aung Myat v. Hla May, (1918) 10 LBR 26. 85 Dhian Singh v. Gurdit Singh, (1925) 6 Lah 297 : AIR 1925 Lah 521. 86 A. Narasimha Murthi v. K.P. Jijjibabu, (1973) 2 An WR 21. 87 Kishan Chand v. Sita Ram, AIR 2005 P&H 156, 163 (para 18).

55. GENERAL PRESUMPTIONS (a) Presumption of facts Presumption of facts is assumption resulting from one's experience of the course of natural events of human conduct and human character, and all those which one is entitled to make use of or has to make use of in the ordinary course of life, as well as the business of Courts. 88 Once the act s of a person are substantively against the proprietary rights of another person to his knowledge, then only one inference would follow that the proprietary right stood transferred. 89 (b) Fact in dispute An inference that a fact in dispute has been established can be drawn from the given objective facts, direct or circumstantial. 90 (c) Accounts When a debtor signs the accounts and acknowledges the debt, the presumption is that in signing he accepts the correctness of the accounts. 91 It would be utterly perverse and indefensible under the law to take the view that the account books of money lenders must be presumed to be forged. 92 The payment of an amount must be held to have been made on the date on which it was entered in the account books. 93 (d) Attestation Where a document appears to be attested by two persons and the evidence of one attesting witness falls short of proof of due attestation of the document, it was held that one could not presume from such signature that the document was attested by the other signatory also. 94 On failure of the defendant to produce the document despite notice, presumption that the same was duly attested could be drawn. 1 (e) Authenticity of document Where the documents in question were unsigned photocopies and did not come from proper custody and were even contradicted by another document, their authenticity was doubtful. 2 Genuineness of a document cannot be presumed merely because the said document has been exhibited and an objection to its genuineness can be entertained. 3 If an instrument is signed by both the parties, it is presumptive of fact that both of them have executed it. Similarly, if it is signed by only one party, it does not mean that both the parties have not executed it together, as it is a question of fact to be determined. 4 Where the documents were allegedly executed by a lunatic and were countersigned by his wife and sister, the validity of the documents could not be doubted, unless there was very strong evidence to hold to the contrary. 5 (f) Genuineness of contents of document

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Presumption of genuineness of the contents of the certified copy of a sale deed admitted under Sections 51-A of the Land Acquisition Act , 1894, may be raised, but the same can be relied upon only if the said presumption is not rebutted by other evidence. 6 Where admittedly the signatures on the document were in the language other than known to the executant, such document could not be presumed to have been executed by the signatory unless there was evidence to show that the contents of the document had been explained to the executant and he was aware of the contents of the document. 7 (g) Benami There is a presumption in law that the person, who purchases the property, is the owner of the same.

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Whether the nominal owner be a child, wife or a stranger, a purchase made with the money of another is prima facie assumed to be for the benefit of that other. 9 There is no presumption that what stands in the name of the wife belongs to the husband 10 . Nor is there any presumption that when property stands in the name of a female member of a Hindu family, it is common property of the family. 11 Where a locker is in joint names of husband and wife, ornaments kept therein must be presumed to belong to both. 12 The onus is on the person who alleges a transaction to be Benami , to make it out. The assertion that a transaction is not really what it professes to be will be regarded by the courts with caution and must be strictly made out by evidence. M AYNE ' S H INDU L AW , 13th Edn., para 869. 13 This aspect loses significance in view of the Benami Transactions Prohibition Act, 1988 (Act 45 of 1988). Where the parties to the transaction are public sector undertakings, here scheduled banks and their subsidiaries, a presumption would arise that they would not encourage any benami transaction nor would they involve themselves therein. 14 (h) Criminal Law In a criminal case, no presumption should be raised which does not have any origin in any statute as it would cause a great prejudice to an accused. 15 Presumption arises that mens rea or guilty intent is an essential ingredient of offence. However, the legislature may enact a law giving rise to strict liability where existence of mens rea as an essential element is not necessary. 16 In a case under Opium Act (since repealed), the accused got a parcel of apples released from the railways. When intercepted by police the parcel was found to contain opium. It was held that, if possession is an offence, the word 'possession' connotes possession with knowledge or conscious possession. Thus presuming existence of mens rea. 17 Similarly, Section 98-B of the Gold (control) Act, 1968, specifically provides that in case someone is found in possession of illegal possession of gold i.e., constituting an offence under the Act, the Court shall presume the existence of the requisite culpable mental state. 18 The accused should always be considered to be innocent till his guilt is affirmatively and satisfactorily proved. This presumption of innocence continues throughout the trial and till the disposal of the case in the final court of appeal. Our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between clashing chance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish the marginal innocents. 19 Presumption of innocence is a human right. Such presumption gets stronger when a judgment of acquittal is passed. 20 Where an illegitimate child is found dead, there is no presumption that it was killed by its mother for such a presumption, if permitted, will destroy the presumption of innocence to which every accused is entitled. 21 No question of presumption arises in respect of facts which prosecution has to prove. Existence of facts cannot be presumed unless they come under Section 114. 22 Where the detailed account of the

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firing of shot at the deceased was not given in the F.I.R. by the injured witness, no adverse inference could be drawn against the prosecution case as the witness, apart from discomfort on account of injury, was likely to be upset at the unfortunate killing of his close relation before his eyes. 23 In a case of physical torture or abuses hurled on the newly wed daughter-in-law committing suicide, it was held that generally maltreatment is not done in public, hence no adverse inference could be drawn due to non-examination of neighbours. 24 Where heroin and cash were seized under the N.D. and P.S. Act in the presence of the accused from the same place but there was no material on record to link the amount with the sale proceeds of heroin, it could not be presumed that the cash seized was the sale proceeds of heroin. 25 Where three accused persons took the victim to the forest and gang-raped her there for one day and two nights and the opinion of doctor showed that signs of forcible sexual assault were present and evidence of the victim was fully corroborated by the medical evidence, the Court shall presume that the victim had not consented for the sexual intercourse. 26 Where in a case of molestation of a woman, the victim travelled with the accused in his official car, non-examination of the driver by the prosecution would not lead to draw an adverse inference against the prosecution. 27 When in a murder case, the accused falsely denied several relevant facts which had been conclusively established, the court would be justified in drawing an adverse inference against the accused. 28 The fact that an accused person does not give a detailed statement immediately after the accusation is levelled against him, could hardly be a circumstance from which a presumption of guilt can be drawn. 29 No presumption can be drawn against the accused for not examining himself. 30 Absconding of the accused immediately after the occurrence though a circumstance against the accused, by itself, can not lead to any presumption that he is the murderer. Presence of a person around and at the time and place of occurrence is not sufficient to raise a presumption that he committed the crime. 31 Mere presence at the time of commission of offence is not sufficient to show that the accused was a member of an unlawful assembly. 32 Where the evidence on record was sufficient to prove the prosecution case beyond reasonable doubt, no adverse inference could be drawn for its failure to examine another person. 33 Conspiracy under Section 120-B,I.P.C. cannot be proved merely on the basis of inferences. The inferences have been backed by evidence. If the material put forward by the prosecution is insufficient to bring home the guilt of the accused, then he is entitled to discharge. 34 Prosecution is not under obligation to explain the superficial injuries found on the person of the accused. No adverse inference can be drawn from non-explanation. 35 In absence of any evidence on record, mere presence of accused persons in the hospital does not lead conclusively to the fact that they were present there for treatment of their injuries. Hence non-explanation of alleged injuries on accused persons cannot lead to an inference that the prosecution has not presented a true version. 36 Where the conduct of the eye-witness, the young daughter of deceased who had seen her father and brother being murdered, was normal and natural in going to her uncle first instead of going to the Police Station with the Sarpanch of the village in that hour of distress, no adverse inference could be drawn against her conduct though her conduct was not as the High Court thought it should have been. 37

Where in a case of attack at odd hours, certain accused person was present with the other accused persons at the spot and he could offer no plausible explanation as to how and what for he was present there, it could be inferred that, though he was not an assailant, he was a participant in the mission of the accused who launched the attack. 38 Holding out of a threat of doing injury to another furnishes ground to presume that he who threatened the act was the perpetrator or instigator. 39 Unexplained possession of a jewel of a murdered person will be evidence u/s 114 not only regarding theft but also regarding the murder itself if the possession could not be reasonably got without committing the murder. 40 Ordinarily, when a man is found in enclosed premises at night, and when the explanation which he gives for being there is palpably untrue, the inference is that he was in the premises for some criminal purpose. 41 Where the accused was caught while he was entering a railway compartment and on search nine bars of gold with foreign markings were recovered, it was held that a presumption can be drawn that the gold had been illegally imported into the country u/s 111 (d) of the Customs Act and that the accused had necessary knowledge of the character of goods found in his

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possession. Where an accounts clerk in a bank was charged for withdrawing money from the complainant's accounts and for misappropriation, and in the receipt acknowledging the money the signature was proved to have been forged by the accused, it was held that a presumption for withdrawing the money under the signature for acknowledging the receipt of the money can be raised; and the accused was liable to be convicted.42 Where an accused refuses to participate in the identification parade or to give specimen of his foot prints an adverse inference can be drawn against him. 43 However, where the original foot moulds allegedly lifted from the place of occurrence were not sent to FSL, refusal to give sample foot moulds by the accused was of no consequence as no comparison was possible, no adverse inference could be drawn against them. 44 Where the dead body of the deceased was recovered much before recording of the statement of the accused under Section 27 of the Evidence Act, it was not possible to say that the dead body was recovered at the instance of the accused hence presumption under Section 114of Indian Evidence Act could not be drawn that the deceased was killed by the accused as there must be positive proof of a particular fact which provides a foundation for raising a presumption in favour of a particular event. 45 It was submitted before the Apex Court that recovery of the articles belonging to the deceased from the possession of the accused would raise a presumption under Section 114 of the Evidence Act . The Court held that application of such a presumption is limited. A presumption may be in respect of commission of theft or receipt of stolen property; if a person is found to be in possession of the property belonging to the deceased, but on such presumption alone, the accused could not be convicted for commission of murder, particularly when on the same evidence other persons had been given benefit of doubt. 46 Corroboration is necessary for the evidence given by a victim of rape and no presumption can be drawn in such cases and the prosecution has to establish the offence beyond all reasonable doubt. See in this connection Section 114A.

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Where an accused was charged u/s. 420 of IPC for issuing cheques for paying balance of goods to the dealer and they were dishonoured and no attempt was made by the accused to pay in sufficient amount for encashment of cheques, it was held that the accused could be presumed to have committed the offence u/s. 420, IPC . 48 When the prosecution fails to produce in the High Court, some articles connected with murder, though directed by the High Court to produce them, the presumption is against the State. 49 Where it was shown that there had been attempts to mutilate or disfigure a thumb impression, when the expert examined it for the second time in court, though it was untampered on the first occasion, presumption was held to arise that an attempt had been made by the accused or by some one on their behalf by to mutilate or disfigure the thumb impression. 50 Where the accused is found in possession of paddy, presumption that the accused was a dealer in sale of food grain or atleast in storing food grain for sale can reasonably be drawn if the accused is a person carrying on business. 51 From the fact that accused was found intoxicated at a particular place it cannot be presumed that he must have consumed liquor at that place. 52 Where the complainant alleged the cancellation of marriage by the accused for non-fulfilment of the dowry demand on the basis of a letter written to him by the accused, his failure to produce the alleged letter would invite adverse inference against him. 53 Where the abductors were armed with weapons and there was no explanation by the accused as to why the victims were abducted, it could be presumed that they were abducted with at least knowledge that they were likely to be murdered. 54 The accused was in the company of the deceased on the fateful night in the room of the hotel. The deceased died of suffocation/smothering for which the accused offered no explanation. It was held that presumption could be drawn under Section 114 of the Evidence Act that he was involved in the killing of the deceased. 55 Missing link .-- The chain of the circumstances established to prove the guilt of the accused must be so complete as to leave no reasonable doubt about the guilt of the accused. While it is true that there should be no missing link in the prosecution case, it is not the law that every one of the links must appear on the surface of the evidence adduced. Some of these links may have to be inferred from the proved facts. Those links may be termed as inferential links. In drawing those inferences or to be more accurate, presumptions, a judge of fact is required to have due regard to the common course of

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natural events, to human conduct and their relation to the facts of the particular case. If that is not so, Section 114 of the Evidence Act would become otiose, which in its own would make the laws ineffective. 56 Evidence of a witness.-- It is not proper in assessing the evidence to assume an explanation which the witness himself did not give unless a presumption can properly be based on Section 114 of the Evidence Act. In the instant case, the witness failed to depose that he found any trail of blood between the two places of assault. Presumption that in the light of the petromax he may not have noticed the same, could not be drawn. 57 (i) N.D. & P.S. Act Where the Officer conducting search and seizure failed to sign on the various documents alleged to have been executed at the spot, no presumption could be drawn that he was not present at the spot at that time or the accused was not apprehended. 58 By seizure of contraband in the search, conducted in accordance with law, presumption of unlawful possession of contraband can be raised under Section 54 of the N.D. & P.S. Act but in an illegal search. 59 Where the C.F.S.L. form filled up at the spot of the search and seizure, was deposited with the Moharar Malkhana and was not deposited in the Office of C.F.S.L. along with the sample for comparison, presumption that the sample was tampered with could not be ruled out. 60 Bias .-- In a case under ND&PS Act, the Deputy Superintendent of Police, a Gazetted Officer, reached the spot after the accused was detained and search was conducted in his presence after the accused gave consent for. He was not the Gazetted Officer proposing to effect the search, hence search could be conducted in his presence. No presumption of bias on his part could be drawn. 61 (j) Working Order Where the unlicensed Double Barrel Gun found in the possession the accused was of such a type that it could be fired by first filling it with gun powder and it was found by the Police Officer, trained in handling of guns, that its mechanism was in order, it could reasonably be inferred that it was in working condition and no evidence of an expert or armourer was required. 62 Mere presence of two empty cartridges in the gun could not lead to the presumption that the gun was in working order. 63 (k) Custom Where the whole land in a patti which was once owned by the common ancestor was at the time of regular settlement in possession of his descendants according to ancestral shares and none of the descendants had acquired any land in the patti by purchase or introduced strangers in it by selling any portion of his ancestral holding, it was held that an inference could be drawn from the circumstances of equality of holdings and from a reference to these in terms of ancestral shares in the settlement, that the land had devolved by descent on the descendants. 64 There is an initial presumption in favour of the correctness of entries in Riwaz-i-am . But when a prevailing custom giving rights to females in regard to inheritance is shown, the initial presumption about the correctness of rights to collaterals affecting the rights, of females contained in Riwaj-i-am would get weakened as the females have no opportunity of appearing before the revenue authorities who prepared Riwaj-iam. 65 Where some muslims accused were found stooping over the dead body of a cow and cutting pieces of flesh, it was held that, since the accused were muslims who would not eat meat of an animal which died a natural death, it may be presumed that cow was killed by them. 66 Presumption that a person act s honestly applies as much in favour of a police officer as of other person, and it is not a judicial approach to distrust and suspect him without good grounds therefor. 67 From a mere proof of the existence of a custom governing a community permitting brothers to take a common wife, it does not follow that there is a presumption that particular members of the community have acted in accordance with the custom. 68 There is no presumption that a particular tribe in a particular locality is governed by the custom which governs a great many other tribes in the same locality or in other localities. 69 The court cannot presume that the entire Hindu Law as regards

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inheritance and succession applies to Molesalam Muslim garsias of Baroda territory, unless pleaded and proved. 70 Whereas the entry of Taluqdar in List-2 is conclusive evidence that his taluqa is governed by the rule of devolution on single heir, the Supreme Court held that it also raises a presumption that family customs applying to a taluqa govern also the succession to non- taluqdari immovable property. 71 Since there is no presumption in respect of custom of adoption in Kashmir valley, the Section 50 of the Evidence Act cannot be pressed into service to establish the same. 72 (l) Death In the case of simultaneous death presumption may be drawn that deaths occurred in the order of seniority in age and the younger died later than others. 73 (m) Dowry death The Apex Court observed that a pregnant woman ordinarily would not commit suicide unless her relationship with her husband comes to such a pass that she would be compelled to do so. In the instant case, a married woman being in a family way and carrying for 5-6 months had committed suicide owing to torture caused by her husband for not meeting the dowry demand. 74 (n) Deeds There is no presumption about correctness of the recitals in documents. 75 No presumption of due execution can be made from the apparent regularity of execution appearing on the face of a will. 76 Where a person admitted his signature on the document but pleaded what he signed on a blank paper, no presumption can be drawn that he had knowledge of the contents. 77 Where a document written in English is signed by a person who does not know English, without any evidence that the contents were explained to him, the mere signature does not by itself prove that the signatory has understood the contents of the document, and there is no presumption that the executant understood the contents of the document. 78 Where a document is executed by an illiterate and ignorant person and the document contains unconscionable terms, it is difficult to draw the usual presumption arising under Section 114. 79 In the absence of any evidence, the Court would not drawn an inference that the actual price of the property is more than that of the mentioned in the sale-deeds. 80 Where there was an agreement preceding the sale-deed, containing a clause of reconveyance and the sale-deed was executed in consequence thereto, absence of reference to the agreement of reconveyance in the sale-deed would not lead to an inference that the said right was given up by the executant of the saledeed, unless there is a detailed plea and also evidence that the parties agreed to give it up before execution of the sale-deed. 81 Where the signature or thumb impression on a document is admitted by the signatory, the presumption is that he must have executed the document. 82 There is a presumption that a document is executed on the day mentioned in it as the date of execution. 83 When it is held that the document was executed with full knowledge of its content and nature, the presumption is that it has come into effect. 84 The practice prevailing in Madras Presidency is that where a person having a tangible interest in the property affected by a deed, attests the deed, his attestation should be taken as proof of his consent to and knowledge of the correctness of the recitals in the deed. 85 Where the certified copy of a sale-deed was obtained from the volume book maintained in the office of the Sub-Registrar, bearing his seal and certificate of it having been copied from it and compared and the scribe of original was also examined, correctness of the certified copy has to be presumed. 86 Where the plaintiffs claimed title over the suit property on the basis of the certified copy of the sale-deed executed more than 100 years ago in the name of their father, (the original being lost and the executant and attesting witnesses having died) and other documentary evidence viz. kist receipts and adangal extracts were found to be in the name of the plaintiff, these documents lead to inference that the document of saledeed might have come into effect and plaintiff's father obtained title which they inherited. 87 When the deceased executed the sale deed in question on 29.10.1971 and he died on 28.1.1972 of heart ailment, a presumption could have been raised to the effect that he must have required the amount of sale consideration for his medical treatment. 88 Mere delay in presenting sale deed for

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registration before the Sub-Registrar would not be sufficient to draw an adverse inference that the sale deed was ante-dated. 89 (o) Election Presumption of correctness attached to counting of votes is not destroyed merely because a single mistake in counting of ballot papers is defected. 90 Where it is found that the agents of a successful candidate indulged in act s of assault etc. at the polling station in his presence, it may be presumed that such acts were committed with the knowledge and consent of the candidate. 91 When an election was challenged on the ground of improper acceptance of nomination, there is no presumption that all those votes would have gone to the petitioner. 92 Where a candidate contesting an election was an advocate President of the Bar Association and an influential member of several organisations, and he had formal acquaintance with the returning officer, no presumption of letter's partiality towards the candidate can arise. 93 Where no evidence was produced to show that the advertising agency received payment for the adds. released from the elected candidate who pleaded them to be issued and paid for by different parties whom the petitioner failed to examine to ascertain the truth, no responsibility could be fastened on the elected candidate in respect of them. Further, for the publication of identical adds. in different newspapers on the same dates, no inference could be drawn that they were issued by the returned candidate. 94 (p) Personation at elections Only voting takes place inside the booth and a person, who enters the booth against whom an allegation is raised that he had applied for the voting paper, must certainly be saddled with the responsibility at least under Section 114 of the Evidence Act to explain why he entered the polling booth and for what purpose. Normally, a person enters the booth only for casting his vote, unless he has a valid explanation otherwise. If he hands over a slip showing the name of a voter other than himself the irresistible inference to a prudent mind can only be that he was applying for voting paper in the name of such person. Section 114 of the Evidence Act permits and mandates Courts to draw reasonable inferences based on their experience of men and matters in life. 95 (q) Grant The word ' Devadayam ' is not decisive as to whether inam was granted to temple or was personal inam burdened with service. No presumption whether grant is one in lieu of wages or one burdened with service, may be drawn. 1 There is no presumption that what was granted was only the melwaram right, if the land was not fit for cultivation at the time of the grant. 2 Where the grant is in favour of deity by way of inam , there is no presumption that it is in respect of either Kudivaram or Melwaram . 3 There is no presumption that the grant was burdened with service of rendering puja from the fact that the grantees rendered puja . 4 (r) Settlement A land settlement is presumed to be valid and has de facto operation unless declared void by the competent authority. 5 (s) Status Where a Govt. order specified certain societies as co-operative societies for certain purposes on the basis of their financial position and share capital and the Govt. included a society's name within that ambit, there would be presumption that the Govt. had considered its financial position and share capital. 6 (t) Prevention of Corruption Act Under Sections 4(1)Prevention of Corruption Act , it has to be presumed that the amount, recovered from the accused was received by him as illegal gratification though such presumption is rebuttable. 7 The accused may rebut such presumption by showing a mere preponderance of probability in his favour. 8 Under Prevention of Corruption Act a presumption of accepting gratification arises only when the prosecution proves that whatever the accused received was 'gratification'. 9 To raise a presumption

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u/s. 4 (1) of Prevention of Corruption Act the prosecution has to prove that the accused has received "gratification other than legal remuneration", then receipt of "money" is sufficient to raise the presumption.10 Presumption arises as soon as it is shown that the accused had received the stated amount and such amount was not the legal remuneration. It is not necessary that before presumption arises prosecution must prove that money was paid as a bribe. See Prevention of Corruption Act (1947).S. 4,AIR 1968 SC 1292 : 1968 Cr LJ 1484 : 1968 Lab IC 1412. Where accused received money which was not legal remuneration presumption can be raised under Sections 4(1) of the Prevention of Corruption Act that it was a bribe.11 In a case under Prevention of Corruption Act (1947)Section 5(2) against a public servant for possession of assets disproportionate to his income, the prosecution need not disprove all possible sources of his income. 12 Presumption illegal gratification raised under Sections 4(1) of the Prevention of Corruption Act can be rebutted by the accused by showing mere preponderance of probability in his favour. 13 The expression "shall be presumed" employed in Sections 20 of the Prevention of Corruption Act , 1988 has an import of compulsion to presume as to the acceptance of bribe as motive/reward for doing/not doing of an official act with the condition precedent of the proof of "acceptance or agreed to accept" any gratification.14 (u) Prevention of Terrorism Act Section 52(2) & (4) of the Prevention of Terrorism Act (15 of 2002) (since repealed) puts an obligation to inform the arrestee of his right to consult a lawyer and permit him to meet the lawyer. The avowed object of such prescription was to introduce an element of fair and humane approach to the prisoner in an otherwise stringent law with drastic consequences to the accused. It cannot be said that the violation of these obligations has no relation and impact on the confession. It is too much to expect that a person in custody in connection with POTA offences is supposed to know the fasciculus of the provisions of POTA regarding the confessions and the procedural safeguards available to him. The presumption should be otherwise. The lawyer's presence and advice, apart from providing psychological support to the arrestee, would help him understand the implications of making a confessional statement before the Police Officer and also enable him to become aware of other rights such as right to remain in judicial custody after being produced before the Magistrate. 15 (v) Hindu Law--Applicability Where a Hindu family migrates to another province governed by another law, presumption is that it carries with it the law and custom prevailing at the time of migration in the territory from which the family migrated. 16 (w) Presumption of Union The joint and undivided family is the normal condition of Hindu society. An undivided Hindu family is ordinarily joint not only in estate but in food and worship. 17 The presumption therefore is that the members of a Hindu family are living in a state of union, unless the contrary is established. 18 This general principle has no application in cases where one of the coparceners was admittedly separate from the other member of the family. 19 Merely because members lived and worked at different places but owned a joint family house in common it cannot be said that they did not form a joint Hindu family. 20 The strength of the presumption necessarily varies in every case. The presumption of union is stronger in the case of brother 21 than in the case of cousins, and the farther you go from the founder of the family, the presumption becomes weaker and weaker. 22 Brothers may be presumed to be joint but conclusion of jointness with collaterals must be affirmatively proved. 23 The presumption in the case of father and son is in favour of jointness. 24 When one of the sons separates from the family, the other sons if they are minor will be presumed to have remained jointly with their father. 25 Where there is no reason to disbelieve evidence adduced by plaintiff to show that the Tharwad is undivided and that the original first plaintiff was the Karnavan and this evidence is unrebutted, it will be presumed that the original first plaintiff was Karnavan and that the Tharwad is undivided. A Hindu family will be presumed to be joint unless the contrary is established. 26

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However, it has been held that merely because a person allowed his brother to stay with him and after the brother's death brought up his orphaned children it could not support the inference of a subsisting joint family between them. 27 The man who has severed his union with his brothers, if he has children, becomes the head of a new joint family, composed of himself and his children, and their issue. And so, property, which was the self-acquisition of the first owner, as soon as it descends to his heirs becomes their joint property, with all the incidents of that condition. 28 If one of the coparceners of the joint family separated and had his share of the property separated, there is no presumption that the other members of the family continued to be joint. Then the burden is on the person who asserts a particular state of things to prove the same and the question depends on the facts of each case. 29 There is no presumption that a joint family possesses joint property.

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(x) Adoption Where the execution and registration of the adoption deed were duly proved and performance of adoption ceremonies were also mentioned in it, simply because the ' pundit ' was not examined, presumption of its validity could not be negatived. 31 Where an adoption was recognized by all members of the family for over fifty years, the strong presumption would be in favour of its validity. 32 Where a registered adoption deed was based on the signatures of natural parents as well as adoptive parents and the name of adopted father was written in school register of the child and which was also corroborated by the evidence of the witness, the Court should presume the adoption as valid and the burden to disprove the adoption would be on the other party. 33 Presumption as to the validity of a registered document relating to adoption is rebuttable on the basis of evidence. 34 (y) Joint Property, not a Pre-Requisite Where the insurance policies are taken in the individual names from joint family funds, the presumption is that the income of said policies would become a joint family property. 35 There is a presumption that every Hindu Family which is joint in food, worship and residence is a Joint Hindu Family, but there is no presumption that the properties owned by the members of such Joint Hindu Family are the Joint Hindu Family property. 36 There is no presumption that a family, because it is joint, possesses joint property. 37 Possession of property is not under the Mitakshara law a necessary requisite for the constitution of a joint family 38 though where persons live together, joint in food and worship, it is difficult to conceive of their possessing no property whatever, such as ordinary household articles which they would enjoy in common. Hindu law does not require that properties of a joint family should be immovable properties or that they should be of appreciable value 39 . (M AYNE ' S H INDU L AW , para: 278, page: 548). However, where there is no evidence on record to show that the partition between the members of a joint family has taken place, the property would be presumed to be a joint family property. 40 A Hindu, even if he be joint, may possess separate property. Such property belongs exclusively to him. No other member of the coparcenary, nor even his male issue, acquires any interest in it by birth. On his death intestate, it passes by succession to his heirs and not by survivorship to the surviving coparcener. 41 The burden of proving that a particular property is joint family property is on the person who claims that it is joint family property. Where the possession of a sufficient nucleus was either admitted or proved, acquisition made by a member is presumed to be joint family property. Then the burden shifts to the person claiming the property as his self-acquisition property. 42 After it has been proved that the property concerned was purchased from the joint family funds, only then the question of presumption that it was joint family property would rise. 43 Where the father and the sons, not a Joint Hindu Family, carried on business in partnership and property was purchased in the name of the eldest son, presumption would be that it was the property of the son in whose name the purchase was made. If the consideration was paid from the business, further presumption would be that the same was paid from the share of the concerned partner. 44

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Where the father of the defendants and that of the plaintiff are shown to have hailed from a common ancestor, the presumption would be that the land in question devolved upon both the branches and not on one branch alone. Amongst the co-sharers the inference of ouster cannot be lightly drawn, and the possession of one co-sharer will enure for that of another unless such ouster is pleaded and proved by specific evidence. 45 (See para: 311, pages 583 to 586 and para 312, pages 587 to 589 of Mayne's Hindu Law 13th Edition). The eldest member of a Joint Hindu family is presumed to be its Manager. 46 Where there was no evidence that the karta of the joint family had no other source of income and his widow brought evidence on record that the suit property was acquired out of the funds of the family, presumption arises that the said acquisition enured to the benefit of the family and hence was co-parcenary. 47 (z) Burden of Proof Where a sale or mortgage is made by a father, the burden of proof is upon the alienee to show that the alienation is either for an antecedent debt or was made for legal necessity or the benefit of the family. Where it is proved that the alienation was for an antecedent debt, it is for the sons to show that the debt was contracted to the knowledge of the lender for immoral or illegal purposes 48 , for it is strictly not a case of alienation by a managing member for a legal necessity or for the benefit of the estate. Where an alienation of joint family property is made by a manager, the burden of proof lies upon the person who claims the benefit of the alienation to establish one of two things: (1) the transaction was in point of fact justified by legal necessity or was for the benefit of the joint estate, or (2) he had made reasonable and bona fide inquiry as to the existence of the necessity and satisfied himself that the Manager was acting for the benefit to the estate. 49 "The burden remains heavily upon the mortgagee to establish compliance with the conditions under which the Hindu law permits the interest of the minor members to be taken from them". But if the sons fail to produce family account books proved to be in their possession, the onus shifts on to them on account of the presumption arising under Section 114(g) of the Evidence Act against them. 50 If the purchaser had acted honestly, if the existence of a family necessity for sale was made out and the price was not unreasonably low, the purchaser was not bound to account for the application of whole of the price 51 . A lender of money may reasonably be expected to prove the circumstances connected, with his own particular loan, but cannot reasonably be expected to know, or come prepared with proof of antecedent economy and good conduct of the owner of the joint family estate. The proper presumption to be made will vary with circumstances, and must be regulated by, and dependent on them. Thus, where the mortgagee himself, with whom the transaction took place, is setting up a charge in his favour made by one whose title to alienate he necessarily knew to be limited and qualified, he may be reasonable expected to allege and prove facts presumably better known to him than to the infant heir, namely, those facts which embody the representations made to him of the alleged needs of the estate, and the motives influencing his immediate loan (The representation by the Manager accompanying the loan are part of the res gestae and evidence against those whom the Manager represents). It is obvious, however, that it might be unreasonable to require such proof from one not an original party, after the lapse of much time and enjoyment, and apparent acquiescence 52 Where a new security is substituted for an older one, or where the consideration for the older one was an old precedent debt of an ancestor not previously questioned, a presumption in favour of the validity of the transaction would in proper cases be reasonable. 53 It depends on the facts and circumstances of each case to the extent and nature of the enquiry that should be made by a lender whom the Manager approaches for the purposes of alienating joint family property in order to secure a loan 54 It is not sufficient for the creditor simply to show that the money borrowed was spent for a family purpose which ordinarily is met by family income. He will have to further show that circumstances existed at the time which justified the borrowing. 55 Regarding the burden of proof in the case of an alienation by a Hindu widow. See paras 691 to 693, pages 915 to 917 Mayne's Hindu Law 13th Ed.

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Any person who seeks to displace the natural succession of property by alleging an adoption must discharge the burden that lies upon him by proof of the factum of adoption and the performance of any necessary ceremonies as well as all such facts as are necessary to constitute a valid adoption. 56 It is not necessary in all cases to produce direct evidence of the fact of the adoption; where it took place long ago, and where the adopted son has been treated as such by the members of the family and in public transactions, every presumption will be made that every circumstance has taken place which is necessary to account for such a state of things as is proved, or admitted, to exist. 57 In case of presumption of valid marriage, it was pleaded that the marriage was prohibited by Hindu Bigamous Marriage Act, it was held that onus to prove the plea was on the party who sought to rebut the presumption. 58 Where the burden to prove bona fide purchase by the subsequent purchaser was illegally shifted to the plaintiff without notice, adverse inference had to be drawn against the subsequent purchaser. 59 Onus was on the Insurance Company to prove its allegation that the driver of the vehicle was not holding a valid driving licence on the date of accident and if the driver did not appear in spite of summons, adverse inference could be drawn against him. 60 The question of adverse possession, now-a-days can be applied by way of sword or shield. If it is a suit of adverse possession, it is definitely a sword and if it is a defence then it will be treated as a shield. The onus to prove adverse possession even in defence case either as a sword or shield lies on the defendant. 61 There are certain cases in which statutory presumptions arise regarding guilt of the accused but burden in those cases is upon the prosecution to prove the existence of facts which have to be present before the presumption is drawn. The accused has to rebut the presumption but the onus upon the accused is not as heavy as normally is upon the prosecution to prove the guilt of the accused. 62 (aa) Partition Where there has been a partition, the presumption is that it was complete both as to parties (1) and (2) property. The presumption however is one of fact and not of law and will vary with the circumstances of each case. 63 (ab) Insanity Law presumes every one to be of sound mind until the contrary is proved. Burden of proving that he was not criminally responsible for crime by reason of his unsound mind is on the accused. 64 Where previous insanity is admitted, presumption of sanity at the time of commission of act would be greatly weakened. 65 When the opinion of the medical expert is in favour of sanity, no adverse inference could be raised merely because the expert was not examined. 66 (ac) Intention and Knowledge Every person is presumed to know the natural consequences of his act s. 67 Where a Police Constable beat an old man of sixty years weighing only 38 kg. which resulted in breaking of his ribs leading to his death, it would be presumed that he intended the consequences of act. 68 Intention of murder can be inferred from the nature and number of injuries. 69 In P HIPSON 13th Ed, para: 41-20, page: 1056 it is observed: "It was formerly thought that a man is presumed to intend the natural consequences of his act s; and where this presumption is conclusive no evidence contra will be allowed, though it is otherwise where it is disputable. But although this presumption was given the support of the House of Lords 70 , the position, in criminal cases at least, is that no such presumption exists any more." In criminal cases, some of the doubts and difficulties which arose as a result of the speeches in the House of Lords in DPP v. Smith 71 have been resolved by Section 8 of the Criminal Justice Act, 1967.

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"A Court or jury, in determining whether a person has committed an offence--(a) shall not be bound in law to infer that he intended or foresaw a result of his act ions by reason only of its being a natural and probable consequence of those actions; but (b) shall decide whether he did intend or foresee that result by reference to all the evidence drawing such inferences, from the evidence as appear proper in the circumstances. "

Paragraph (b) has been interpreted, however, as "no more than a legislative instruction that in considering their findings on intention or foresight the jury must take into account all the relevant evidence." As a general rule, proof that a person knew that an act was likely to have certain consequences is relevant evidence which may found an inference that he intended those consequences when he did the act. 72 It seems, however, that in cases of murder a person can only be found to have intended a consequence which he did not desire if he foresaw the consequence as a virtual certainty, and that in such cases "a result foreseen as virtually certain is an intended result." 73 But this does not contradict the proposition that where it is relevant to prove that a consequence was desired it is relevant to prove that the person knew of the likelihood of such a consequence. In civil cases, it seems that the Courts will act on the presumption that a man intends the natural consequences of his acts." 74 If it does survive in civil cases, it is clear that where there is any doubt as to the consequences of the act, evidence may be adduced on the subject. Thus, where A is alleged to have passed off his goods as those of B, and a comparison of the goods, explained by surrounding circumstances shows that A's goods are calculated to deceive, the presumption will be conclusive, and evidence of A's intention to deceive or the reverse will be inadmissible; while, if such comparison and explanation leave the matter doubtful, his actual intent may be shown 75 . Departure from England without making business arrangements necessarily has the effect of defeating, or at least of delaying, creditors, and, therefore, is in itself proof of intent to produce that effect but evidence may be brought to show that in fact there was no such intention. 76 Where the record of the case was not produced in the Court by the Collector in spite of sufficient opportunities, adverse inference that the record was intentionally withheld could be drawn. 77 Section 8 of the Criminal Justice Act, 1967 78 provides that a court, or jury, in determining whether a person has committed on offence, is not bound in law to infer that he intended or foresaw a result of his actions by reason only of its being a natural and probable consequence of those act ions. Rather, it must decide whether he did intend or foresee that result by reference to all the evidence, drawing such inferences from the evidence as appear proper in the circumstances. " Section 8 deals with the matter of evidence.....it does not lay down in what cases the establishment of guilt is dependent on proof of intention or foresight or any other mental state". 79 The presumption of intention is not a proposition of law, but a proposition of ordinary good sense. The burden to prove intention is on the prosecution. 80 Where a prosecution is lodged with knowledge that accused has committed no offence, presumption of malice can be made. 81 Where the dead body of the victim of rape was found on the cot of the accused inside his house, in the absence of any satisfactory explanation from him, implication of the circumstance is definitely adverse to him as it must be in his special knowledge. 82 Where the landlord sent notice to the tenant offering him the reconstructed premises which and subsequent notices also the tenant refused to accept, it raises presumption that the tenant had the knowledge of the offer of the premises to him. 83 In case of offence of abetment of suicide by wife, the family members and the friends of the husband were present at the house of the husband where her dead body was kept and also at the cremation ground. Mere their such presence would not attract Section 201 , IPC (screening the offender) unless they had the knowledge of the husband having committed the offence. By their mere presence, no presumption could be drawn that they had such knowledge and tried to screen the accused husband by causing disappearance of evidence. 84 (ad) Common intention Causing injuries to the deceased in the process of removal of ornaments from the person of the deceased was inextricably inter-linked with the commission of theft which is an ingredient of robbery.

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The facts that the booty was distributed among the three accused and that they had concealed the robbed articles, clearly reveal that the three accused shared the common intention to commit robbery which could be presumed, but as they carried no weapons and the medical evidence showed the use a heavy stone in causing the injuries about which two views could be possible due to which actual details of occurrence could not be known, the Court held that the presumption under this section could not be extended to find the accused guilty of murder with the aid of Section 34 of IPC . 85 (ae) Lost Grant When a person is found in possession and enjoyment of land for a considerable period of time under an assertion of title without challenge, Courts are inclined to ascribe a legal origin to such possession, and when on the facts a title by prescription could not be sustained, a presumption could be made that the possession was referable to a grant by the owner entitled to the land, but that such grant had been lost. Such a presumption is made for securing ancient and continued possession, which can otherwise be reasonably accounted for. But it is not a ' presumptio juris et de jure ' and the Courts are not bound to raise it, if the facts in evidence are against it. So also the presumption is not made if there is any legal impediment to the making of it. There will likewise be no scope for this presumption, if there is no person capable of making a grant, or if the grant would have been illegal and beyond the powers of the grantor. 86 The presumption of lawful title is not a mere branch of the law of evidence. Courts have recourse to it in the absence of evidence. Their Lordships of the Privy Council observed: "The matter is one of presumption, based on the policy of law, but even considered as an inference from proved facts, the title presumed is a thing, which may well be regarded as likely to have happened. At the same time it is not a presumption to be capriciously made, nor is it one which a certain class of possessor is entitled to de jure. In a case such as this, where it is necessary to indicate what particular kind of lawful title is being presumed, the court must be satisfied that such a title was in its nature practicably and reasonably capable of being presumed, without doing violence to the probabilities of the case.....It is the completion of a right, to which circumstances clearly point, where time has obliterated any record of the original commencement." 87 In order to claim a right of occupancy based on the ground of presumption of lost grant, it is necessary and incumbent on the tenants to trace the history of different lands in possession of different tenants and to establish before Court the length of possession. 88 (af) Marriage--Husband and Wife The presumption of law is in favour of marriage and against concubinage when a man and a woman have cohabited continuously for a long number of years 89 and omission to mention her name and that of her sons in the will executed by the husband's father and also the absence of their reference in the compromise entered into between her husband and his brothers do not destroy the presumption of legality of their marriage. 1 Only because a man and a woman cohabiting for a long period as husband and wife failed to adduce sufficient evidence of the fact of their marriage, they were not debarred to avail the presumption available to them under Section 114 of the Evidence Act . 2 Where the parties consistently, continuously and openly lived as husband and wife, cohabited together for a long period and had children and were regarded and recognised by friends and relatives as husband and wife, it furnishes a clear evidence of marriage raising the presumption unless it is shown that the connection started in mere concubinage. But before raising such a presumption, it is necessary that the requisite conditions of a valid marriage stood satisfied in the sense that such a marriage was not prohibited under the law 3 such as either spouse had no subsisting earlier marriage; 4 and onus to prove that the couple was not legally married lies on the person who disputed their marital status. 5 Continuous cohabitation of a man and a woman as husband and wife and their treatment as such for a number of years may raise the presumption of marriage. But the presumption which may be drawn from long cohabitation is rebuttable, and if there are circumstances which weaken or destroy that presumption, the court cannot ignore them. 6 It was held that the rebuttal cannot be evidence of mere probability. 7 Alongwith the presumption of validity of marriage on the basis of long cohabitation, the formality and customs for valid marriage would also be presumed to have been performed. 8

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When a person is already married, no presumption of a second marriage arises by reason of long cohabitation 9 unless divorced. 10 In absence of any proof that the custom prevalent in their society permitted second marriage during the lifetime of the first husband and that any ceremony was performed for holding that marriage, only long cohabitation would not give her the status of wife. 11 Mere continuance of cohabitation is not sufficient to raise a presumption of marriage. To raise such a presumption, the continued cohabitation must be under circumstances from which it could reasonably be inferred that the cohabitation was as man and wife without obstacle to the form of marriage being gone through between them. 12 Where the connection starts in mere concubinage the presumption does not arise. In such a case the presumption would be that the illicit connection continued till marriage is proved. 13 Cohabitation with public women cannot give rise to a presumption of valid marriage. 14 A Kudipravarthi woman (i.e. Devadasi ) can contract a legal marriage. A rebuttable presumption of marriage from long cohabitation can be drawn in her case just as in the case of any other Hindu woman. 15 In the absence of any contention that a particular ceremony is necessary in the re-marriage of a widow with a second husband, the fact that the woman lived for a considerably long time with the person as his wife, will be sufficient to establish that she was the wife of that person. There would be a presumption of re-marriage in favour of the lady. 16 Where there were documentary evidence like the birth certificate and the marriage invitation and tax receipt in the name of plaintiff after his alleged father's death, it would be sufficient to draw the presumption of marriage between his mother and the alleged father which would not be rebutted merely because the plaintiff had not signed a document alongwith his alleged father and his other children and also because the alleged father had denied the marriage in reply to a legal notice to him by the plaintiff. 17 Where a person signs in the school admission register as father of children, the presumption would be that there is valid marriage between the person and the mother of those children. 18 Where marriage and the ceremonies observed at the time of marriage have been proved, it may be presumed that all legal formalities have been complied with. 19 Where factum of marriage was otherwise proved from evidence of witnesses and long cohabitation but the marriage register could not be produced for which satisfactory explanation was given, the factum of marriage was held to be proved. 20 When celebration of some form of marriage is established there is justification of presumption of legal marriage. 21 There is no presumption that the property owned or held by a woman necessarily belongs to her husband or that the money for the acquisition of such a property had been supplied to her by the husband or somebody else. 22 An able-bodied husband is presumed to be capable of maintaining his wife and children. 23 Incapacity to consummate may be assumed from persistent refusal by the husband to consummate marriage. 24 It is one of the strongest presumptions based on human experience that a woman must be unchaste when her children say so in the court, though the said presumption is rebuttable. 25 In a petition for dissolution of marriage on the ground that the respondent is incurably of unsound mind, it is for the petitioner to establish such unsoundness of mind. There is no provision in law for compelling the respondent to undergo medical examination. However, an adverse inference can be drawn against the respondent for refusing to submit to medical examination 26 but if she did not go for medical examination for want of fund, no adverse inference could be drawn against her for it was the duty of the husband to pay the expenses for such examination. 27 In a divorce proceeding on the ground of allegations of adultery against the wife, onus was on the husband to prove his allegations in which he failed. The wife was given an opportunity to mend her ways and thereafter husband and wife lived together. Condonation of offence of adultery by the husband could be presumed. 28 In a matrimonial suit brought by the husband, non-production of the compromise petition of an earlier occasion by the husband in evidence would raise a presumption about a state of affairs adverse to the petitioner. 29 Where a woman alleged to be married is not examined, inference is that, had she been examined, she would not have supported the plea of her marriage. 30

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If the marriage is registered, it also provides evidence of marriage having taken place and would also provide a rebuttable presumption of the marriage having taken place. Though, the registration itself cannot be a proof of valid marriage per se , and would not be the determinative factor regarding validity of a marriage, yet it has a great evidentiary value in the matters of custody of children, right of children born from the wedlock of the two persons whose marriage is registered and the age of the parties to the marriage. As a natural consequence, the effect of non-registration would be that the presumption which is available from registration of marriage would be denied to a person whose marriage is not registered. 31 (ag) Divorce In a case of child marriage, the eight year old minor wife never lived with her husband and marriage was never consummated. Rather, she left her husband and lived with another person for a long period of time and had six children from him, the divorce being permissible in that community, it was presumed that her childhood marriage had terminated. 32 (ah) Legitimacy When a woman lives for a number of years in close association with a man and bears children, who are acknowledged by the man as born to him, and the relations and other persons of the village treat them as such, there is a presumption of legitimacy. 33 Where consummation of marriage and access of husband and wife were admitted and the medical opinion supported the wife, legitimacy of the child was presumed even after refusal of wife to submit to DNA Test. 34 If a child is in possession of affiliation acknowledged by the parents and has repute in the society, legitimacy should be presumed. 35 A youth of 15 years is not incapable of procreation. Hence from mere age alone, no conclusive inference that he could not possibly have been the father of a child can be made. 36 (ai) Partner Where a lease is renewed by a partner there is a presumption that the renewal is for the benefit of the other partners. 37 (aj) Principal and Agent An agent's authority to bind the principal may be presumed. Onus is on the principal to prove that the agent's authority is limited. 38 There is no presumption that the husband acted as an agent of his wife, when he sold the properties of his wife under a contract, unless it is proved that he had either express or implied authority to sell the property. Implied authority within the meaning of Section 187 Contract Act arises from the conduct or situation of the parties or necessity of the family. 39 Where a trade union takes action, the presumption is that it has taken such act ion with the support of its members and in a representative capacity. 40 (ak) Money Transactions In the absence of a receipt for the deposit of money no inference can be drawn that the money was deposited as it would throw very great doubt about the deposit. 41 Payment by means of demand draft cannot be presumed to be a loan.

42

The fact that a certain sum is paid towards principal on a certain date does not justify the conclusion that interest up to that date has been paid. 43 Where in a case of default of payment in purchase of a T.V. on credit basis, the vendor pleaded that the purchaser had agreed to pay Rs. 100/- as penalty for each default in payment of installments but he failed to produce the said agreement, an adverse inference could be drawn against him. 44 Where in a case for recovery of loan, the bank produced the certified copies of the banker's book to prove the loan and also examined its employees as witnesses, the debtor firm did not examine its partner who was conservant with the firm's dealings and also did not produce its account books, adverse inference could be drawn against the firm. 45

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If some of the transactions on a particular day, as entered in the account books/ledgers, have been proved, it does not imply that all the transactions on that day have been proved. 46 (al) Negotiable Instruments Act (Dishonour of Cheque) Presumptions both under Sections 118(a) and 139of the Negotiable Instruments Act , 1881 are rebuttable in nature.47 The presumption that the cheque was drawn for the discharge of liability of the drawer is a presumption of law, though rebuttable, and ought to be raised by the Court in every case. 48 Under Sections 139 of the Negotiable Instruments Act s, 1881, it is presumed that a cheque is issued in discharge of any debt or other liability.49 A cheque was issued to the complainant sharebroker in share dealing and it was presumed that the same was issued in discharge of debt. However, the accused pleaded that he had issued the cheque by way of security and not towards any amount due to the complainant in share transactions. The Supreme Court held that on facts, the said defence was acceptable as probable. In this regard the Court took note of the practice prevailing in the said business. Hence, the Court held that the same would not come within the purview of Sections 138 of the Negotiable Instruments Act . 50 Admission of signature on the cheque by the accused may in an appropriate case persuade the Court to draw permissive presumptions of fact under Section 114 of the Evidence Act, but certainly the right of the accused to contend that a blank signed cheque was mis-utilised by the payee cannot be taken away by such mere admission of signature. 51 Under Section 114 of the Evidence Act appropriate inference and presumptions can be drawn in each case on the question of execution and issue of the cheque depending on the evidence available and explanations offered. 52 While under Section 114 of the Evidence Act, it is open to the Court to draw or not to draw a presumption as to existence of a fact from the proof of another fact, the Court is, under Section 139 of the N.I. Act, obliged to raise a presumption. Thus, in the case of a presumption of law, the Court has no option, but to raise presumption provided that the facts, required for raising such a presumption, exist. While a presumption of fact can be rebutted by an accused by offering an explanation, which is reasonable and plausible, a presumption of law cannot be discharged by explanation alone. What must be proved is that the explanation is true. 53 Where the service of notice had not been effected in terms of the Negotiable Instruments Act , no presumption of service of the same was raised.54 Presumption of deemed service of notice should be within a reasonable time. It should be deemed to have been served at best within a period of thirty days from the date of issuance thereof. 55 (am) Mortgage Though there is no presumption of law that mere deposit of title deeds constitutes a mortgage, courts may presume under Section 114 of the Evidence of Act that under certain circumstances, a loan and a deposit of title deeds constitute a mortgage. 56 Where possession of the mortgaged property repeatedly changed hands, no presumption can be drawn that the possession of such other person was without any right and he was in unlawful possession, as he may be an assignee of mortgage. 57 No presumption as to the value of the property mortgaged can be raised from the amount of the loan advanced. 58 Where the original of the mortgage deed was filed by the defendant, the defendant was entitled to invoke the presumption under Section 114(i) of the Evidence Act in his favour to show that the document was returned by the mortgagee in token of discharge but the plaintiff might rebut the same by showing with material evidence that the document was lost and the defendant got it by theft. 59 (an) Pledge

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The National Saving Certificate, being the property of the post office, can be pledged only by it. It having been pledged by the Post Master in favour of a party, presumption that the pledging is proper arises. 60 (ao) Mohammedan Law As the great majority of Muslims in India follow the Hanafi School of Sunni law, the Courts presume that Muslims in India follow the Hanafi law unless the contrary is alleged and proved. 61 The presumption of advancement applicable to deposits in the joint names of father and daughter cannot be extended to Mohammedans in India. 62 Presumption of lawful marriage among Muslims can be drawn from continuous cohabitation. 63 Regarding a Muslim marriage it was held that, in the absence of evidence to the contrary, it must be presumed that the marriage was duly solemnized and that words of acceptance were uttered by the husband. The presumption is fortified by the fact that marriage has been consummated. 64 Though there is no presumption in favour of custom of adoption in Mohammedan Law but the presumption in the matter of inheritance is in favour of personal law of Mohammedans, hence the custom is a question of fact which is liable to be proved by the party relying on it, by adducing positive evidence. 65 The presumption arising in respect of documents taken from a pardanashin woman will not be applicable only for the sole reason that the woman is a Muslim, particularly when there is no pleading that she used to wear pardha and because of exclusion was incapable of knowing the effect of a transaction like the gift deed. 66 (ap) Negligence No presumption of negligence can be drawn in a civil case simply because the person was convicted in a criminal case for negligence. The Maxim res ipsa loquitur (things speak for themselves) used in cases of tort in civil cases is not applicable in criminal cases. The Supreme Court observed: "The primary reasons for non-application of this abstract doctrine of res ipsa loquitur to criminal trial are: Firstly, in a criminal trial, the burden of proving everything essential to the establishment of the charge against the accused always rests on the prosecution, as every man is presumed to be innocent until the contrary is proved, and criminality is never to be presumed subject to statutory exception. No such statutory exception has been made by requiring the drawing of a mandatory presumption of negligence against the accused where the accident "tells its own story" of negligence of somebody. Secondly, there is a marked difference as to the effect of evidence, viz. the proof in civil and criminal proceedings. In civil proceedings, a mere preponderance of probability is sufficient, and the defendant is not necessarily entitled to the benefit of every reasonable doubt; but in criminal proceedings, the persuasion of guilt must amount to such a moral certainty as convinces the mind of the court, as a reasonable man beyond all reasonable doubt. Where negligence is an essential ingredient of the offence, the negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgement." 67 As pointed out by L ORD A TKIN in Andrews v. Director of Public Prosecutions 68 "simple lack of care such as will constitute civil liability, is not enough" for liability under the criminal law "a very high degree of negligence is required to be proved. Probably, of all the epithets that can be applied 'reckless' most nearly covers the case". 69 It was held by the Supreme Court that the mere fact that a person was knocked down by a motorist and killed, there can not be any presumption of negligence on the part of the driver. There must be clear proof showing that there was a direct nexus between the death of person and the rash or negligent act of the accused. 70 Where plea of sudden failure of lights and foggy weather as cause of accident was not established, negligence on the part of the driver could be presumed. 71 Where a car, travelling on a sufficient wide road and having no obstruction or vehicle on road, after leaving cemented and tar road and thereafter the kacha road, hit a tree and the report of the Motor Vehicle Inspector showed that the accident did not occur due to any mechanical fault, it would be presumed that it occurred due to negligence of the driver of the car. 72

747

Where a fire explosive, in a display of fire works, fell in the midst of crowd and injured an on looker, it was held that a presumption of negligence on the part of person making and displaying the fire explosive, may be raised. 73 Where a consignment of mangoes reached the destination two days later than the reasonable time, it was held that a delay of two days is not unreasonable and no presumption that damage was due to delay of two days could be drawn. 74 "The law will conclusively presume that the carrier has been guilty of negligence unless he can show that the loss or damage was occasioned by what it technically called the "act of God," or by King's enemies. The same principle applies to goods under the custody of a stage-coachman, a cabman, or even a gratuitous bailee". (T AYLOR ON E VIDENCE (See 187)). As a rule negligence is not to be presumed. But in the case of common carriers or bailment, and loss, law presumes negligence on the part of the bailee. 75 In a suit against the railway for damages for loss of goods in transit, non-disclosure as to how the consignment was dealt with in transit by the railway administration leads to presumption of negligence on the part of the railway. 76 In a suit for loss, damage or non-delivery of goods, filed against the carriers, the presumption is in favour of the plaintiff and against the defendant that he is liable to make good the loss. He can rebutt the presumption by establishing that the loss was caused by the act of God or inevitable accident or something beyond his control. 77 Mere fact that rain water entered the wagon and caused damage would not fix liability on the railway. 78 In a suit for damages for short delivery alleging negligence against the railway, inference of negligence or misconduct can be inferred, if the railway fails to disclose to consignor how the consignment was dealt with in transit. 79 Where a consignment of goods was sent by railway and the goods were either lost or damaged because of the derailment, it was held that a rebuttable presumption of negligence on the part of the railway employees arises. 80 Where there is an arrangement between two railways by which one act ed as agent of the other in entering into contract of carriage an act of one is binding on the other, the fact that goods were placed in charge of one railway and not returned by the other raises a presumption of negligence on the part of the railway and it is for them to rebut that presumption. 81 Consignments delivered to a railway, may have to travel on railways of two or three different administration, it is not safe to presume that a particular consignment was received intact by each railway from the previous railway. 82 Where in a rental premises, the tenant stored combustible substances and fire took place, negligence can be presumed unless rebutted. 83 The possibility of stealth by a person other than the bailee is not sufficient to rebut the presumption of negligence against a bailee on the happening of loss. 84 Where a newly born infant was injured at night in a Govt. owned hospital, presumption of fact regarding negligence of the hospital staff would arise. 85 Contributory negligence.-- Where a pedestrian is killed in an accident, it cannot be presumed that the deceased tried to take risk or that he tried to make attempts to cross the road in an uncareful manner or tried to violate the rules of the road as there is no presumption under law that citizens commit breach of the rules and the rules of the road. The owner of the vehicle or insurance company has to establish by cogent evidence that the deceased was guilty of contributory negligence. 86 (aq) Notice Where a notice is addressed to the Secretary, Railway Board instead of the General Manager, it cannot be presumed under Section 114 that a wrong addressee would immediately forward the communication to the person who was bound to receive it. 87 Refusal to accept notice amounts to service in accordance with law. 88 Where the lessee alleged that he received the lease termination notice late thus not allowing him 15 clear days' time as required but failed to produce the envelop of notice to show the date of delivery to him besides taking no specific stand about the date of receipt of the notice in the written statement and showing no record of receipt

748

of the said notice, adverse inference would be drawn against him. 89 Where the landowner whose land was acquired did not raise the issue of non-service of land acquisition notice, rather the objection was raised by the person acquiring title through him after a lapse of 20 years, it was presumed that the requisite notice was duly served. 90 (ar) Ownership and Possession Title carries with it the presumption of possession. 91 If none can prove possession the court must hold that possession is with the rightful owner. 92 Where possession may be either lawful or unlawful, the court, in the absence of evidence, shall presume the former 93 but before coming to the conclusion that possession of the petitioners, claimed by virtue of registered sale-deeds in respect of land belonging to a tribal obtained after permission from the District Collector, was without the authority of law, the pleas of the petitioners must be considered. 94 There is no presumption regarding the fact of adverse possession. 95 The report of the Commission and the plan of land, submitted in a different suit concerning a different issue, cannot be taken into consideration to presume the finding of adverse possession without examining the said Commissioner. 96 Where title to a waste land incapable of effective enjoyment, was found vested in the plaintiff, presumption arose that possession followed title. 97 Possession of one co-owner is presumed in law to be possession of all co-owners even when others do not participate in profits and the principle of adverse possession does not apply. There can not be adverse possession unless established by cogent evidence showing open assertion of hostile title or repudiation of others title or express ouster, to the knowledge of other co-owners. 98 The person in whose name the properties stands in survey and settlement registers can be presumed to be the real owner thereof. 99 The initial presumption is that a building constructed on land after a person acquired title to the land, is also owned by such person. 100 Presumption is that trees in holding belong to the person to whom the holding belongs. 101 The person who is in possession is presumed to have prima facie title against all the world except the real owner but the presumption that possession follows title is rebuttable. In case of acquisition of land the original owner ceases to have the right, title or interest in it and cannot transfer any part thereof. In case he executes a sale-deed the transferee would be a trespasser, if he comes into possession. 102 Where the co-owner did not participate in taking rents and profits for a very long time, there is presumption of ouster. 103 Where there is a deposit in the joint names of A and B and there is no evidence to show that money deposited belonged to A, the reasonable conclusion that can be drawn from the joint nature of the deposit is that it belongs equally to both of them. 104 Where there is no indication or evidence as to the extent of share of each of the claimants to compensation, the presumption would be that they share equally. 105 An application for mutation of one's name in the revenue records by the parties although would not by itself confer any title, but then a presumption in regard to the nature of possession can be drawn in that behalf. In the instant case such an application could have shown that the tenant was claiming possession on its own rights and not as a tenant. 106 (as) User User from times immemorial raises a presumption that the enjoyment had a lawful origin.

107

Mere user of a piece of waste land as passage does not give rise to a presumption that the user was a matter of right. 108 Public user should be as of right and without interruption in order to raise a presumption of dedication. 109

Where Muslim residents of a village were burying the dead in a plot of land and continued to do so even after the U.P. Zamindari Abolition Act, 1951 and the defendants recognised the user, it was held there was a presumption that the plot was dedicated for user as a grave yard. 110 When a vehicle is given to an employee in the course of his employment, the presumption arises that the employee was

749

entitled to use both for official and non-official purposes unless there is evidence that the user was restricted. 111 Where a water course is running on another's land, a right to user cannot be acquired on the basis of presumption under S. 114, illus. (e ) of the Evidence Act. 112 (at) Wills If a will appears on the face of it to have been duly executed and attested in accordance with the requirements of the statute, a presumption of due execution and attestation applies. 113 Onus of proving a Will is on propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and signature of testator as required by law is sufficient to discharge the onus. 114 Where it was alleged that a certain will was executed under fraud and undue influence but no evidence was adduced to support the allegation, validity of the will was inferred. 115 Where a Will was executed in favour of his newly wedded wife and the testator died after a few months, no presumption can be drawn that the woman was in a position to dominate his Will; 116 but where the testatrix dies nearly after eight years from the date of execution of the Will and codicil, the presumption under Section 114of Indian Evidence Act has to be applied. 117 Where a duly executed will was found missing at the time of the testator's death, presumption that the will was revoked should be applied with care. 118 A court may resort to presumption that where the Will is traced to the possession of the testator but is not forth-coming after his death, it must have been destroyed by the testator with the intention to revoke it. 119 Where an ancient will is rational in character and was executed in the presence of witnesses, the presumption that the testator was of sound mind is justified. 120 In cases of Wills the presumption is that the attesting witnesses signed after the testator had signed. The presumption is based on the maxim 'Omnia praesumuntur rite esse acta. 121 (au) Miscellaneous Where a person in Baroda entered into agreement with the Government of India at Delhi to supply goods and the payment for goods was to be made by cheque, it was held that according to the course of business usage in general, parties must have intended that cheque should be sent by post. 122 There is no presumption in law that a person who possesses only a learner's licence or possesses no licence at all, does not know driving. 123 Where A 's land adjoins B house and is to the north of B 's house, and B opens a door in the north wall of his house with the purpose of having access to north; A is entitled to relief for apprehended trespass against B for his land. A has reasonable apprehension that the opening of the door is a first step towards subsequent act of trespass against his land. 124 Where a date expired medicine is kept in a drug shop, the presumption is that the medicine is stocked for sale. 125 The statement about the date of expiry given by the manufacturer on the drug is at best a statement about a future occurrence and therefore it cannot be regarded as a fact within the meaning of Section 114 because it does not indicate any such common course of natural events, human conduct and public and private business as may be relevant to the question whether the drug would or would not be rendered unfit for analysis after the date of expiry. In the instant case, after the analysis of the sample a particular drug was found to be not confirming to the claim in respect of its contents. 126 There can be no presumption that when person was discharged from general hospital there was no necessity for detaining him any further in hospital when it is common knowledge that for want of accommodation several persons are discharged before complete recovery. 127 (av) Statutory Presumption

750

There is a presumption of the constitutional validity of a statutory provision. The Supreme Court should lean in favour of the view as would sustain the validity of the provision and not disturb a construction which has been accepted for such a length of time. 128 Rule 141(2) of Defence of India Rules 1962 is not ultra vires as laying down a rule of evidence contrary to Section 114. 129 There is every presumption that a change of sovereignty would not affect private rights to property.

130

From the mere conduct of an accused, neither the existence of the order nor its due publication nor its knowledge by the accused, can be inferred. Before any presumption of due publication can arise, it must be shown that the order in question u/ r. 81(2) of Defence of India Rules (1939) was made in strict compliance with the provision of Rule 119. 131 Statutory presumption under Section 5 of the TADA Act, 1987 is rebuttable and the accused can prove that his purpose was wholly unrelated to any terrorist or disruptive activity. 132 When a person enters India on a passport issued by the Government of Pakistan, a presumption that he has acquired the citizenship of that country arises. Such a presumption is rebuttable. 133 Issue of an Indian passport to a person though not conclusive on the point of Indian citizenship, raises a rebuttable presumption in his favour. 134 In a criminal proceeding under the Hyderabad Gambling Act, the Court may presume that an officer issuing warrant has acted on credible information. 135 Where opium is recovered from a car during transport, all occupants of the car may be presumed to commit the offence under Sections 9 and 10 of the Opium Act (1878). 136 Presumption under Sections 178-ACustoms Act (1878), cannot be raised when article seized is not covered byS. 178A(2). 137 Where presumption under Section 123of the Customs Act could not be availed of as the seizure of gold biscuits was not done in accordance with theAct, it was held that in certain special circumstances the prosecution can fall back upon the presumption under Section 114. Under Bengal (Bihar) Tenancy Act, there is a rebuttable presumption that the land is not the proprietor's land. 138 Section 185 of Madras Estates Land Act (I of 1908) enacts a presumption that land in an inam village is not private land. 139 When a dealer was found in possession of excess number of kerosene tins than shown in the register, in the absence of a reasonable explanation, a presumption arises that he intended to sell the excess tins in the black market. 140 Statutory presumption of correctness attaches to the entry in books regularly maintained by a limited company, it is for the person alleging the contrary to prove it. 141 A resolution of a company signed by its Chairman must be presumed to be correct. 142 There can be no presumption that proceedings under R. 16, 24(ix) of the Punjab Police Rules were taken but, once it is admitted or proved that such proceedings were, in fact, taken then it must be presumed, unless otherwise alleged and proved, that they were taken in accordance with law. 143 The declaration that a certain person is the owner, printer and publisher of a particular newspaper to be issued from a particular place, only raises a presumption of publication at that particular place and does not extend to the publication of any issue of newspaper at any other place. 144 Where a party alleges bias in the matter of decision of the Government acting under Sections 10 of the Industrial Disputes Act , the Government should be presumed to act with complete propriety and without any bias unless evidence to the contrary is presented by the party alleging bias. 145 In view of the definition of "goods vehicle" in the Motor Vehicle Act, a presumption that the driver of the goods vehicle picked up the passenger in the course of his employment cannot be drawn. 146 The date of birth recorded in the matriculation certificate is not necessarily conclusive proof of such date. 147 (aw) Interpretation of statute Principle of presumption would be applicable equally in case of rule making authority. The provisions of a statute are to be interpreted harmoniously making the provisions clear and every part of the statute is to be given effect. 148

751

(ax) Repeal of an Act It is a well-settled principle of law that there is presumption against implied repeal of an Act .

149

(ay) Landlord and Tenant There is no presumption that a lease deed contained a term prohibiting the tenant from subletting. 150 Where a land was given on lease for building purpose and no period of tenancy was fixed, the presumption arises in favour of permanent tenancy. Giving a right to the lessee to surrender the lease at any time does not affect the nature of tenancy. 151 Inaction on the part of a landlord for a long time in taking steps for eviction, does not lead to the presumption that he had consented to the sub-tenancy 152 but adverse inference could be drawn against him for his failure to appear in a case seeking eviction on the basis of bona fide need. 153 Where the notice for termination of tenancy was issued by the landlord to the tenant at his residential address in accordance with law, presumption arose that the same was duly served on him. 154 A presumption may be raised that the occupier of a room in a hotel is a lodger or inmate. 155 Presumption as to forest lands in Kerala is that in absence of exceptional circumstances such as the land being entirely rocky or barren, all forest lands is agricultural land in the sense that it can be prudently and profitably exploited for agricultural purpose. 156 Coconut, arecanut, jack, rubber, mango trees and pepper vine that were in existence in a particular year may be presumed to be in existence three years later. 157 Where a person is recorded in the settlement record as raiyat of tank, presumption is that he is raiyat . However, the presumption is rebuttable. 158 Where a tenant was inducted by the ex-landlord from whom the present landlord purchased the premises and prior to the filing of eviction proceedings the ex-landlord and his munim died, no adverse inference could be drawn on the ground of failure of the present landlord to examine them. 159 Where the premises in question was found to be in possession of a stranger and not a tenant, inference of sub-letting could be drawn 160 and where the original tenant had died and his wife and children were living away from disputed property and disputed property was found in the possession of the brother of the deceased tenant who was neither a tenant nor a legal heir of the deceased tenant and he got the possession of it because of clandestine arrangement with the wife of tenant, it was held that presumption of sub-letting would be drawn against the brother of the deceased; 161 and it would also be presumed that the sub-letting must be for valid consideration. 162 Where in an eviction suit, the landlord plaintiffs, instead of examining themselves, examined the senior member of their family who was managing family affairs, no adverse inference could be drawn against them for not appearing as witnesses. 163 Where the tenant had sufficient means to acquire alternative accommodation, grant of permission for eviction on the ground of the tenant having sufficient means by drawing adverse inference against the tenant was held to be proper. 164 Where after the death of the husband his wife was recorded as a tenant in the revenue records and thereafter as a mortgagee, the change in revenue entries does not indicate cessation of tenancy. It only indicates that husband and thereafter the wife was tenant and the tenancy of the wife will revert to her after redemption of mortgage. 165 Where the tenant had produced the certified copy of the admission of his tenancy by the landlord, adverse inference could not be drawn against the tenant on the ground that he did not summon the respondent/landlord 166 but where the tenant could produce no evidence of his plea that the other person was a business partner, adverse inference could be drawn against the tenant and he could be evicted. 167 The application by the landlord by post to the Rent Controller that the house was vacant and could be allotted to anyone could be presumed to be genuine only when the applicant is summoned and enquiry is made. 168 Under the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982,Section 11(1)(c), the presumption, that the requirement of the plaintiff will not be substantially met if the defendant is directed to vacate a portion of one room suit premises, does not arise where the room is big enough to permit division to satisfy the needs of the landlord as well as the tenant. 169

752

Presumption of service of notice is a finding of fact and cannot be interfered within writ jurisdiction.

170

Sub-letting.--The burden of proving sub-tenancy is discharged by the landlord by proving exclusive possession of the premises by the sub-tenant and then presumption of sub-letting might be raised and would amount to proof unless rebutted. 171 (az) Religious Endowments There is no presumption either way whether a temple is a public or private temple. It is a question of fact depending upon the circumstances such as course of conduct of the devotees, public visiting the temple, extent of the properties etc. 172 Where an order of remand by a civil court does not mention the provision of law, the presumption is that it is passed under O. 41, R. 23, C.P.C.173 Where a foreign ex parte decree was passed against a domicile resident in India, and there was observation in the decree that summons was duly served on him, it cannot be presumed from such observation that the defendant was physically present in that country on the date of suit when the summons was served since a defendant may be served even outside that country. 174 Whenever a Legislature repeals a particular provision, the natural presumption is that such a repeal must have been with a particular intention. 175 The court presumes, unless contrary is shown, that the arbitrator has by his award determined only those matters that were referred to him. 176 Where a judgement contains references only to some of the witnesses, it cannot be presumed that the court was unmindful of other evidence. 177 (ba) Education Where a candidate appearing at the High School Examination in mathematics did not give the detailed calculation work in solving the sums, though the answers were correct, presumption about use of unfair means could not be drawn. 178 There can be no presumption on the ground of very good marks obtained in an examination that he/she will be entitled to get very good marks in the subsequent examination. 179 (bb) Cultivation underneath electric line Having regard to common course of natural events, the Court can draw a presumption that agricultural operation in a reasonably profitable manner can be carried on in the affected land underneath electric lines except growing tall trees. 180 (bc) Inconsistency in evidence In a motor accident case, it was held that no adverse inference could be drawn against the two injured minor girls due to some inconsistency in their testimony without following the procedure contemplated under Section 118 of the Evidence Act . 181 (bd) Sufficiency of cause No presumption can be drawn that there must be sufficient cause for delay for the condonation of which the party must place before the Court the acts constituting sufficient cause. 182 (be) Confirmation of minutes Confirmation of the minutes of the meeting of the Corporators in the subsequent meeting is not obligatory under the Bombay Provincial Municipal Corporation Act , 1949. If the President signs over it, it can be given presumptive value which is rebuttable. 183 (bf) Concurrence Rajasthan Municipal Service Rules, 1963, R. 27 provided that temporary appointments made under this section could not be continued beyond a period of one year without referring the same to the Public Service Commission for their concurrence and shall be terminated on their refusal to concur. In

753

the instant case a Lady Doctor was appointed and posted as such purely on temporary basis for a period of six months or till the availability of a candidate selected by the Service Commission whichever was earlier. Her working period continued to be extended. Though two years elapsed after she was selected by the Public Service Commission, yet she did not join pursuant to such selection and continued to work on the basis of the departmental extension orders. Subsequently, on availability of the candidate selected by the Service Commission, her services were terminated though she had completed 14 years of service and further 14 years on the basis of injunction order of the High Court. The Supreme Court held that there was no scope for regularization of her services unless the appointment was on regular basis. Her contention that with reference to the extension in her service presumption of concurrence by the Public Service Commission be drawn, was held to be without substance. 1 (bg) Signature on blank paper When the person says that he put the signature on a blank paper that does not mean that he had admittedly executed the document. 2 (bh) Post event conduct of witness In an offence of rape-cum-murder the complainant the husband of the victim being in a state of shock and apprehended danger to his life, by his non-mentioning of names of accused to the prosecution witness whom he met immediately after the occurrence, no adverse inference could be drawn on that ground making his testimony doubtful. The Court observed that the post event conduct of a witness cannot be predicted on specified lines. It varies from person to person as different people react differently under different situations. 3 (bi) Citizenship Where the appellants left India after the partition of the country and became citizens of Pakistan they acquired Pakistani passport voluntarily and obtained visa to visit India but instead of returning to Pakistan after expiry of visa, they went underground. There was no evidence to show that the Pakistani passport was obtained under compelling circumstances, hence, the Court held that conclusive presumption could be raised that they had acquired Pakistani citizenship voluntarily. 4 (bj) Conduct of business The law presupposes that a business in conducted legally and presumes that the business is lawful.

5

(bk) Price fixation Interest-free advance by the buyer to the manufacturer does not give rise to any presumption as to influencing lowering of the price of the goods to the said buyer. Departmental circulars and rules also did not envisage of any such presumption. 6 (bl) Custodial death In Shakila Abdul Gafar Khan v. Vasant Raghunath Dhoble , 7 the Supreme Court observed that keeping in view the dehumanizing aspect of custodial deaths, the flagrant violation of fundamental rights of the victim of the crime and the growing rise in crimes of this type, the Government and the legislature must give serious thought to the recommendation of the Law Commission in its 113th Report to amend the Evidence Act so as to provide that in the prosecution of a police officer for an alleged offence of having caused bodily injuries to a person in police custody, if there was evidence that the injury was caused during the period, when that person was in police custody, the Court may presume that the injury was caused by the police officer having the custody of that person during that period unless the police officer proves to the contrary. The onus to prove to the contrary must be discharged by the police official concerned. (bm) Custodial injuries If the fact that the petitioner sustained injuries while in custody of police is not in dispute, the burden to explain the injuries was on the police which was not properly complied with and on the other hand affidavit containing false details was filed by an officer who had nothing to do with actual occurrence

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and was also inconsistent with version of the police witnesses, it would raise a presumption against the police. 8 (bn) Implied acceptance The mother executed a gift deed in favour of her minor son who after reading the same, handed it over to his father. Neither the father nor the son after attaining majority repudiated the gift. The mother cancelled the said gift after 25 long years and executed a Will in respect of the same property in favour of her another child. It was held that in absence of any overt act of acceptance an inference of implied acceptance of gift could be drawn from the non-repudiation of the Will rendering the same irrevocable and the mother was incompetent to cancel the gift and execute the said Will. 9 (bo) Implied consent or acquiescence The inaction of the landlord in not taking steps for evicting the sub-tenants within a reasonable period does not necessarily lead to an inference of implied consent or acquiescence. Even the knowledge of the landlord in respect of such occupation will not lead to such inference. 10 (bp) Workman Once it is held that a contract of apprenticeship entered into by and between the employer and the incumbent is genuine one and not a camouflage or a ruse, a presumption would arise that the person concerned is not a workman. 11 (bq) Opinions of specialist authors Though opinions expressed in text books by specialist authors may be of considerable assistance and importance for the Court in arriving at the truth, they cannot always be treated or viewed to be either conclusive or final as to what such author says to deprive even a Court of law to come to an appropriate conclusion of its own on the peculiar facts proved in a given case. In substance, though such views may have persuasive value, they cannot always be considered to be authoritatively binding, even to dispense with the actual proof otherwise reasonably required of the guilt of the accused in a given case. Such opinions cannot be elevated to or placed on a higher pedestal than the opinion of an expert examined in Court and the weight ordinarily to which it may be entitled to or deserves to be given. 12 (br) Presumption of consent of Advocate General A private party applied for permission of the Advocate General to initiate contempt of Court proceeding as provided under Sections 15 of the contempt of Courts Act , 1971, stating that, if the permission was not granted within a specified date, grant of permission would be presumed. The Supreme Court held that there arises no question of any presumption as such a course was not permissible. 13 (bs) Presumption of embarrassment likely to be caused due to subject-matter of proceedings In a case concerning commission of offences relating to pornographic material/acts, the trial was assigned to a Court presided over by a lady judge and also designated as a "Mahila Court", the High Court presumed that the presiding officer being a lady, embarrassment would be caused to her and transferred the case to a Court presided over by a male judge. One of the witnesses/accused being a female applied for retransfer of the case to the original Court claiming that avoidance of embarrassment to her should have been given primacy. It was held that embarrassment is a state of mind which is more individual related than related to the sex of a person. It is but natural that any decent person would be embarrassed while considering the evidence in a case like this but this embarrassment cannot be attributed to a lady officer only. It would embarrass both the male and the female officers. It is expected of a judicial officer to get over all prejudices and predilections when the situation requires. Hence the Supreme Court observed that the High Court was not justified in presuming the embarrassment only to the lady officer even when the officer concerned had not expressed any reservation in this regard. It was further observed that, if the situation requires, the presiding officer might make such adjustments/ arrangements so as to avoid viewing the CDs in the presence of male persons. This is a matter of procedure to be adopted by the Presiding officer. It was also contended that even the counsels would feel embarrassed to appear before the Court presided

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over by a lady officer. The Apex Court observed that the lawyers concerned would have accepted the brief knowing very well the facts of the case and it is left to them to decide whether to continue in it or not and their embarrassment cannot be a ground for the transfer of the case. Embarrassment might be caused even to the lady witnesses/accused, summoned to give evidence before a Court presided over by a male Judge, more so when their own act s are part of the prosecution evidence and they were actually in the nature of victims. The Supreme Court ordered retransfer of the case to the original Court. 14 (bt) Computer system In a case involving proof of authenticity of printouts taken from computer/Server (an instrument to store cell phone call records) it checked its mistake and corrected it promptly and thus showed two call records of the same cell phone number simultaneously. The printouts pertaining to the call details were of such regularity and continuity that it was held that it would be legitimate to draw a presumption that the system was functional and output was produced by the computer in regular use. 15 (bu) Statements Where a person of the status of a freedom fighter makes a statement that he was imprisoned for six months, the Court may presume that such statements are true unless they are disproved by materials on record or other evidence. 16 (bv) Estate It was held to be not proper to say that since till 1967 the property was continuing as an estate, there would be a presumption that this continued to be an estate, unless rebutted. 17 (bw) Norms In absence of any evidence, merely because robbery has taken place, it cannot lead to the presumption that strong room and the lockers of the bank were not built in accordance with the specifications. 18 (bx) Payment of consideration Where there was a single purchaser, it might be presumed that the total consideration was paid by him but if there were many purchasers and the controversy could arise as to the ratio of contributions in passing of consideration made by each purchaser and the documents being silent on the point, oral evidence could be led. 19 (by) Presumption of title Payment of compensation in land acquisition proceedings to widows, would not necessarily establish their title. 20 (bz) Right of appeal

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Ratanlal & Dhirajlal: Law of Evidence, Updated 23rd Edition/THE INDIAN EVIDENCE ACT (ACT 1 OF 1872)/PART III PRODUCTION AND EFFECT OF EVIDENCE/CHAPTER VII THE BURDEN OF PROOF/S. 114. 4 of 4 A statutory right of appeal cannot be presumed to have come to an end because the appellant is in the meantime abided by or has taken the advantage of something done by the opponent under the decree. 21 (ca) Presumption of conversion A Catholic Christian girl converted to Hinduism and married a Hindu. Their marriage was performed according to Hindu Vedic rites and children born to them were given Hindu names. They received nonCatholic instructions in a school run by the Church. The wife, after marriage went to Hindu religious places with her husband and participated in religious ceremonies like pooja, havan etc. It was contended that their marriage was void because there was no proof of performance of Shudhikaran ceremony i.e. conversion to Hinduism before marriage. The Court held that it could be presumed the priest must not have performed their marriage rites without her conversion. 22 (cb) Exclusion of jurisdiction When the Court has to decide the question of jurisdiction pursuant to an ouster clause, it is necessary to construe the ousting expression or clause properly to see whether there is ouster of jurisdiction of other Courts. When certain jurisdiction is specified in a contract, an intention to exclude all others from its operation may in such cases be inferred, applying the maxim ' expressio unius est exclusio alterius ' (expression of one is the exclusion of another). 23 (cc) Validity of appointment It the appointment of the employee is void, being contrary to the Regulations, the procedural provisions like estoppel or waiver are not applicable and his services can be terminated inspite of the fact he was transferred from one office of the employer to another. 24 (cd) Registered document There is presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. Onus of proof, thus, would be on a person who leads evidence to rebut the presumption. 25 A registered sale deed carries a presumption of genuineness and the burden that it is not genuine is on the person who alleges it is not. 26 (ce) Extension of time for performance of contract Extension of time for performance of contract is not necessarily to be inferred from a written document. It can also be implied. The conduct of the parties would also be relevant in this behalf.

27

(cf) Grant of licence by implication The landlord had given notice to the licensee to vacate the room and handover possession but even after the death of the licensee the landlord permitted the licensee wife to continue in possession. The Court held that, although status of licensee might not be inherited by the wife, the conduct of the parties was such as it would give rise to a legitimate presumption that the wife had independently acquired the status of a licensee. It was held that she acquired the status of a licensee by implication. 28

(cg) Condonation of irregularity Where objection as to the mode of proof of a document was not raised at the appropriate stage i.e. when the document was exhibited, the Court presumed that the defendant had condoned irregularity in the mode of proof. 29 (ch) Public Trust

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Religious or charitable purpose of a public trust has to be established by adducing evidence. Drawing presumption in absence of evidence merely on the basis of the object contained in the constitution of the trust in question that it was a charitable endowment, was held to be improper. 30 (ci) Notice by counsel There is a presumption that, when an advocate sends a notice on behalf of a client, the notice is sent by him on instructions from his client. 31 (cj) Extension of period of limitation Extension of period of limitation entails both civil and criminal consequences and, therefore, reasons therefor must be specifically stated in the show-cause notice, in absence whereof the Court would be entitled to raise an inference that case was not one where the extended period of limitation could be invoked. 32 (ck) Accident An accident may lead to death but that an accident had taken place must be proved. Only because a death had taken place in the course of employment will not amount to accident. Death must arise out of accident. There is no presumption that an accident had occurred. In the instant case an employee had died of heart attack in the course of employment. 33 (cl) Favouritism Change in eligibility criteria in recruitment process in a Govt. Company by enlargement of zone of consideration and lowering of cut-off marks without disclosing reasons may result in drawing of an adverse inference of favouritism against the Company. 34 (cm) Bona fide passenger A passenger allegedly fell down from the train while boarding it as it immediately moved without giving any whistle and died. The person who accompanied the deceased while travelling stated on affidavit that the deceased had purchased the ticket. The Railways produced no evidence to rebut the said statement. Thus, it was held that he was a bona fide passenger and the claimants of the deceased were entitled to compensation. 35 (cn) Presumption against exhumation As a matter of Christian doctrine, burial in consecrated land is final and permanent and this general norm creates a presumption against exhumation, departure from which can only be justified, if special circumstances can be shown for making an exception to the norm. An applicant might be able to demonstrate a matter of great national, historic or other importance concerning human remains or the value of some particular research or scientific experimentation. Only if the combined effect of evidence as to these proves a cogent and compelling case for the legitimacy of the proposed research will special circumstances be made out such as to justify a departure from the presumption against exhumation. In the instant case, the applicant failed to establish such special circumstances. 36 (co) Gift One of the elements of gift is its acceptance. The fact that possession has been given to the donee, raises a presumption of acceptance. Even a silence may sometimes indicate acceptance. There arises a presumption as to the correctness of a registered gift deed. 37 21 Babu Ram v. Baijnath Singh, AIR 1961 SC 1327 (1330) (para 12). 22 Madhavi Ramesh Dudani v. Ramesh K. Dudani, AIR 2006 Bom 94 (para 13). 23 Mayar (H.K.) Ltd. v. Owners & Parties, Vessel M.V. Fortune Express, AIR 2006 SC 1828, 1839-40 (para 16) : (2006) 3 SCC 100. 24 M.P. State Agro Industries Development Corpn. Ltd. v. S.C. Pandey, (2006) 2 SCC 716, 723 (para 23) : (2006) 3 JT 348.

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25 Prem Singh v. Birbal, (2006) 5 SCC 353, 360-61 (para 27) : AIR 2006 SC 3608. See also Vimal Chand Ghevarchand Jain v. Ramakant Eknath Jadoo, (2009) 5 SCC 713, 726 (para 22); Asokan v. Lakshmikutty, (2007) 13 SCC 210, 217 (para 20). 26 Govind Anant Goltekar v. Dasharath Deoba Goltekar, AIR 2006 Bom 174, 176-78 (para 12). 27 Panchanan Dhara v. Monmatha Nath Maity, (2006) 5 SCC 340, 347-48 (para 22) : AIR 2006 SC 2281. 28 Surjit Kaur v. Balwinder Kaur, AIR 2006 P&H 23, 27-28 (para 12). 29 Haryana Urban Development Authority v. Satpal Gupta, AIR 2006 P&H 98 (paras 2 and 3). 30 Sri Maheshwari Samaj Trust, Jodhpur v. Commissioner, Devasthan Department, Govt. of Rajasthan, Udaipur, AIR 2006 (NOC) 846(Raj) . 31 Haryana State Industrial Development Corporation v. Cork Manufacturing Co., (2007) 8 SCC 120, 139-40 (para 56) : AIR 2008 SC 56, per P.K. B ALASUBRAMANYAN , J. 32 Larsen & Toubro Ltd. v. Commissioner of Central Excise, Pune II, (2007) 9 SCC 617, 624 (para 18) : (2007) 6 JT 440, relying on CCE v. Punjab Laminates (P) Ltd., (2006) 7 SCC 431 : 2006 (5) SCR 264. 33 Shakuntala Chandrakant Shreshti v. Prabhakar Maruti Garvali, (2007) 11 SCC 668, 677-78 (para 25) : AIR 2007 SC 248. 34 P. Mohanan Pillai v. State of Kerala, AIR 2007 SC 2840, 2844 (para 16) : (2007) 9 SCC 497. 35 Devkabai v. U.O.I., 2007 AIHC 88, 89-90 (paras 13-17) (MP). 36 Re Holy Trinity, Bosham , [2004] 2 All ER 820 : [2004] Fam 125. This approach was specifically approved by the Court of Arches in the case of Re St Nicholas, Sevenoaks , [2005] 1 WLR 1011. However, applying this approach, the Court found circumstances to displace the presumption again exhumation in Re St Mary, Sledmere , [2007] 3 All ER 75. 37 Asokan v. Lakshmikutty, (2007) 13 SCC 210 (paras 14, 16 and 20).

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Ratanlal & Dhirajlal: Law of Evidence, Updated 23rd Edition/THE INDIAN EVIDENCE ACT (ACT 1 OF 1872)/PART III PRODUCTION AND EFFECT OF EVIDENCE/CHAPTER VII THE BURDEN OF PROOF/S. 114-A.

CHAPTER VII THE BURDEN OF PROOF 38

[ S. 114-A.

Presumption as to absence of consent in certain prosecutions for rape. In a prosecution for rape under Cl. (a ) or Cl. (b ) or Cl. (c ) or Cl. (d ) or Cl. (e ) or Cl. (g ) of subsection (2) of Section 376 of the (45 of 1860), where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the Court that she did not consent, the Court shall presume that she did not consent.] COMMENTS

In a case on the subject before the Madhya Pradesh High Court, the prosecutrix stated in her evidence that she did not consent to the sexual intercourse. The Court accordingly held that by virtue of this section, the burden of proving consent shifted to the accused. The section comes into play on proof by the prosecution that sexual intercourse had, in fact, taken place and on the victim girl saying before the court that there was no consent on her part. 39 The Court cited the decision of the Supreme Court in Rafiq v. State of U.P., 40 to the effect that the absence of marks of injury on the accused is not fatal in each case, nor does the absence of such physical injuries on the prosecutrix warrant the presumption of consent on her part. In a case of rape with a mentally deficient girl several times, it was held that for constituting consent there must be exercise of intelligence based on knowledge of the significance and the moral effect of the act . Consent is different from submission. Every consent involves a submission but the converse does not follow. In law, an act of helpless resignation in the face of inevitable compulsion, quiescence, nonresistance or passive giving in when the faculty is either clouded by fear or vitiated by duress or impaired due to mental retardation or deficiency, cannot be considered to be consent. A mentally challenged girl cannot give consent. 41 Where in a case of kidnapping and rape of a minor girl, the evidence showed that the prosecutrix was forcefully taken away from lawful guardianship of mother at night and her age was below 16 years as per school records and she also stated in her evidence that she was raped without her consent, it would be presumed that she did not consent to sexual intercourse in view of Section 114-A of the Evidence Act and it cannot be said, merely because no external injury was found on her body suggesting resistance, that she was a consenting party for the such sexual act. 42 Where the prosecutrix had been allegedly subjected to gang rape by the accused persons against her will and consent and when she has stated that she did not consent to the sexual intercourse, it would be presumed that she did not consent for the same in view of Section 114-A of the Evidence Act . 43 Where in a rape case there was cogent and reliable evidence of the victim corroborated by evidence of the other witnesses as well as medical evidence that the accused had committed sexual intercourse and the victim in her deposition has specifically denied her consent for the same, the presumption under Sections 114-A of the Indian Evidence Act would be attracted. 44 Where prosecutrix of above sixteen years of age on the date of incident indulged in sexual intercourse with accused two three times and did not disclose the incident of alleged rape to her parents and the FIR was lodge only after her mother noticed her pregnancy of five months, it was held that the

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presumption under 114-A of the Evidence Act could not to be drawn. 45 In a rape case where accused was alleged to have entered in the house of the prosecutrix an adult woman and committed rape on her without her consent. However no injuries were found on her person and absence of tell-tale injuries on accused due to her alleged voilent resistance raised serious doubt as to whether at all an act of sexual intercourse had taken place. It was held that the presumption under Section 114-A could not be raised in absence of proof of sexual intercourse. 46 In a case of alleged gang rape, where the prosecutrix stated that the four accused persons had forcibly raped her against her will but it was not corroborated by the medical evidence. The Evidence of struggle on the part of prosecutrix to avoid sexual intercourse was missing and no injury on the person of the prosecutrix was found and the FIR was lodged after five days of the occurrence without any explanation. No seizure of torn blouse and blood stained gagra of the prosecutrix was made by the police and none of the persons gathered after hearing of the cries of the prosecutrix was produced as a witness. In such circumstances the presumption under Section 114-A of the Act could not be raised to convict the accused on unreliable testimony of the prosecutrix alone. 47 It has been held that the presumption under S. 114-A is attracted only to cases that fall under S. 376(2),I.P.C. and not to cases that fall underS. 376(1),I.P.C. 48 Where in a case of gang rape there was unexplained delay of nine days in lodging the complaint, the victim was desirous to marry one of the accused, the victim unwillingly made the report under the pressure of her parents and the unexhibited report of the chemical examiner contra-indicated story of sexual intercourse, it was held that presumption under S. 114-A was not attracted. 49 It has been held that the absence of injuries on the person of the accused or the prosecutrix, the victim of rape, is not per se sufficient to indicate her consent. 50 The statement of the prosecutrix in a rape case does not require corroboration to be acted upon.

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38 Inserted by the Criminal Law (Amendment) Act, 1983 (Act 43 of 1983) w.e.f. 25-12-1983. 39 Nawab Khan v. State, 1990 CrLJ 1179. 40 AIR 1981 SC 559 : 1980 CrLJ 1344, which was, of course, not on the section and preceded its enactment. 41 Tulshidas Kanolkar v. State of Goa, (2003) 8 SCC 590 (para 6), See also State of H.P. v. Shree Kant Shekari, (2004) 8 SCC 153, 159 (para 15) : AIR 2004 SC 4404 : 2004 CrLJ 4232. 42 Hanumanthu Rama Rao v. State of A.P., 2002 CrLJ NOC 167(AP) : 2001 (2) Andh LT (Cri) 317. 43 Kuldip Singh v. State of Punjab, 2003 CrLJ 3777, 3782 (para 24) (P&H) : 2003 (3) Rec CrR 455. 44 Burla Venugopalakrishan v. State of A.P., 2005 CrLJ 1164, 1167 (para 17) (AP). See also Yedla Srinivasa Rao v. State of A.P., (2006) 11 SCC 615, 620-22 (para 10) : (2006) 4 Crimes 281; Pankaj Lakara v. State of Chhattisgarh, 2006 CrLJ 4229, 4231 (para 10) (Chh); Vijay Kumar v. State (U.T.) Chandigarh, 2007 CrLJ 704, 706 (para 19) (P&H); Vimalanathan v. State, 2007 CrLJ 261(NOC) (Cal) ; Harpal v. State of U.P., 2008 CrLJ 88(NOC) (All) : 2007 (6) ALJ 114; Bipul Medhi v. State of Assam, 2008 CrLJ 1099, 1108 (para 32). 45 Jamnalal alias Chiman Dhimar v. State of M.P., 2002 CrLJ NOC 199 : 2002 (2) Cur CrR 527 : 2002 (1) MPHT 229 : 2002 (2) MPLJ 169. 46 State of Karnataka v. Gurupadayya Balayya Karadi alias Bhangi, 2004 CrLJ NOC 112(Kant) : 2004 AIR Kant HCR 872 : 2004 (2) KCC R 961. 47 Jogi Dan v. State of Rajasthan, 2004 CrLJ 1726, 1731 (para 22) (Raj) : 2004 CrLR (Raj) Raj 411 : 2004 (2) Raj CrC 780 : 2004 (2) Raj LR 635 : 2004 (3) WLC 73. 48 Ramcharan v. State of M.P., 1993 CrLJ 1825 (para 7) (MP). 49 Shatrughna v. State of M.P., 1993 CrLJ 120(MP) . See also Arun Dharmdas Khobragade v. State of Maharashtra, 2008 CrLJ 1022(NOC) (Bom) . 50 State of U.P. v. Padam Singh, 1996 AIHC 169(All) . 51 Zamir Ahmad v. State, 1996 CrLJ 2354 (paras 16 and 17) (Del), relying on State of Maharashtra v. Chanderprakash Kewalchand Jain, 1990 CrLJ 889 : (1990) 1 SCC 550.

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Ratanlal & Dhirajlal: Law of Evidence, Updated 23rd Edition/THE INDIAN EVIDENCE ACT (ACT 1 OF 1872)/PART III PRODUCTION AND EFFECT OF EVIDENCE/CHAPTER VIII ESTOPPEL/S. 115.

CHAPTER VIII ESTOPPEL S. 115. Estoppel. When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing. ILLUSTRATION .4 intentionally and falsely leads B to believe that certain land belongs to .4 , and thereby induces B to buy and pay for it. The land afterwards becomes the property of .4 , and .4 seeks to set aside the sale on the ground that, at the time of the sale, he had no title. He must not be allowed to prove his want of title. 1. PRINCIPLE AND SCOPE

Estoppel is based on the principle that it would be most inequitable and unjust that if one person, by a representation made, or by conduct amounting to a representation, had induced another to act as he would not otherwise have done, the person who made the representation should not be allowed to deny or repudiate the effect of his former statement, to the loss and injury of the person who act ed on it. 1 The section says that when one person has by his (a) declaration, (b) act, or (c) omission intentionally caused or permitted a person : 4i)   to believe a thing to be true, and (ii) to act upon such belief, then neither he nor his representative shall be allowed to deny the truth of that thing in any suit or proceeding between himself and such person or his representative. To invoke the doctrine of estoppel three conditions must be satisfied; (1) representation by a person to another, (2) the other shall have acted upon the said representation, and (3) such act ion shall have been detrimental to the interests of the person to whom the representation has been made. Even where the first two conditions are satisfied but the third is not, there is no scope to invoke the doctrine of estoppel. 2 The doctrine embodied in this section is not a rule of equity, but is a rule of evidence formulated and applied in courts of law. 3 It precludes a person from denying the truth of some statement previously made by himself. No cause of action arises upon estoppel itself. 4 This section is based on equity and good conscience the object being to prevent fraud and secure justice between the parties by promoting honesty and good faith. 5 This section is based on the decision in Pickard v. Sears 6 in which it was stated--"Where a person by his words or conduct willfully causes another to believe in the existence of a certain state of things and induces him to act on that belief so as to alter his own previous position, the former is precluded from averring against the latter a different state of things as existing at the same time." 7

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In Mitra Sen Singh v. Janki Kuar, 8 it was stated : "When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative to deny the truth of that thing".

The only difference is that in the above decision the expression "willfully" was used, whereas in this section the expression "intentionally" is used. Practically there is no distinction between the law laid down in this section and the law in England.

9

In H ALSBURY (4th Ed, Vol. 16, para 1501, page 1008) it is observed : "Estoppel may be defined as a disability whereby a party is precluded from alleging or proving in legal proceedings, that a fact is otherwise than it has been made to appear by the matter giving rise to that disability." The doctrine of estoppel has, however, been guarded with great strictness, not because the party enforcing it, is presumed to be desirous of excluding the truth... but because the estoppel may exclude the truth. Hence estoppels must be certain to every intent; for no one shall be prevented from setting up the truth, unless it be in plain contradiction to his former allegations and acts. These last words extend, not only to a man's own allegations and act s, but also to those of all persons through whom he claims; or, to express the same sentiment in the technical language of the law, estoppels are usually binding upon parties and privies. L ORD C OKE has divided privies into three classes; first, privies in blood, as heirs; secondly, privies by estate, as feoffees, lessees, assignees, etc.; and thirdly, privies in law "as the Lord by escheat, the tenant by the courtesy, the tenant in dower, the incumbent of a benefice," husbands suing or defending in right of their wives, executors and administrators. In all these and the like cases, the law acting upon the wise principle quit sentit commodum, sentire debet et onus provides that the privy shall stand in no better position than the party through whom he derives his title; but that, if the latter is not at liberty to contradict what he has formerly said or done the former shall be subject to a like disability. 10 To bring the case within the scope of estoppel as defined in Section 115: (1) there must be a representation by a person or his authorised agent to another in any form, a declaration, act or omission; (2) the representation must have been of the existence of a fact and not of promises de futuro or intention which might or might not be enforceable in contract; (3) the representation must have been meant to be relied upon; (4) there must have been belief on the part of the other party in its truth; (5) there must have been action on the faith of that declaration, act or omission, that is to say, the declaration, act or omission, must have act ually caused another to act on the faith of it, and to alter his former position to his prejudice or detriment; (6) the misrepresentation or conduct or omission must have been the proximate cause of leading the other party to act to his prejudice; (7) the person claiming the benefit of an estoppel must show that he was not aware of the true state of things. If he was aware of the real state of affairs or had means of knowledge, there can be no estoppel; (8) only the person to whom representation was made or for whom it was designed can avail himself of it. 11 Estoppel is a rule of civil action. It has no application to criminal proceedings, though in such proceedings it would be prejudicial to set up a different story. A question of estoppel must be decided on ordinary common law principles of construction and of what is reasonable, without fine distinctions of technicalities. Estoppel is often described as a rule of evidence as indeed it may be so described. But, the whole concept is more carefully viewed as a rule of substantive law. 12 The doctrine of estoppel by representation forms part of the English Law of evidence and such estoppel except as a bar to testimony, has no operation or efficacy whatsoever. Its sole object is either to place an obstacle in the way of a case which might otherwise succeed or to remove an impediment out of the way of the case which might otherwise fail. 13 Estoppel by representation does not create interest in property except as provided in Section 43, T.P. Act . 14 V ISHWANATHA S ASTRY J. observed: "An estoppel though a branch of the law of evidence

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is also capable of being viewed as a substantive rule of law insofar as it helps to create or defeat rights which would not exist and be taken away but for that doctrine." 15 Principle of estoppel cannot operate against a person who was not in existence at the date when the transaction took place. 16 Where the order of extension of service of an employee was cancelled before it became operative, the question of estoppel did not arise. 17 The complicated questions of estoppel and acquiescence could properly be examined only in a title suit, that is, a suit for declaration and consequential reliefs and not in suit for an injunction simpliciter. 18

The rule of estoppel must prevail over a pure rule of procedure contained in Section 92 of the Evidence Act. 19 At times even an innocent or mistaken representation may operate as an estoppel.

20

In a partition between joint purchasers of property where exclusive ownership of passage was given to the plaintiff under an unregistered deed of partition, the plaintiff filed a suit for declaration of his ownership to the passage basing on the partition deed. It was held that ownership of passage can only be granted if legal and admissible evidence is adduced to establish the right to property and it cannot be created by estoppel. 21 Section 115 deals with questions of facts and not of rights. No one can be estopped from asserting his right, which he might have stated that he will not assert. 22 While applying the procedural law like the principle of estoppel or acquiescence, the Court would be concerned with the conduct of a party for determination as to whether he can be permitted to take a different stand in a subsequent proceeding, unless there exists a statutory interdict. 23 1 For Statement of Objects and Reason, see Gaz. of India, 1868, p. 1574. 1 Sarat Chunder Dey v. Gopal Chunder Laha, (1892) 19 IA 203, 215, 216 : ILR 20 Cal 296; Syed Ali Mossa Raza v. Razia Begum, AIR 2003 AP 2, 11, 12 : 2003 (1) Andh LT 100. Pickard v. Sears, (1837) 6 A&E 469. For a parallel example see Gulam Abbas v. Haji Kayyam Ali, AIR 1973 SC 554, relinquishment of the future possible right of inheritance by a Muslim heir for a consideration may debar him from setting up his right when it actually comes into being. 2 Gyarsi Bai v. Dhansukh Lal, AIR 1965 SC 1055; Dhiyan Singh v. Jujal Kishore, AIR 1952 SC 145. 3 Municipal Corporation of Bombay v. Secretary of State, (1904) 29 Bom 580 : 7 Bom LR 27. 4 Banwari Lal v. Sukhdarshan, AIR 1973 SC 814, estoppel does not create interest in property. 5 Madanappa v. Chandramma, AIR 1965 SC 1812. 6 (1832) Ad & El 469. 7 See also Hopgood v. Brown, (1955) 1 All ER 550 at 559 (CA). 8 AIR 1924 PC 213, at 214, as cited in Karam Singh v. State of J&K, AIR 2004 SC 2480 (para 21) : (2004) 5 SCC 698. 9 Mitrasen v. Janaki Kuar, AIR 1924 PC 213; Dawson Bank Ltd. v. Nippon M.K. Kaish, AIR 1935 PC 79. 10 T AYLOR , 12th Edn., ss. 89-90, pp. 86- 87. 11 Chhaganlal Keshavlal Mehta v. Patel Narandas Haribhai, AIR 1982 SC 121 : (1982) 1 SCC 223 : 1982 UJ 120(SC) : (1982) 2 SCR 166. 12 C. & D. Sugar Co. v. C.N. Steamship, AIR 1947 PC 40. 13 Ramniwas v. State, AIR 1970 Punj 462(FB) ; Samarendra v. Calcutta University, AIR 1953 Cal 172. It cannot operate to create rights. 14 Banwari Lal v. Sukhdarshan, AIR 1973 SC 814. 15 D. Veeraraghava Reddy v. D. Kamallamma, 1951 Mad 403. See also Dawson Bank Ltd. v. N.M.K.K., AIR 1935 PC 79; Union of India v. Ramnath & Co., AIR 1974 All 296; N.K. Raghavan v. Municipal Council, Jarsugada, AIR 1973 Ors 86.

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16 Shri Ramji Mandir v. Co-op. Housing Society, AIR 1979 Guj 134. 17 State of U.P. v. Girish Bihari, AIR 1997 SC 1354. 18 Anathula Sudhakar v. P. Buchi Reddy, (2008) 4 SCC 594, 609 (para 25) : AIR 2008 SC 2033. 19 State Bank of Indore v. Jasroop Baijnath, AIR 1974 MP 193. 20 Sarat v. Gopal, (1892) 20 Cal 296; Vagliano v. Bank of England, 1891 AC 197. 21 Chandervati v. Lakhmi Chand, AIR 1988 Del 13. 22 Sida Nitinkumar Laxmankumar, Laxmanbhai v. Gujarat University, AIR 1991 Guj 43. 23 Jai Narain Parasrampuria v. Pushpa Devi Saraf, (2006) 7 SCC 756, 776 (para 33) : (2006) 6 SLT 501.

2. APPLICABILITY When the Court is objectively satisfied that equity demands that the promisor can be allowed to resile from his/its promise or representation and the promise can be adequately compensated, the Court can decline to extend the applicability of the doctrine of promissory estoppel, whereas on the other hand if the Court is objectively satisfied that it cannot be made possible to relegate the promise to its original position ante , then the promise so made should be declared final and irrevocable ignoring the plea of executive necessity. 24 The principle of promissory estoppel is applicable to administrative law and not between the private parties. 25 A plea of estoppel can be raised in writ petitions. 26 Election petition cannot be disposed of summarily on the question of estoppel. 27 Merely because the plaintiff had not specifically coined the phrase Doctrine of Estoppel as defence, it would be wrong to overlook the true legal effect of the defence. Such a course would only be a hypertechnical approach and might bear the apparent appearance of denying the relief to the litigant for his ignorance and lack of legal skills. 28 Though estoppel is described as a mere rule of evidence, it may have the effect of creating substantive rights as against the person estopped. An estoppel, which enables a party as against another party to claim a right of property which in fact he does not possess, is described as estoppel by negligence or by conduct or by representation or by holding out ostensible authority. Estoppel, then, may itself be the foundation of a right as against the person estopped and indeed, if it were so, it is difficult to see what protection the principle of estoppel can afford to the person by whom it may be invoked or what disability it can create in the person against whom it operates in cases affecting rights. Where rights are involved estoppel may with equal justification be described both as a rule of evidence and as a rule creating or defeating rights. Of course, an estoppel cannot have the effect of conferring upon a person a legal status expressly denied to him by a statute. But where such is not the case a right may be claimed as having come into existence on the basis of estoppel and it is capable of being enforced or defended as against the person precluded from denying it. 29 24 Kalu Chand v. State, AIR 1998 Raj 33, at pp. 37-38. Also see Food Corpn. of India, Bhopal v. Babulal Agarwal, AIR 1998 MP 23, at p. 31. 25 Hamir Ram v. Varisng Raimal, AIR 1998 Gaj 165 (para 7). 26 Baij Nath v. Bank of Maharashtra, AIR 1987 Del 231. 27 Ramgulam v. Collector, Guna, AIR 1975 MP 145. 28 M.A. Raju v. Annaiah, AIR 2003 Kant 497, 502 (para 22) : 2003 AIR Kant HCR 2137. 29 B.L. Sreedhar v. K.M. Munireddy, AIR 2003 SC 578 (paras 25, 26 and 27) : (2003) 2 SCC 355.

3. NOT EXHAUSTIVE

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The sections relating to estoppel in the Evidence Act are not exhaustive. Cases of estoppel may arise which are not within the purview of these sections. 30 As to other instances of estoppel, see Sections 234 of the Indian Contract Act , 1872; Sections 18 of the Specific Relief Act , 1877; Ss. 41 and 43 of the Transfer of Property Act , 1882; Ss. 27 and 53 of the Indian Sale of Goods Act, 1930; and Sections 28 of the Indian Partnership Act , 1932. 30 Rup Chand Ghosh v. Sarbeswar Chandra Chandra, (1906) 33 Cal 915. There are decisions which lay down that these sections are exhaustive: see Asmatunnessa Khatun v. Harendra Lal Biswas, (1908) 35 Cal 904.

4. CONSTRUCTIVE ESTOPPEL This is no such thing known to the law as constructive estoppel.

31

31 Parsotam Gir v. Narbada Gir, (1899) 26 IA 175 : 1 Bom LR 700 : ILR 21 All 505.

5. ESTOPPEL AND PRESUMPTION Estoppel differs from presumption. An estoppel is a personal disqualification laid upon a person in peculiar circumstances from proving peculiar facts; whereas a presumption is a rule that particular inferences shall be drawn from particular facts, whoever proves them. 32 32 S TEPHEN , 175.

6. ESTOPPEL AGAINST ESTOPPEL The maxim is 'estoppel against an estoppel setteth the matter at large'. In a case of one estoppel against another, the parties are set free and the court has to see what their original rights really are.

7. FEEDING THE ESTOPPEL "Feeding the estoppel" is an expression which is part of English Law of Estoppel and by it is meant that where a grantor has purported to grant interest in land which he did not at the time possess but subsequently acquires, the benefit of subsequent acquisition goes automatically to the earlier grantee. 33

The equitable principle of feeding the estoppel has been recognised to some extent in Sections 43 of the Transfer of Property Act , 1882, which says that where a person fraudulently or erroneously represents that he is authorised to transfer certain immovable property and professes to transfer such property for consideration, such transfer shall, at the option of the transferee, operate on any interest which the transferor may acquire in such property at any time during which the contract of transfer subsists. But the right of transferees in good faith for consideration without notice of the existence of the said option shall not be impaired. In such cases the subsequent interest enduring to the benefit of the transferor is said to feed the estoppel which is subsisting in the transferee so as to preclude the transferor from contending that the transferee has no right to his subsequently acquired property. 34 The option to be exercised in Section 43 of the T.P.A. by the transferee is not required to be exercised in express term or in a particular form and can be implied from the very fact that he has been claiming his right over the entire property and that he was proceeding against not only the transferor but also the so-called subsequent transferees. 35 This principle applies in the case of sale, mortgage, lease, or any such grant. 36 Estoppel by representation does not create interest in property except as provided in Sections 43Transfer of Property Act.37 Where a person transfers property in which he had no right to transfer without making any representation that he had authority to transfer, Section 43T.P. Act would not apply. Similarly when both parties know the truth it would not apply. 38 To entitle a transferee, to the

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benefit of Section 43 there must be a fraudulent or erroneous representation by the transferor that he is authorised to transfer the property which he professes to transfer and the transfer must be for consideration. There is no further requirement that the transferee must have acted in ignorance of the facts and must have believed in the truth of the representation by the transfer. In view of this, Section 43 does not require that the transferee should have made an independent enquiry or taken reasonable care to ascertain whether the transferor had power to transfer the property before claiming the benefit of the section. 39 33 Onkar v. Shamrao, 1996 AIHC 1279 (para 10) (Bom). See also Renu Devi v. Mahendra Singh, AIR 2003 SC 1608 (paras 11 and 12) : (2003) 10 SCC 200. 34 Krishna Chandra Ghosh v. Rasik Lal Khan, (1916) 21 CWN 218. 35 Onkar Hage v. Shamrao, 1996 AIHC 1279 (paras 10, 11 and 15) (Bom), following Girja Shankar v. Jagannath, AIR 1952 All 301 and Gomathy Ammal v. Rukmini Amma, AIR 1967 Ker 58. 36 Deoli Chand v. Nirban Singh, (1879) 5 Cal 253; Vithabai v. Malhar, (1937) 40 Bom LR 147; Radhey v. Mahesh, ILR 7 All 864; Mokhoda v. Umesh, 7 CLJ 381; Jan Mohammad v. Karam, AIR 1947 PC 99; Tilakdhari v. Khedan, AIR 1921 PC 112; Gurnarain v. Sheolal, AIR 1918 PC 140. 37 Banwari Lal v. Sukhdarshan, AIR 1973 SC 814. 38 Jumma Masjid v. Kodimani, AIR 1953 Mad 637(FB) ; Parmanand v. Champa Lal, AIR 1956 All 225(FB) ; Deoman v. Atmaram, AIR 1948 Nag 122. 39 Veera Swami v. Subba Rao, AIR 1957 AP 288; See also Sarat v. Gopal, ILR 20 Cal 296; Pandiri v. Karoomurthy, ILR 34 Mad 159; Chakrapani v. Gayamoni, AIR 1918 Pat 534.

8. SECTION 41, T.P. ACT Section 41, T.P. Act is similar in principle to Section 115. When an owner transfers property with apparent ownership and right of disposition thereof, he would be estopped from claiming title against a person to whom his original transferee disposed of the property and who took it in good faith and for consideration. 40 Principles of equity on which Section 41 of the T.P. Act, and Section 115 of the Evidence Act are based apply also to court sales. 41 Consent of the real owner need not be given to transfer. If it is proved by the transferee after taking requisite care to ascertain that the transferor had power to make transfer and he act ed in good faith, he would be protected. 42 Section 41, T.P. Act would not apply when the transferee had not taken care to ascertain the transferor's title and where the ostensible owner was not in possession with the consent of the real owner. 43 Section 41, T.P. Act would not apply to a transfer prohibited by any statute. 44 Though the rule under Section 53-A, T.P. Act creates no right, it creates right of estoppel between the transferor and the transferee, which have no operation against third persons not claiming under those persons. 45 Reference may be made to commentary on Section 53-A of T.P. Act in Mulla's Transfer of Property Act and other standard treatises on that Act. 40 Li Tse Shi v. Pang Tsoi, AIR 1935 PC 208. 41 Sheikh Hussain v. Phoolchand Harichand, AIR 1952 Nag 64. 42 Ramjanam v. Beyas Singh, AIR 1958 Pat 537. 43 Md. Shafi v. Md. Said, ILR 52 All 248 : AIR 1930 All 847. 44 Sannamma v. Radhabai, ILR 41 Mad 418(FB) . 45 S.N. Banerji v. K.L. & S. Co., AIR 1941 PC 128.

9. PERSON

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The term 'person' applies only to a person of full age and competent to enter into contracts. If an infant represents fraudulently or otherwise that he is of age and thereby induces another to enter into a contract with him, the infant is not estopped from setting up infancy in an act ion founded on the contract. 46 But the court has discretion in equity to direct the minor to return the benefit he has received by false representation to the person he has deceived. 47 The Allahabad High Court has held that upon equitable grounds he may be made liable for any loss which the plaintiff has suffered. 48 The Privy Council has not decided the point though the Calcutta High Court in its decision has expressly decided it. 49 Under the English law a minor is not estopped from pleading his minority. An infant by fraudulently representing that he was of full age induced the plaintiffs to lend him a sum of money. In an action by the plaintiffs to recover the money it was held that the cause of act ion was in substance ex contractu, that the plea of infancy was a good answer to the action, and that the defendant was under no equitable liability to the plaintiffs. 50 When an infant obtained an advantage by falsely stating himself to be of full age, equity required him to restore him ill-gotten gains, or to release the party deceived from obligations or act s in law induced by the fraud, but scrupulously stopped short of enforcing against him a contractual obligation, entered into while he was an infant, even by means of fraud. 51 This case has been approved by the Privy Council. 52 46 Gadigeppa v. Balangowda, (1931) 33 Bom LR 1313 : ILR 55 Bom 741 (FB); Brahmo Dutt v. Dharmo Das Ghose, (1898) 26 Cal 381; Manmatha Kumar Shaha v. Exchange Loan Company Ltd., (1937) 1 Cal 283; Mukul Chandra v. Sasadhar, (1941) 45 CWN 907; Vaikuntarama Pillai v. Authimoolam Chettiar, (1914) 38 Mad 1071; Radhe Shiam v. Bhihari Lal, (1918) 40 All 558; Radha Kishen v. Bhorey Lal, (1928) 50 All 862 : AIR 1928 All 626; Kumar Ganganand Singh v. Maharaja Sir Rameshwar Singh Bahadur, (1927) 6 Pat 338; Khan Gul v. Lakha Singh, (1928) 9 Lah 701(FB) ; The former Judicial Commissioner's Court in Nagpur had held likewise; Gulabchand v. Chunnilal, (1929) 25 NLR 85. 47 Khan Gul v. Lakha Singh, (1928) 9 Lah 701(FB) ; Vaikuntarama Pillai v. Authimoolam Chettiar, (1914) 38 Mad 1071; Kumar Ganganand Singh v. Maharaja Sir Rameshwar Singh Bahadur, (1927) 6 Pat 388. 48 Jagar Nath Singh v. Lalta Prasad, (1908) 31 All 21; Radha Kishen v. Bhorey Lal, (1928) 50 All 862. 49 Mohori Bibee v. Dharmadas Ghose, (1903) 30 IA 114, 122 : ILR 30 Cal 539, 545 : 5 Bom LR 421, 424. 50 Leslie Limited v. Sheill, (1914) 3 KB 607; Sat Narain v. Union of India, (1968) 2 SCWR 335; State of Madras v. Madras Electric Tramways, AIR 1957 Mad 169. 51 Lesli Limited v. Sheill, (1914) 3 KB 607. 52 Mahomed Syedol v. Veohool Yark, (1916) 43 IA 256 : 19 Bom LR 157; followed in Muliabai v. Garud, (1919) 15 NLR 149.

10. ESTOPPEL BY CONDUCT--DECLARATION, ACT OR OMISSION All the three can be clubbed together under the expression "Conduct" and may be considered under the head "Representation by Conduct". When a person has by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief neither he nor his representative shall be allowed, in any suit, or proceeding between himself and such person or his representative to deny the truth of that thing. This is estoppel by conduct. 53 To raise an estoppel by conduct, a person must by word or conduct induce another to believe that a certain state of things exists, and to cause that other to act on that belief in a way he would not have done had he known the facts, so that, if, in an act ion between them, the person making a representation were allowed to prove the true facts--to tell the truth--the other person would have been prejudiced. If these two conditions are fulfilled, then the person making the representation will not be allowed to deny its truth in any action between him and the person to whom he made it or the persons who claim in the same right. But in any other act ion he can deny its truth. The ways in which a person may make such a representation are infinite. He may speak or write, act or omit to act, or act negligently.

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The following are the recognised propositions of an estoppel by conduct: 23)   If a man by his words or conduct wilfully endeavours to cause another to believe in a certain state of things, which the first knows to be false, and if the second believes in such state of things, and act s upon his belief, he who knowingly made the false statements is estopped from averring afterwards that such a state of things did not, in fact, exist. 22)   If a man, either in express terms or by conduct, makes a representation to another of the existence of a certain state of facts which he intended to be acted upon in a certain way, and it be act ed upon in that way, in the belief of the existence of such a state of facts, to the damage of him who so believes and acts, the first is estopped from denying the existence of such state of facts. 12)   If a man, whatever his real meaning may be, so conducts himself that a reasonable man would take his conduct to mean a certain representation of facts, and that it was a true representation, and that the latter was intended to act upon it in a particular way, and he, with such belief, does act in that way to his damage, the first is estopped from denying that the facts were as represented. 9)   If, in the transaction itself which is in dispute, one has led another into the belief of a certain state of facts, by conduct of culpable negligence calculated to have that result, and such culpable negligence has been the pomixate cause of leading and has led the other to act by mistake upon such belief, to his prejudice, the second cannot be heard afterwards, as against the first, to show that the state of facts referred to did not exist. 54 Estoppel by conduct is distinguished from estoppel by record which constitutes the bar of res judicata. Even if the principle of res judicata is not applicable, the party can rely on estoppel by conduct. 55 Estoppel by conduct is of the very essence of the rules of estoppel embodied in Sections 115, 116 and 117 of the Evidence Act. The act s of the parties which come in for consideration in a litigation, must necessarily be acts performed prior to the commencement of the litigation. 56 When a person has by his declaration, act or omission intentionally caused or permitted another person to believe a thing to be true and to act upon such belief neither he nor his representative shall be allowed, in any suit, or proceeding between himself and such person or his representative to deny the truth of that thing. This is estoppel by conduct. 57 Where the owner of the property clothes a third person with apparent ownership of property and right of disposition thereof and the third party disposes of that property, the real owner is estopped from asserting his title against the transferee in good faith and for value. 58 Where a mother was appointed by the court as guardian of the minor daughters on the basis of a statement by the mother that she would not claim interest in the property adverse to the daughters, she is estopped from filing a suit for possession of property on the basis of her title in respect of the son's property. 59 Where the Revenue in an earlier case had accepted the decision that certain items were entitled to MODVAT credit and did not go in appeal, it cannot be permitted to take a different stand in a subsequent case. 60 Where the grant in favour of the highest bidder in an auction was cancelled, and a second auction was held, in which the previous highest bidder participated, he is estopped from questioning the validity of the cancellation of the earlier auction in his favour. 61 In a case, a husband and wife jointly invested in the post office Monthly Income Scheme, showing their son as their nominee and after the death of the husband the wife applied for their son to be substituted in place of her husband which was allowed. Thereafter, the mother and the son jointly invested in the said Scheme. They were estopped from contending later on that the continuing the joint scheme in their name was contrary to the rules. 62 Where the appellants got allotment of shops in an open auction for rent in their favour and they enjoyed the possession of shops for a long time, it was held that they could not turn back and urge that the policy of putting the shops to auction, was untenable. 63 Where without demur the parties to lease deed accepted the terms contained in the mining lease and took the benefit of the same for one year, they were not entitled to question the legality and validity of the condition of the mining lease. 64 Where the minor obtained fruits of two decrees in earlier two cases and there was no case that earlier proceedings were null and void and no prayer for setting aside those decrees was made and no ground in the

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plaint was taken that earlier decrees were not binding and that his interests were not properly represented, now he could not turn round and say that it had affected his interest. 65 The fact that the wife was earlier married and divorced was duly published in matrimonial advertisement and even disclosed in the Church Marriage Register Book which was signed by both the husband and wife. Having this accepted the divorce to be valid and having contracted the marriage and the consummated the same and begotten a child out of the wedlock, the husband was estopped from contending that the wife was not eligible for contracting such a marriage or that the marriage between them was a nullity. 66 The fact that the plaintiff had repeatedly demanded the balance amount after receipt of Rs. Two lacs from the defendant goes to show that the payment was not received by the plaintiff in full and final settlement of its bill for the professional service rendered. Hence the defendant has no case to estop the plaintiff from demanding the balance amount. 67 Where the landlords had stated in the plaint of an earlier suit that the tenancy was granted for running the school and from the copy of the said plaint it appeared that the head-master of the school was only a name lender of the said school and the said school was a real tenant, it was held that in view of the fact that the copy of the said plaint had been filed by the landlords/appellants, the appellants were estopped from contending to the contrary to what had been stated by them in the said plaint. 68 Where the proposals of the petitioner for one time settlement, were made before the joint meeting of the representatives of the three financial institutions, convened in terms of the directions of the Court, and on rejection of the proposals by the financial agencies the petitioner without objecting to such rejection after its communication, participated in the auction proceeding before the same representatives in their meeting held thereafter it was held that the petitioner was estopped to say that it was not an appropriate authority to consider the said proposals. 69 Where the plaintiff had availed the remedy of reference under Land Acquisition Act (1 of 1894) for enhancement of compensation, he was estopped by his own act and conduct to challenge the acquisition proceedings by filing a suit subsequently. 70 Where the defendant showed in his income-tax return on his own accord that payments were made by the plaintiff and only some of amount was recoverable from the plaintiff, he was estopped from denying payment except the balance amount shown in his said income-tax return. 71 Where the defendant had agreed to perform according the memorandum of understanding, she was bound to perform the contract unless the plaintiff desired to avoid and she could not contend otherwise. 72 Where the bills were to be prepared by the contractor, failing which they were prepared by the department which were accepted by him under protest without showing any reason for the same, and after keeping silence for two years, he issued statutory notice in furtherance of his protest, it was held that he was estopped from raising any dispute in respect of the bills. 73 Estoppel by conduct is on the same footing as estoppel by representation. 74 The party against whom estoppel is pleaded should have made some representation intended to induce a course of conduct by the party to whom it is made. 75 Where a non-transferable holding is sold by a tenant by a Kobala , he is estopped from setting up the invalidity of the sale by him. 76 The form of representation may be oral or written. 77 Admissions in affidavits filed by the Government which are mere expression of opinion limited to the context and not specific assurance, are not binding on the Government to create any estoppel. 78 Decree holder A himself asked the executing court to secure permission of competent authority for sale of property since judgement debtor B belonged to Scheduled Tribe. It was held that A could not be permitted to dispute that B did not belong to Scheduled Tribe and therefore permission of competent authority was not needed. 79 Where the defendants had been receiving deficit grant from the Government on the representation that a certain amount had to be paid on account of house rent for the school building, it hardly lies in the mouth of the defendants to assert that there is no liability to pay rent for the school building. 80 Where there was provision for automatic absorption of the employees to S-3 pay scale but an employee insisted for his absorption to the higher pay scale of S-4, hence he was kept out of the scheme of absorption to which he made no objection and enjoyed certain benefits out of his exclusion, an inference could be drawn that by his conduct he had "opted out" of the scheme and was estopped to insist for absorption subsequently. 81 In a case an industrial unit was seized and sold by a Corporation under the A.P. State Financial Corporation Act . The respondent industrial unit raised the plea of absence of notice and opportunity and non-communication of the Corporation's decision for the first time in the writ petition before the H.C. Whereas after the sale, a certificate was issued by a

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Bank on the request of the respondent regarding its loan amount outstanding to the Bank. The said certificate made it clear that it wanted that the balance amount remaining after adjusting the dues to the Corporation should go in the discharge of its dues to the Bank and the Corporation paid the amount covered by the certificate to the Bank out of the balance of sale proceeds. It was held that the respondent's conduct estopped it from questioning the sale. 82 In a case an employee, having been convicted under the I.P.C. was removed from service. After undergoing imprisonment he appealed to the appellate authority which reduced his punishment of removal from service to lower pay scale, denying back wages which he accepted and joined duty. He was estopped subsequently from filing a suit for declaration that his removal from service, reduction in rank and denial of back wages was illegal.83 In a proceeding challenging the grant of stage-carriage permit, the party failed to raise the ground of improper constitution of State Transport Authority before the tribunal, she was debarred by her conduct to raise it in the writ petition. 84 Where in a case of ex parte order of eviction against the tenant, the tenant applied under Section 144,C.P.C. for restoration of possession which having been allowed, he applied for an order for payment of compensation under the same section for the period of dispossession, it was held that the tenant could have included the claim for compensation in the application for restitution itself, he could not apply afresh as he was estopped by his own conduct. He could not vex a man twice for the same cause of action. 85 Where the Govt. granted affiliation to a college for a certain period and the college accepted the benefit, it could not subsequently raise objection against the said grant. 86 Where a party willingly and voluntarily entered into a mining contract within time limit of six months and worked and derived benefits thereunder, it cannot turn round and say that the said contract enured for twenty years as per Rules. 87 Where in a sale of land by a muslim father, his son himself attested the sale-deed without any objection though it was against his interest, he was estopped from challenging the sale subsequently. 88 Where the owner of the acquired land had accepted the amount of compensation without any demur whatsoever, he as well as his successors in interest are estopped and precluded from claiming the title over the land. 89 However, in a case of re-assessment of annual value of the house by the Municipality, on the plea that the son of the owner of the property agreed to re-assessment, the father could not be estopped from challenging the re-assessment especially when there was no occasion for getting signature of the son when both the father and the son were present. Besides, there was no mention that the son had accepted the enhancement of the annual value. 90 Where the petitioners, the contestants of the election who did not challenge the order of the appointment of the Administrator of the society issued by the state Government and taking over its charge and accepting him as an Administrator for a long period, were estopped from challenging the election conducted by the such Administrator even if he would not have an authority to conduct the election. 91 Under the Assam Panchayat Act (XXIV of 1959), Section 3(1) and (2), a Gaon Sabha created by State Government recommended creation of another Gaon Sabha out of its area. The Gaon Sabha was held estopped from challenging the creation thereof by the State Government. 92 High Court would be loathsome to exercise its discretionary power to interfere at the instance of a party whose conduct is not free from blemish or who has either acquiesced or been a privy to the mischief sought to be remedied. 93 Under the ordinary law of master and servant, once an employer has condoned any misconduct attributed to an employee, which would have otherwise justified his dismissal or punishment, the employer cannot after such condonation go back upon his election to condone and assert a right to punish the servant. This principle however does not apply where an employee is governed by statutory rules, and under the law, the employer is required to consider the case of an employee for promotion against whom a preliminary enquiry is pending. The promotion so made would not amount to condonation of misconduct which is the subject-matter of inquiry. 94 Where the petitioner himself participated in the election of the Assembly Speaker and thereafter took part in the Assembly proceedings for about six months, he was estopped to challenge the said election. 95 Where the last date for filing nomination papers was altered to a later date and the petitioners filed their nomination papers after the original date and contested the election but were unsuccessful, they cannot, turn round and contend that those who filed their nomination papers after the original date had no right to contest the election. 1

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A testator, who was survived by his wife, a son and a married daughter, created a life estate in his property in favour of his wife and vested the remainder of the property to his son. The will was proved to be a genuine and true document. The married daughter pleaded that after the death of her father, her mother and brother had recognized her as co-owner and claimed her share. It was held that, assuming that the mother and the son had recognized her as a co-owner, they could not be estopped from going back from such recognition as the intention of the testator was to be respected. Besides, the subsequent conduct of the mother and the son in recognizing her as co-owner had no significance. 2 In a land acquisition compensation case, the claimant can not be estopped from raising his claim before arbitrator or the Court from the amount which was claimed before the collector particularly when the land-owner of adjacent plot was awarded at enhanced rate for the same category of land. 3 Statement at the time of mutation could not be regarded as a case of relinquishment of ones rights. Nor could the person be estopped by his conduct from putting forward any legal plea questioning the mutation. 4 When an appeal was filed against direction for payment of decretal amount in instalments in money suit without filing a copy of decree and was withdrawn immediately after filing a subsequent appeal against decree on merits, it was held to be not barred due to earlier appeal, as the appellant was not estopped by conduct from filing the subsequent appeal. Where a party at an earlier point had agreed to appoint an arbitrator without examining or knowing the full facts and issued notices to that effect, the same does not come in its way of demonstrating that there was no agreement. 5 See Civil P.C. (1908) S. 2(2). 6 53 Venkata Swamy Naidu v. Sornammal, (1970) 1 Mad 336. 54 Per B RETT . J., in Carr v. London and North Western Railway Co., (1875) LR 10 CP 307, 316, 317, 318. No estoppel arises from a mere participation in the selection of a lessee. Pukh Raj v. State, AIR 1980 Raj 83. 55 Sunder bai v. Devaji Shankar, AIR 1954 SC 82. 56 Abdul Shakur v. Kotwaleshwar Prasad, AIR 1958 All 54. 57 Venkata Sami Naidu v. Soranammal, (1970) 1 Mad 336. 58 Li Tse Shi v. Pong Tsoi Ching, AIR 1935 PC 208. 59 Harchand Singh v. Moninder Kaur, AIR 1987 P&H 138. See also R. Murali v. Kanyaka P. Devasthanam R. Charities, (2005) 6 SCC 166, 171 (para 17) : AIR 2005 SC 3096. 60 Birla Corporation Ltd. v. Commissioner of Central Excise, (2005) 6 SCC 95, 97 (para 5). 61 Rahaman Bhan v. State of Orissa, AIR 1989 Ori 233(DB) . 62 Union of India v. Sarla Dhruvakumar Shukla, AIR 2004 Guj 150, 152 (para 6) : 2004 (1) Guj LH 1. 63 Vijay Raj Kailash Chandra v. State of Rajasthan, AIR 2004 Raj 20, 21 (para 11) : 2004 (1) Raj LW 633 : 2004 (2) Raj LR 27 : 2004 (1) WLC 1 on this point the High Court has referred a lot of decisions of the Apex Court. 64 C. Narayana Reddy v. Commr. of Panchayat Raj, AIR 2004 AP 234, 242 (para 33) : 2004 (2) Andh LT 94. 65 Muthakke v. Devanna Rai, AIR 2002 Ker 301, 308. 66 Deva Prasad Reddy v. Kamini Reddy, AIR 2002 Kant 356, 363 : 2002 AIR Kant HCR 1722 : 2002 (4) Civ LJ 295 : 2002 (2) DMC 482 : 2002 (3) ICC 657 : ILR (Kant) 2002 (3) Kar 2835 : 2003 (1) Marri LJ 252 : 2002 (4) Rec Civ R 758. 67 S. Butail and Company v. H.P. State Forest Corporation, AIR 2002 HP 1, 6 : 2002 (1) Shim LC 319. 68 Anadi Mohan Rashit v. Nalim Sarker Street U.P. School, AIR 2002 Cal 22. 69 Lords Food Products (India) Pvt. Ltd. v. Orissa State Fin. Corpn., AIR 2002 Ori 156, 162 (para 10). 70 Union of India v. Ujagar Singh, AIR 2003 P&H 297, 301 (para 15). 71 Bapulal Walchand Jain v. Pandurang Vithal Pingle, AIR 2003 Bom 5 : 2002 (3) All MR 412.

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72 Volition Investment Pvt. Ltd. v. Madhuri Jitendra Mashroo, AIR 2003 Bom 360 : 2003 (2) All MR 900 : 2003 (5) Bom CR 262. 73 Govt. of Gujarat v. R.L. Kalathia & Co., AIR 2003 Guj 185, 198. 74 Govindsa Marotisa v. Ismail, AIR 1950 Nag 22. 75 P.K.A.B. Co-op. Society v. Govt. of Palestine, AIR 1948 PC 207. 76 Bhagirath v. Haffizuddin, 4 Cal WN 679; Dayamoyi v. Ananda, 18 CWN 971(FB) ; Chandra v. Shaik Alla, 24 Cal WN (FB). 77 Great Indian Peninsula Railway Co. v. Hanmandas Ramkison, (1889) 14 Bom 57. 78 N.C. Singhal v. Union of India, AIR 1980 SC 1255. 79 Raghunath Pradhani v. Damodra Mahapatra, AIR 1978 SC 1820. 80 Management Committee, T.K. Ghosh's Academy v. T.C. Palit, AIR 1974 SC 1495 : (1974) 3 SCR 872. See also Tata Iron & Steel Co. Ltd. v. Union of India, AIR 2000 SC 3706 (paras 22 and 23). 81 Indian Council of Agricultural Research v. A.N. Lahiri, AIR 1997 SC 2259. 82 A.P. State Financial Corporation v. Vajra Chemicals, AIR 1997 SC 3059. 83 State of Punjab v. Krishan Niwas, AIR 1997 SC 2349. 84 Sushila Chand v. State Transport Authority, Orissa, AIR 1999 Ori 1 (para 13). 85 Shakuntala Bai Sangewar v. Gopi Chand Gupta, 1999 AIHC 2860 (para 12) (MP). 86 Managing Trustee, Rajkot v. State of Gujarat, AIR 1998 Guj 161 (paras 16 and 17). 87 Navayuga Exports Ltd. v. A.P. Mineral Development Corporation, AIR 1998 AP 391 (para 8), following State of Orissa v. Narain Prasad, AIR 1997 SC 1493 : (1996) 5 SCC 740 and Har Shankar v. Dy Excise and Taxation Commissioner, AIR 1975 SC 1121 : (1975) 1 SCC 737. 88 Mahboob Sahab v. Syed Ismail, AIR 1995 SC 1205 (para 7). See also Govindamma v. Thimmakka, 2005 AIHC 312, 313 (para 10) (Kant), following Naya Kammal v. S. Munnuswami Mudaliar, AIR 1924 Mad 819, 822; Gandeti Surya Kantham v. Gandeti Subba Rao, AIR 2004 AP 533, 537, 538 (paras 18 & 19) : 2004 (5) Andh LD 553; B. Manjunatha Prabhu v. C.G. Srinivas, AIR 2005 Kant 136, 153, 155 paras 16 & 17. 89 M.T.W. Tenzing Namgyal v. Motilal Lakhotia, AIR 2003 SC 1448 (para 29) : (2003) 5 SCC 1. 90 Budh Ram v. Municipal Committee, Mansa, AIR 2005 NOC 258(B) (P&H). 91 Sumer Chand Chhajed v. Administrator, G.S. Samiti, AIR 2002 Raj 76, 90 (para 35) : 2002 (4) Raj LW 2122 : 2002 (2) WLC 128. 92 Premnath Das v. State of Assam, AIR 1969 Assam 61. 93 G.C. Prabhuswamy v. Special Deputy Commissioner, Tumkur, AIR 1997 Kant 253. 94 State of M.P. v. R.N. Mishra, AIR 1997 SC 3548, distinguishing Lal Audhraj Singh v. State of M.P., AIR 1967 MP 284. 95 A. Elumalai v. Administrator-cum-Lt. Governor of Pondicherry, AIR 2001 Mad 265 (para 36). 1 Ravi Kiran Jain v. Bar Council U.P., AIR 1975 All 190. 2 P.V. Bagirathi v. Shubha Rao, 2002 AIHC 1541, 1550 (para 21) (Mad). 3 Union of India v. Kamal Kant Gupta, AIR 2002 J&K 115, relying on Padamashri Humayun Mirza v. The Station Director, AIR 1975 Kant 124 and Divisional Controller, K.S.R.T.C., Banglore v. J.D. Signmany, AIR 1998 Kant 274. 4 Niamat Singh v. Darbari, AIR 1956 Punj 230; See also Badrinarain v. Bageshwari Prasad, AIR 1951 Pat 274. 5 Dresser Rand S.A. v. Bindal Agro Chem Ltd., AIR 2006 SC 871, 886 (paras 42-43) : (2006) 1 SCC 751.

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6 M. Ramnarain (P) Ltd. v. State Trading Corpn. of India Ltd., AIR 1983 SC 786.

11. DECLARATION--RECITAL IN A DEED A recital in a deed or other instrument is in some cases conclusive, and in all cases evidence as against the parties who make it, and it is of more or less weight or more or less conclusive against them according to circumstances. It is a statement deliberately made by those parties, which, like any other statement, is always evidence against the persons who make it. But it is no more evidence as against third persons than any other statement would be. 7 A recital in a deed or other instrument is in some cases evidence against the party who makes it to attract estoppel but it is not evidence against other persons. 8 Where a deed describes that the land was of a particular category and the parties dealt with on that basis, it is not open to the parties to resile from that position. 9 Where the executant mentioned in the document that he was the sole owner of the property and that he was entitled to execute the document, it is not open to him to resile from the document and say that he was not entitled to execute the same. 10 Sale deed of abadi site contained an stipulation that the vendor was not responsible for obtaining consent of the landlord to the transfer and that vendee was responsible for the same. The stipulation did not in any way amount to an admission that the site was not liable to be sold without the consent of the landlord or that he had a right to recover possession of the site and that the vendee was not estopped from asserting his ownership to abadi site. 11 Under the Bengal Tenancy Act as well as theKobala under which a stranger purchased the holding, it was described as an occupancy holding. The occupying tenant sought pre-emption of land. It was held that the purchaser was estopped from challenging the right to pre-emption of the occupancy tenant. 12 Where the recital in a deed is intended to be a statement which all the parties to the deed have mutually agreed to admit as true, it is an estoppel upon all. But where it is intended to be a statement of one party only the estoppel is confined to that party--when in a deed of sale, the vendors make unilateral statement that the vendors are potinamdars of the property transferred, the vendees are not bound by it and they are not estopped from denying that fact. 13 Where the vendor receives consideration and delivers possession of property without executing the sale deed, he is estopped from repudiating the fiduciary obligation arising out of contract after a long lapse of time. 14 Where a person settles a residential colony on his land and sells plots on the representation that a certain land marked as park in the plan would be used as such by them, he is estopped from claiming the land subsequently as his private land. 15 Where the defendant admitted in deed of agreement, affidavits, vouchers and power of attorney that he had handed over the property in suit to the plaintiff on the date of execution of agreement and a huge amount was paid to the defendants by the plaintiff on that day, it was held that the defendant could not turn around and say that the recitals regarding delivery of the possession in the agreement were made for the sake of papers only. 16 Where in an agreement to sell, the defendant agreed to execute the sale deed of the land and to deliver the possession after getting the right to transfer and after six months through rectification deed he admitted that he had delivered the possession of the land to the plaintiff, the defendant could not be allowed to retreat from such admission after a lapse of long period of eight years. 17 Where the respondents through valid agreements have specifically agreed to pay berth hire charges for the use of two places for the purpose of dismantling of ships, they are not entitled to question the demands of charges by raising a plea that said two places cannot be treated as berths so as to entitle the port trust to levy berth hire charges. 18 Where respondents have not taken any advantage under the family settlement/ partition deed, the principle of estoppel is not applicable against them. 19 Maps annexed to a sale deed ought not to be deemed part of deeds.

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7 Brajeshwara Peshakar v. Budhanuddi, (1880) 6 Cal 268; Tehilram Girdharidas v. Kashibai, (1908) 10 Bom LR 403 : ILR 33 Bom 53; Darisi Masthanamma v. Mandiga Rama Krishna, AIR 2006 AP 286, 290-91 (para 17). 8 Narayana v. Kanniammal, 1953 Tra Co 417. 9 Narayan v. Kamnammal, AIR 1973 Mad 471.

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10 Lakshmi v. Kaladevi, AIR 1977 All 509. 11 Vithal Singh v. Binji Bai, AIR 1951 Nag 454. 12 Chaitanya Charan Nayak v. Manik Chandra Nandy, AIR 1972 Cal 520. 13 Dattatraya Prahlad v. Basawanappa Chanabasappa, ILR 1960 Mys 1092. 14 Ghulam Qadir v. Ghulam Hussain, AIR 1973 J&K 11 (FB). 15 Nrimal Kumar v. Champabala, AIR 1971 Cal 407. 16 Chetak Construction Ltd. Indore v. Om Prakash, AIR 2003 MP 145, 153 : 2003 (3) Civil Court C 477. 17 Desh Raj v. Dharam Veer Singh, 2005 AIHC 4188, 4190 (para 9) (All). 18 Board of Trustees for the Port of Calcutta v. Jain Udyog, AIR 2004 Cal 153, 159 (para 20). 19 Jai Raj Singh v. Shanti Kishan Singh, AIR 2004 Raj 311, 319 (para 24) : 2004 (3) Raj LW 1774 : 2004 (3) Raj LR 124 : 2004 (3) WLC 652; Distinguished, Kale v. D.D.C., AIR 1976 SC 807. 20 Shamlal Batra v. B.N. Patel, AIR 1973 SC 8162.

12. FUTURE PROMISE To create an estoppel there must be a representation by means of a declaration, act or omission that a thing is true, i.e., that the representation is as to some state of facts alleged to be at the time actually in existence. If the representation relates to a promise de futuro, it can be binding not as an estoppel but as a contract. 21 A mere promise to do something in future will not create an estoppel. 22 There is a clear distinction between a representation of an existing fact and a representation that something will be done in future. The former may, if it amounts to a representation as to some fact alleged at the time to be act ually in existence, raise an estoppel, if another person alters his position relying upon that representation. A representation that something will be done in the future may result in a contract if another person to whom it is addressed acts upon it. 23 Under Section 115 estoppel could be created not merely by an act or omission but also by declaration or representation which must necessarily be of existing fact, not of promise to do something in future which might or might not be enforceable in contract. 24 Where an employee on termination of his service passes a receipt saying that he had no further claim against his employer and it is found that the receipt was executed without reference to bonus which was not, and could not even then have been, in the contemplation of both parties it does not constitute an estoppel against the employee's subsequent demand for the bonus declared afterwards in respect of the period during which he was in service. 25 Where a party itself surrendered a strip of land to Municipal Corporation for road widening with the condition precedent for securing change of land use, it was held that after availing benefit of change of land use, he could not turn round and claim compensation for land which had been surrendered voluntarily. 26 21 Jethabhai v. Nathabhai, (1904) 28 Bom 399, 407 : 6 Bom LR 428; R. Carnac v. New Mofussil Company, (1901) 26 Bom 54 : 3 Bom LR 846; Parshottam v. Secretary of State, (1937) 39 Bom LR 1257. 22 Ma Pyu v. Maung Po Chet, (1916) 2 UBR (1914-1916) 148. 23 Century Spg. & Mfg. Co. v. Ulhasnagar Municiple Council, AIR 1971 SC 1021; Seth Safuarain v. Union of India, (1968) 2 SCWR 335; State of Madras v. Madras Electric Tramway, 1957 Mad 169. 24 Balapur Co. Ltd. V. State of Maharashtra, ILR 1971 Bom 89; Jethabai v. Nathabai, ILR 28 Bom 399; See also Dawson's Bank Ltd. v. Nippon M.K. Kaisha, 39 Cal WN 657; White-church v. Cavanagh, 1902 AC 117; Kelson v. Imperial Tobacco Co., (1957) 2 All ER 343; Amulya v. Tarini, ILR 42 Cal 254; relying on Citizen's Bank v. Bank of N.O., (1874) LR 6 HL 352, 360.

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25 William Goodacre v. Mathan, AIR 1957 Ker 16. 26 P.C. Seethamma v. Municipal Corporation, AIR 2004 NOC 261(AP) : 2004 AIHC 524 : 2004 (1) Andh WR 155.

13. INTENTIONALLY CAUSES OR PERMITS A person who, by his declaration, act or omission, had caused another to believe a thing to be true and to act upon that belief, must be held to have done so 'intentionally' if a reasonable man would take the representation to be true, and believe that it was meant that he should act upon it. 27 At times even an innocent or mistaken representation may operate as an estoppel. 28 It is not essential that the person making the representation which induces another to act must be influenced by a fraudulent intention. A fraudulent intention is not necessary to create an estoppel. The determining element is not the motive with which the representation has been made, nor the state of knowledge of the party making it, but the effect of the representation as having caused another to act on the faith of it. 29 The Allahabad High Court has held that the word intentionally does not mean that the conduct of the person making the representation should have been fraudulent or that it should not have been made under a mistake or misapprehension. The motive or state of knowledge of the representor is immaterial. The law only considers the position of the person to whom the representation was made. 30 The section "does not make it a condition of estoppel resulting that the person who by his declaration or act had induced the belief on which another has acted was either committing or seeking to commit a fraud, or that he was act ing with a full knowledge of the circumstances, and under no mistake or misapprehension...What the law and the Indian statute mainly regard is the position of the person who was induced to act; and the principle on which the law and the statute rest is, that it would be most inequitable and unjust to him that if another, by a representation made, or by conduct amounting to a representation, has induced him to act as he would not otherwise have done, the person who made the representation should be allowed to deny or repudiate the effect of his former statement, to the loss or injury of the person who acted on it." If the person who made the statement did so without full knowledge, or under error, it may, in the result, be unfortunate for him, but it would be unjust, even though he act ed under error, to throw the consequences on the person who believed his statement and acted on it as it was intended he should do. 31 "An estoppel does not in itself give a cause of act ion; it prevents a person from denying a certain state of facts. One ground of estoppel is where a man makes a fraudulent misrepresentation and another man acts upon it to his detriment. Another may be where a man makes a false statement negligently, though without fraud, and another person act s upon it. And there may be circumstances under which, where a misrepresentation is made without fraud and without negligence, there may be an estoppel." 32 There may be statements made, which have induced another party to do that from which otherwise he would have abstained, which cannot properly be characterised as misrepresentation, but which amount to estoppel. 33 The word 'caused...person to believe a thing to be true' refer to the belief in a fact and not in proposition of law. 34 "Believe a thing to be true", i.e., believe a fact to be true. The word 'thing' means fact. 35 It must be found that the defendant by his act or omission intentionally caused or permitted another person to believe a thing to be true and to act upon such belief. It is not sufficient to say that it may well be doubted whether the plaintiff would have acted in the way he did but for the way in which the defendant had act ed. It must be found that the plaintiff would not have acted as he did. 36 If a man, either by words or by conduct has intimated that he consents to an act which has been done, and that he will offer no opposition to it, although it could not have been lawfully done without his consent and he thereby induces others to do that from which they otherwise might have abstained, he cannot question the legality of the act he had so sanctioned, to the prejudice of those who have so given faith to his words, or to the fair inference to be drawn from his conduct. 37 The petitioner represented that he wanted to hold ice shows for a limited duration. The first round of shows in the various cities of India was over. The Reserve Bank was not estopped from refusing further permission. There was no representation that they would be permitted till their foreign exchange was exhausted. 38 Where the

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constructions of house of the appellant had been going on for two months and respondent has act ively taken part in the construction of her house and allowed to take support of his walls and to join the ends to her walls to that of his walls without any objection and then objected to such support or joining of walls, he could not be allowed to turn around and claim for the demolition or removal of construction after two years of such constructions which was encouraged, consented and acquiesced by him. 39 27 Sarat Chunder Dey v. Gopal Chunder Laha, (1892) 19 IA 203, 219 : ILR 20 Cal 296, 314, quoted in Niharbala Debi v. Shasdhar Ray Chaudhuri, (1930) 58 Cal 358, 364. 28 Sarat v. Gopal, ILR 20 Cal 296; Vagliano v. Bank of England, 1891 AC 197. 29 Cairncross v. Lorimer, (1860) 3 Macq. HLC 827; Jagon Bai v. Ram Khichaven, 1986 MP 106; Geetha Mishra v. Utkal University, AIR 1971 Ori. 276. 30 Harbans Lal v. Div. Supdt., Central Rly., AIR 1960 All 164; Sheonarayan v. Jageshwar Kuer, AIR 1950 Pat 9. 31 Sarat Chunder Dey v. Gopal Chunder Laha, (1892) 19 IA 203, 215 : ILR 20 Cal 296, 311, overruling Ganga Sahai v. Hira Singh, (1880) 2 All 809(FB) ; Vishnu v. Krishnan, (1883) 7 Mad 3 : (FB); Assurabai v. Haribai, ILR (1943) Kar 227. 32 Per L ORD E SHER , M.R., in Seton v. Lafone, (1887) 19 QBD 68, 70. 33 Sarat Chunder Dey v. Gopal Chunder Laha, (1892) 19 IA 203 : ILR 20 Cal 296. 34 Rajnarain Bose v. Universal Life Assurance Co., (1881) 7 Cal 594. 35 Vishnu v. Krishnan, (1883) 7 Mad 3(FB) ; Sarat Chunder Dey v. Gopal Chunder Laha, (1892) 19 IA 203 : ILR 20 Cal 296; Tek Chand v. Mussammat Gopal Devi, (1912) PR No. 46 of 1212 (Civil). 36 Narsingdas v. Rahimanbai, (1904) 28 Bom 440 : 6 Bom LR 440; Jhinguri Tewari v. Durga, (1885) 7 All 878, (FB); Hem Nolini v. Isolyne Sarojbashini, AIR 1962 SC 1471. 37 Union of India v. K.P. Mandal, AIR 1958 Cal 415. 38 Arun Kumar v. R.B.I, AIR 1981 Del 314. 39 Dhaniya Bai v. Jiwan, AIR 2003 MP 71, 73 : 2002 (2) MPHT 483 : 2002 (3) MP LJ 174. On this point, the High Court has discussed, decisions of the Apex Court and that of English Courts as well as various High Courts.

14. NO ESTOPPEL WHEN THE OTHER PERSON KNOWS THE REAL FACTS The section does not apply to a case where the statement relied upon is made to a person who knows the real facts and is not misled by the untrue statement. There can be no estopped where the truth of the matter is known to both parties. 40 Where the defendant knew that the buildings in dispute did not belong to him, but had been sold to the plaintiff, and, in spite of that fact, he chose of his own accord to incur expenditure by repairing these buildings, it was held that he could not raise any plea of estoppel. 41 A party relying upon this section has to establish not only that the opposite party had made a certain declaration, but that the said declaration had been believed and had been acted upon and that it was not reasonably possible for the said party to know the true state of affairs by pursuing inquiries reasonably and with diligence. Where truth is accessible to a party, the plea of estoppel upon representation fails. 42 If a person is aware of the state of affairs or had means of knowledge there can be no estoppel. 43 Where a person makes a representation in a mistaken view of a fact and the person to whom such representation is made, knows the true state of facts, there is no estoppel. The person having knowledge of facts cannot take advantage of the principle of estoppel. 44 The object of estoppel is to prevent fraud and secure justice between the parties by promotion of honesty and good faith. Therefore where one person makes a misrepresentation to the other about a fact he would not be shut out by the rule of estoppel if that other person knew the true state of facts. 45 If both sides have laboured under mistake, however bona fide or genuine it may be, the plea of estoppel is not available. Where, however, the mistake is within the knowledge of only one of the parties and the other on the basis representation act s and shifts his position to his prejudice, estoppel

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is certainly available. 46 No question of estoppel can ever arise where both the parties are labouring under a mistake of law. 47 When both parties were under a common error as per the erroneous advice of the lawyers in regard to the construction of a Will, and not by the representation of the beneficiary under the Will, the beneficiary was not estopped from claiming under the Will. 48 40 Hanapa v. Narsapa, (1898) 28 Bom 406; Mohori Bibee v. Dharmodas Ghose, (1903) 30 IA 114 : 5 Bom LR 421 : ILR 30 Cal 539; Ranchodlal v. Secretary of State, (1910) 13 Bom LR 92 : ILR 35 Bom 182; Jacks & Co. v. Joosab Mohomed, (1923) 48 Bom 38 : 25 Bom LR 1170. 41 Nawab Zakia Begam v. Lucknow Improvement Trust, (1937) 13 Luck 192; Rai Sunil Kumar v. Thakur Singh, AIR 1984 Pat 80, where the truth of the matter was known to both parties. 42 Muhammad Shafi v. Muhammad Said, (1929) 52 All 248 : AIR 1930 All 847; Sarat Chunder Dey v. Gopal Chunder Laha, (1892) 19 IA 203 : ILR 20 Cal 296. 43 Jumnadas v. Radhathai, (1969) 2 SCWR 271 : 1969 UJ 458; Both parties aware of legal impediments in adoption. Maddanappa v. Chandramma, AIR 1965 SC 1812; Parmanand v. Champalal, AIR 1956 All 225; Allah Rabbul v. Hasnain Ahmad, 1952 All 1011; Jamnadas v. Radhabu Arora, 1963 HP 348; Union of India v. J.J. Patel & Co., AIR 1960 Pat 30; Katihar Jute Mills Ltd. v. Calcutta Match Wroks (India) Ltd., AIR 1958 Pat 138; Ishar Singh v. Gajadhar Prasad, AIR 1957 Pat 174; Shiva Dutt v. Kedarnath, AIR 1972 HP 20; Commr. of HRE v. Batsa Palsa, AIR 1952 Ori 152. 44 Jai Prakash v. B.S.E. Board, AIR 1976 Pat 301. 45 R.S. Maddappa v. Chandramma, AIR 1965 SC 1812. 46 Naba Kishore v. Utlal University, AIR 1978 Ori. 65. 47 Sales Tax Officer v. Kanhaya Lal, AIR 1959 SC 135; Kochunni v. Kuttanunni, AIR 1948 PC 47; People's Insurance Co. v. Sardul Singh, AIR 1962 Punj 543; Shakerlal v. Narendra, AIR 1967 All 405; Ranchodlal v. Secretary of State, ILR 35 Bom 182; following Honappa v. Narsappa, ILR 23 Bom 406; Swaminadha Aiyar v. Swanadha Aiyar, AIR 1927 Mad 458; Srinivasan v. Sundaramamurthi, (1972) 1 Mad 377; Bansidhar v. Hazari Ram, 1933 Pat 210; Lachman Singh v. Collector, AIR 1933 All 641; Kanik v. Medni, AIR 1942 Pat 317; Firm Lorind Chand v. Punjab National Bank, AIR 1940 Lah 254; Mohori Bibee v. Dharmodas Ghosh, ILR 30 Cal 539; Bechelal v. Hem Singh, AIR 1953 All 485; Mutsadilal v. Union of India, AIR 1955 Hyd 61. 48 Vertannes v. Robinson, AIR 1927 PC 151.

15. AND TO ACT UPON SUCH BELIEF A person cannot invoke the doctrine of estoppel unless he proves that he has been induced to change his position to his detriment by relying upon any declaration, act or omission of the person against whom the doctrine is invoked. 49 The person setting up an estoppel against another must show that his position was altered by reason of the representation or conduct of the latter, otherwise even the general principle of estoppel cannot be invoked by him. 50 Estoppel can arise only if a party to a proceeding has altered his position on the faith of a representation or promise made by another. 51 Where on the basis of promise of grant of loan by certain financial institutions, an entrepreneur invested a huge amount from the sanctioned loan and the private resources in constructing an hotel complex but payment of the balance of the promised loan was stopped before the construction was completed, the principle of promissory estoppel was attracted as the entrepreneur had altered his position to his disadvantage. 52 Where on the basis of assurances and promises given by the State Govt. under its scheme, the entrepreneur set the cement factory and took other necessary steps, the Govt. cannot go back on their assurances and promises. 53 Where the Govt. under a scheme promised to grant subsidy to the industrial units in industrially backward areas on investment in goodscarriage and the petitioner in pursuance of that scheme purchased goods-carriage for transport of its goods when the said scheme was in force, the Govt. was estopped subsequently to withdraw the subsidy with retrospective effect. 54 Where the Municipal Board communicated its offer for the allotment of a plot to the petitioner who deposited a large sum of money with the Board and spent money for obtaining water and electrical connections and construction was put up on the said plot as per plan sanctioned by the Board, the Board could not be allowed to resile from its promise and it was directed to execute a registered patta (lease) in favour of the petitioner. 55

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A person who has not suffered detriment by acting upon the representation of the other parties cannot invoke the doctrine of estoppel. 56 Where there is no evidence of any detriment to the appellants as a consequence of the silence of the respondents or altering of their position in any way and there was no conduct amounting to representation intended to induce a cause of conduct on the part of the appellants, there is no question of estoppel. 57 Credit given in a pass-book binds the banker, if on the faith of such credit the customer has altered his position, as by drawing on the credit, etc., for by entering the sums to the customer's credit, they lead him to suppose that they have received them on his account. When, however, there has been no such alteration, the banker is allowed to show that the entries were made by mistake; for the pass-book is only prima facie evidence against him. 58 In 1906 the Government of Bombay compulsorily acquired certain land belonging to the defendant, and as a result of proceedings under the Land Acquisition Act paid to the defendant in 1912 the amount of compensation awarded by the High Court. In 1924, Government, discovering that the land was of their ownership, sued to recover the money from the defendant, as money paid to him under a mistake. It was held that they were estopped in view of the position taken up by them in the land acquisition proceedings and the consequent alteration in the position of the defendant. 59 49 Kazi Syed Karimuddin v. Meherunisa Begum, ILR (1947) Nag 341 : AIR 1948 Nag 19; Maddanappa v. Chandramma, AIR 1965 SC 1812; Mahindra & Mahindra v. Union of India, AIR 1979 SC 798 : (1979) 2 SCR 1038; Hem Nolini v. Isolyne Sarojbashini, AIR 1962 SC 1471 : 1962 Supp (3) SCR 294. 50 Maddanappa v. Chandramma, AIR 1965 SC 1812. 51 Mahindra & Mahindra Ltd. v. Union of India, AIR 1979 SC 798. 52 Kranti Hotels (Pvt) Ltd. v. State of J.&K., AIR 1997 J&K 91. See also Nath Brothers Exim International Ltd. v. Union of India, AIR 1995 Del 280 (paras 14, 17 and 18); Sheelawanti v. D.D.A. (FB), AIR 1995 Del 212 (paras 40 and 41). 53 Vinay Cements Ltd. v. State of Assam, AIR 1997 Gau 34. Following cases were referred : M.P. Sugar Mills v. State of U.P., AIR 1979 SC 621; Union of India v. Godfrey Philips (India) Ltd., AIR 1986 SC 506; Bakul Oil Industries v. State of Gujarat, (1987) 1 SCC 31 : AIR 1987 142 and Pine Chemicals Ltd. v. Assessing Authority, (1992) 2 SCC 683 : 1992 AIR SCW 702. 54 Arya Durga Industries v. G.M. Dist. Industries Centre, Kasargod, AIR 1998 Ker 311 (para 9), following Garments International Pvt. Ltd. v. Union of India, AIR 1991 Kant 52 and Old Village Industries Ltd. v. Union of India, AIR 1993 Del 321. 55 Kalu Chand v. State, AIR 1998 Raj 33, at p. 38. 56 George A. Leslie v. State, AIR 1970 Ker 21(FB) ; Devassy v. Sankarnarayan, AIR 1952 TC 191. See also Chaitnya Charan Das v. State of West Bengal, AIR 1995 Cal 336 (para 127). 57 Imperial Bank of Canada v. Mary Victoria, AIR 1936 PC 193. 58 Mowji v. National Bank of India, (1900) 2 Bom LR 1041 : ILR 25 Bom 499. 59 Secretary of State v. Tatyasaheb Holkar, (1931) Bom LR 791 : ILR 56 Bom 501; Govind Vaman v. Sukharam Ramchandra, (1878) 3 Bom 42.

16. REPRESENTATION MUST BE CLEAR AND UNAMBIGUOUS The representation which is the basis for the rule must be clear and unambiguous and not indefinite, upon which the party relying on it, is said to have, in good faith and in belief of it, act ed. 60 To create an estoppel against a party his declaration, act or omission must be of an unequivocal and unambiguous character 61 . An estoppel to have any judicial value, must be clear and non-ambiguous; it must also be free, voluntary and without any artifice. 62 Where there is no representation, principle of estoppel would not apply. 60 B. Coleman & Co. v. P.P. Das Gupta, AIR 1970 SC 426.

63

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61 Gajanan v. Nilo, (1904) 6 Bom LR 864; Gaura Dei Musammat v. Raja Mohammad Yasin Ali Khan, (1934) 10 Luck 361. 62 Mowji v. National Bank of India, (1900) 2 Bom LR 1041 : ILR 25 Bom 499; Rani Mewa Kuwari v. Rani Hulas Kuwari, (1874) 11A 157. 63 Raghu Forwarding Agency v. Union of India, AIR 2000 Gau 27 (para 10).

17. ESTOPPEL BY SILENCE OR ACQUIESCENCE Whenever there is a duty owing by one person towards another to speak or act which he has failed to perform and the other party has been led by such silence to change his position, such silence would operate as estoppel against the former. But where there is no duty to speak, no estoppel can arise. 64 When silence is of such a character and under such circumstances that it would be fraud upon the other party, for the party which has kept silence to deny what his silence has induced, it will operate as an estoppel. 65 A man is bound to speak out in certain cases, and his very silence becomes an expression as if he has openly consented to what is said or done and had become a party to the transaction. The ostensible owner sold certain land and his son, the real owner, remained silent. The acquiescence resulted in an estoppel. 66 A mortgagee who caused the mortgaged property to be sold in execution of a decree other than decree obtained upon his mortgage, without notifying to intending purchasers the existence of his mortgage line, was held to be estopped for ever from setting up that lien against the title of a bona fide purchaser 67 and so is estopped the party claiming possession on a land over which he, despite his knowledge, allowed the construction of a factory by the opposite party without making any objection. 68 A positive or active declaration as also an act or omission can constitute the basis for a plea of estoppel. An estoppel may arise from silence as well as words. However, to constitute an 'estoppel by silence' or 'acquiescence' it must appear that the party to be estopped must be bound in equity and good conscience to speak and that party claiming estoppel relied upon such silence or acquiescence and was misled thereby to change his position to his prejudice. Where a company allowed the other company, a sister concern, to manufacture the same products under the same registered trade mark for a long period, the doctrine of acquiescence and honest and concurrent user was attracted. 69 The students acted upon to their detriment when they continued their studies in the colleges in the belief that their admissions had been approved by the University and the University is estopped by keeping silence when it did not reject their admission at an early stage. 70 On the facts, the director of the company who was a party to the resolution allotting the shares in order to comply with the requirements of Sections 277(1) of the Companies Act , dealt with the shares on the footing that allottees were the holders of the shares with a clear knowledge of the circumstances on which he might have founded his present objection. He cannot be heard to say, that he was interested in the allotment and could not vote. He would be estopped from contending the allotment is invalid. 71 Appellant questioned validity of certain rules. Appellant acquiesced to the rules by applying for the post of Village Accountant and took chance on being elected. Constitutionality of rules cannot be questioned by him. 72 A party who acquiesces to arbitration proceedings by participating in it for a long time, cannot be permitted to contend that the matter is legally incapable of being referred to arbitration. 73 Where the landlord has admitted the sub-tenancy for four years with his knowledge and the rent has been paid by the sub-tenant in the presence of the landlord and on several occasions passed on to him by the tenant, a presumption of acquiescence will be strengthened by the fact that the landlord offered no explanation why he had waited for four years before filing the suit for ejectment on the ground of illegal sub-letting. 74 The petitioner participated in the election of the managing committee of a school. The managing committee, after it was constituted, selected another as Headmaster. The petitioner is estopped from challenging the appointment on the ground that the committee was not properly constituted as he had acquiesced in the election of the committee. 75 Where an employee slept over the question of seniority for more than 12 years and then woke up to challenge the seniority list seeking a relief which would upset the seniority of a number of persons who had been shown as seniors in the seniority list, it was held that the suit was barred by acquiescence and estoppel. 76 The candidate, participating in the selection without objection, is estopped from challenging the constitution of the Selection Committee and the procedure adopted by

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it. 77 Participation by the landholders in the proceedings of land acquisition at successive stages would bring in estoppel against them to challenge it subsequently on the ground available to them earlier but had been waived by them. 78 Absence of a specific plea in wife's reply to the notice of second husband to the effect that she was a minor at the time of divorce from her first husband, she is not estopped from raising that plea. 79 Mere inaction against an incorrect settlement entry is not such an act or omission, as will, without more, be sufficient in law to induce or mislead another person to act upon the same and so to act to his prejudice. 80 When no objection to the constitution of the R.T.A., on the ground of bias of one of its members was taken by the petitioner when the R.T.A. considered his renewal application, or when it decided the matter, it was held, that he was not estopped from raising this objection in an application under Arts. 226 and 227 of the Constitution. 81 Where seats were reserved for members of the scheduled caste and there was questioning of election on the ground that the elected candidate was not a member of a scheduled caste as he had ceased to be a Hindu and had become a Buddhist. Where there was failure to object at time of scrutiny of nomination papers, there can be no estoppel to raise an objection in election petition. But such failure would considerably weaken the objection. 82 An excess of statutory power cannot be validated by acquiescence on or by the operation of an estoppel. 83 Illegal renewal of permit and acquiescing in its renewal over a long period of 29 years would not disentitle the authorities to object to its renewal subsequently. 84 The bank was bound to obey the order of the High Court to keep the letter or credit alive if not challenged but such obedience does not amount to acquiescence and the bank was not estopped from contending that the document was discrepant. 85 The Development Authority does not acquiesce in illegal/unauthorised possession and is entitled to demolish the structure as soon as the interim injunction is vacated or modified. 86 Where the defendant gave evidence that when he came to know the user of his trademark by some other manufacturer, he could not ascertain his name, he did not acquiesce in the user of his trademark by the plaintiff. 87 Where a common judgment was passed in two consolidated cross-suits between the same parties in respect of the same property seeking similar reliefs after raising common issues and having led common evidence, and a single appeal was filed against one of the decrees while two decrees were passed in pursuance of said common judgment, it was held that the such a single appeal was not maintainable due to the applicability of principle of estoppel and/or acquiescence as the decree against which no appeal was filed had become final. 88 Where minor delay of deposit of rent was committed by tenant on two occasions and money deposited by the tenant was withdrawn by the landlord, the landlord could not to be permitted to raise the plea to strike the defence of the tenant on account of non-payment of rent within time, at a belated stage as the principles of acquiescence and waiver would apply. 89 The grounds not taken and raised in an appeal before appellate Court, cannot be allowed to be raised in the special appeal. 90 Where the dispute over the properties among family members was resolved by division of properties effected by an arbitrator and the arbitrator allotted schedule properties including Punja lands to the family members through an award which was made rule of the Court and the family members took possession of their respective schedule properties, having not questioned the award of the arbitrator the family member was estopped from taking the plea that Punja lands were not subject matter of the arbitration and he was entitled for the same. 91 The plaintiff bank, being a mortgagee under the letter of hypothecation, brought a suit for recovery of loan for the vehicle which was damaged in an accident. The insurance company had rejected its claim solely on the ground of non-payment of road tax and not on the ground that it was not a party to the insurance contract. The plaintiff could not avoid the insurance company to implead it in the suit on the ground that there was no privity of contract with it. 92 It is impermissible for the plaintiff to seek closure or removal of the window which is in existence for several decades and to which the plaintiff's predecessors had acquiesced. 93 Where the sarpanch against whom no confidence motion was moved, himself participated in the meeting conducted on the basis of requisition to consider the same, he was estopped from challenging the proceedings of the meeting on the ground of illegal requisition and notice, after having been voted out of office. 94 The Supreme Court, in an earlier writ petition filed by some employees, had held them entitled to continuation in service till 60 years of age. Some employees retired at the age of 58 years, accepted the same and did not challenge the same in time. In their writ petition filed after a lapse of two years, the Supreme Court held that they were guilty of waiver and acquiescence disentitling to relief. 95

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Where there was an omission to raise the plea of non-joinder of parties and it was not made subjectmatter of an issue nor was it raised in grounds of appeal, it would operate as waiver. 96 When on one party making a certain other claim, the dispute before the Arbitrator was unilaterally enlarged in spite of the objection by the opposite party who was left with no option but to participate in the proceedings, that did not amount to acquiescence. 97 Where the plaintiff objected to the unauthorised constructions being raised by the defendant on the suit land in the very beginning when its foundation for was being dug, it could not be said that the plaintiff had acquiesced to the constructions in question. 98 The procedural law like estoppel, waiver and acquiescence are equally applicable to the industrial proceedings. A person in certain situation may even be held to be bound by the doctrine of acceptance sub-silentio. Where the employee did not raise any industrial dispute questioning the termination of her services within a reasonable time. She even accepted an alternative employment and was continuing therein. Her conduct in approaching the Labour Court after move than seven years was considered to be a relevant factor in refusing to grant her any relief. 1 The doctrine of estoppel by acquiescence was not restricted to cases where the representor was aware both of what his strict rights were and the representee was acting on the belief that those rights would not be enforced against him. Instead the Court was required to ascertain whether in the particular circumstances, it would be unconscionable for a party to be permitted to deny that which, knowingly or unknowingly, he had allowed or encouraged another to assume to his detriment. Accordingly, the principle would apply, if at the time expectation was encouraged, both parties were act ing under a mistake of law as to their rights. 2 64 Jones Brothers (Holloway) Ltd. v. Woodhouse, (1923) 2 KB 117; Delhi University v. Ashok Kumar, AIR 1968 Del 131; Union of India v. Wattkins Mayor & Co., AIR 1966 SC 275; Kalloo Gaji v. Rishabh Kumar, AIR 1951 Nag 347; P.J. Joseph v. Assist. Excise Commissioner, AIR 1953 TC 146; Central Banking Corp. v. Barnard, (1972) 1 Rer 576; Parbati Devi v. Kasmirilal, AIR 1959 Cal 69; National Insurance Co. Ltd. v. Mastan, AIR 2006 SC 577, 582 (para 24). 65 Jokhumull v. Saroda Prosad Dey, (1908) 7 CLJ 604; Dhanpat Rai v. Guranditta Mal, (1921) 2 Lah 258. 66 Syed Abdul Khader v. Rami Reddy, AIR 1979 SC 553; Sailala v. Ngurtaiveli, AIR 1980 Gau 70. See also Sushima Kishandev Kaushal v. The Council for Tibetan Education, AIR 2006 HP 122; State of W.B. v. Sarkar and Sarkar, AIR 2006 (NOC) 1087(Cal) . 67 Muhammad Hamid-ud-din v. Shib Sahai, (1899) 21 All 309; Agarchand Gumanchand v. Rakhma Hanmant, (1888) 12 Bom 678; R.M. A.R.L. Chettiar Firm v. Maung Po Kyaw, (1935) 13 Ran 346. 68 New Bharat Chemical Industry v. Om Parkash, 1998 AIHC 614 (para 48) (P&H). See also A.V.N. Prasad v. Sitabai Raj Purohit, 2007 AIHC 476, 477-78 (para 10) (Kant); Anant Tukaram Nalawade v. Sou. Latika Anant Nalawade, 2008 CrLJ 1291(NOC) (Bom) : 2008 (5) AIR Bom R 554. 69 Power Control and Appliances Co. v. Sumeet Machines Pvt. Ltd., AIR 1993 Mad 120. 70 Delhi University v. Ashok Kumar, AIR 1968 Del 131. 71 Narayandas Shereeram Somani v. Sangli Bank Ltd., (1965) 2 SCJ 379 at 380 : (1965) 3 SCR 777. See also Ghaziabad Development Authority v. Sanchar Vihar Sahkari Avas Samiti Ltd., AIR 1996 SC 2021 (para 12). 72 I.L. Honnegouda v. State of Karnataka, AIR 1978 SC 28. 73 Prasun Roy v. Calcutta Metropolitan Development Authority, AIR 1988 SC 205; reversing (1987) 1 Ca LJ 207; Prince & Co. v. G.G. in Council, AIR 1955 Punj 240. See also Rukmini Amma v. Kallyani Sulochana, AIR 1993 SC 1616 (para 22); Ferro Alloys Corporation Ltd. v. A.P.S.E., Board, AIR 1993 AP 183 (para 20); Sarbati Devi v. Union of India, AIR 1995 Del 102 (para 3). 74 Mahabir Singh v. Anant Ram, AIR 1966 All 214. 75 Jadunandan v. Board of Secondary Education, AIR 1976 Pat 58; Raghuni Nayak v. District Magistrate, AIR 1959 Pat 7; Shanimahatma Swamy v. C. Gangaiah, AIR 1994 Kant 303 (para 16); Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd., AIR 1995 Cal 327 (para 48); Rekha Kumari v. State of Bihar, AIR 2007 (NOC) 350(Pat) ; Vijay Yadav v. Dealer Selection Board, AIR 2007 (NOC) 1060(Pat) : 2006 (2) Pat LJR 667. 76 State of Punjab v. Balkaran Singh, (2006) 12 SCC 709, 723 (para 22) : AIR 2007 SC 641.

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77 Lokender Kumar v. District Judge, Bijnor, 1996 AIHC 5493 (paras 5 and 6) (All). See also Nand Prakash Vohra v. State of H.P., AIR 2000 HP 65 (para 8). 78 Estate Officer, Huda v. Talari Gangamma, 1996 AIHC 3629 (para 15) (AP). See also State of Maharashtra v. Doburg Lager Breweries Pvt. Ltd., 1996 AIHC 4456 (paras 20 and 21) (Bom); Bhalia Art Service v. State of Haryana, 1996 AIHC 5500 (paras 11 and 13) (P&H). 79 Sodha v. Mansha Ram, AIR 1971 HP 27. 80 Hemanta Kumar Mitra v. Dulal Chakrawarthi, (1960) 1 Cal 625. 81 Sarju Prasad Singh v. S.B.R. Transport Authority, Patna, 1957 Pat 732. 82 Ganpat v. Presiding Officer, AIR 1975 SC 420. 83 K.R. Shenoy v. Udipi Municipality, AIR 1974 SC 2177 : (1974) 2 SCC 506 : (1974) 2 SCWR 275 : 1974 UJ 553(SC) . 84 K.S.R.T. Corporation, Bangalore v. K.S.T. Appellate Tribunal, AIR 1995 Kant 103 (para 2), reversing WP No. 19296 of 1983, Dt. 24-7-1989 (Kant). 85 Fargo Freight Ltd. v. Commodities Exchange Corporation, AIR 2004 SC 4109 (para 21). 86 John B. James v. Bangalore Development Authority, 2001 AIHC 837 (paras 79 and 79.1) (Kant). But see Oswal Woollen Mills Ltd. v. Punjab State Electricity Board, (2006) 13 SCC 719, 726 (para 25). 87 Uniply Industries Ltd., Chennai v. Unicorn Plywood Pvt. Ltd., AIR 2001 NOC 49(Mad) : 2001 CLC 411. 88 Darayas Bamanshah Medhora v. Nariman Bamansha Medhora, AIR 2002 Guj 166 : 2002 (2) Guj CD Guj 1509 : 2002 (1) Guj LR 474. See also Sandvik Asia Ltd. v. Commissioner of Income Tax, Pune, (2006) 2 SCC 508, 532 : AIR 2006 SC 1223. 89 Mohanlal v. Krishan Lal, 2003 AIHC 2155, 2162 (para 38) (Raj). 90 Pt. A.K. Misra v. Pt. Ram Chandra Sharma Trust, AIR 2003 All 96 : 2003 AIHC 1820 : 2003 All LJ 739 : 2003 Rev Dec 437. 91 Harish Hegde v. Rukmini Heggadathi, AIR 2004 NOC 402(Kant) : 2004 AIR Kant HCR 2493 : 2004 (4) Civ LJ 700 : 2004 (4) ICC 540 : 2004 (3) KCCR 1805. 92 Punjab National Bank v. Khazan Singh, AIR 2004 P&H 282, 289 (para 16) : 2004 (3) Punj LR 458 : 2004 (4) Civ LJ 922 : 2005 (2) Bank Cas 38 : 2004 (3) Rec Civ R 96. 93 Tippanna v. Ghanshyam, AIR 2004 Kant 446, 449 (para 15) : 2004 AIR Kant HCR 1701 : ILR 2003 Kant 4764 : 2003 (4) KCCR 3050. 94 Balram Singh Yadav v. State of Bihar, AIR 2005 Pat 172, 174 (para 6) : 2005 (3) Pat LJR 582. The Court followed a decision of the Division Bench passed in Raghuni Nayak Hansi Lal Sahani v. Dist. Magistrate, Darbhanga, 1958 BLJR 177 : AIR 1959 Pat 7. 95 Chairman, U.P. Jal Nigam v. Jaswant Singh, AIR 2007 SC 924, 925-26 (para 13) : (2006) 11 SCC 464. See also BMF Beltings Limited v. The Chairman, Tamil Nadu Electricity Board, AIR 2007 (NOC) 529(Mad) ; Kuzhithurai Peruntheree Vellalar Samudayam Sreerooba Narayanapillayar Devasthanam v. The Commissioner, H.R. and C.E. (Admn.) Department , AIR 2007 (NOC) (Mad). 96 Hansraj v. Pyar Chand, (1957) 7 Raj 87. 97 Union of India v. G.S. Atwal & Co. (Asansole), AIR 1996 SC 2965 (paras 9 and 11) reversing FMAT No. 1390 of 1991, Dt. 12-2-1992 (Cal). 98 Ram Narain v. Mirza Mohammed Hassain, AIR 2004 NOC 12(All) : 2003 ALJ 38 : 2003 AIHC 993 : 2003 (1) All CJ 78 : 2002 (2) All Rent Cas 509. 1 Haryana State Co-operative Land Development Bank v. Neelam, (2005) 5 SCC 91, 98 (paras 18-20) : AIR 2005 SC 1843. 2 Jai Narain Parasrampuria v. Pushpa Devi Saraf, (2006) 7 SCC 756, 778 (para 41) : (2006) 6 SLT 501.

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18. ACQUIESCENCE IN ILLEGAL OR IRREGULAR PROCEDURE Question of mode of proof is a question of procedure and is capable of being waived and therefore evidence taken in a previous judicial proceeding can be made admissible in a subsequent proceedings by consent of parties. Relevant evidence can be brought on the record for consideration of the court or the Tribunal without following the regular mode, if parties agree. 3 Even after a person was exonerated by the Criminal Court, he was not given his substantive post, but another post temporarily and he had no other option but to work under the new conditions imposed on him as he could not afford to lose his Government service, the mere fact that he had to work in the new post for about seven days would not, in any way, create any estoppel against him. 4 The court can adopt a procedure to settle the disputes "extra curus curaie" provided the parties either consent or acquiesce in the said procedure. When once they consented they cannot turn round and question the proceeding adopted by the Court. 5 Where a settlement is made outside conciliation proceeding between the employer and the majority union, acceptance of benefits following the settlement even by workmen who were not signatories to it, does not operate as estoppel against minority union raising same demands. Theory of implied agreement by acquiescence is not attracted in such a case. 6 A breach of covenant in regard to the user of the premises is a continuing breach. If a landlord takes no exception to the changed user but acquiesces in the breach, it would not constitute an irrevocable sanction to the changed user at a later period or for all time to come as there is no estoppel against the landlord. 7 Where in a case of allotment of petroleum outlet dealership, the applicant, instead of challenging the selection procedure before the interview, opted to take chance and appeared in the interview, he was estopped from challenging the legality of selection procedure adopted by the Dealer Selection Board on not being selected as a dealer. 8 A widow who was entitled to a share in joint family properties equal to that of son according to Mitakshara Law of the Benares School, without claiming her share, signed an unregistered partition deed, it was held that by doing so there was no acquiescence on the part of widow in favour of other coparceners. 9 Merely because the donor of the property to the trust, being a trustee member, let out the property in favour of third defendant or fair rent got fixed by Rent Controller, it would not be construed that suit schedule property was divested and he had acted as owner of the property. So question of acquisition and estoppel in respect of the said property did not arise. 10 Taking over of schools to facilitate political rallies is an arbitrary act of the State Government. It offends rule of law and is tantamount to requisitioning the property and the premises of educational institutions. It was observed that the state Government could not rely on a presumption of acquiescence on the part of the managements of the schools. 11 3 Kalyan People's Co-op. Bank Ltd. v. Dulhan Bibi, AIR 1966 SC 1072. 4 Sarasngthem v. State of Manipur, AIR 1956 Mani 34. 5 Rosily Mathew v. Joseph, AIR 1987 Ker 42. 6 Tata Chemicals v. Workmen, Tata Chemicals, AIR 1978 SC 828; Namburmadi Tea Co. v. Workmen, AIR 1969 Assam 39. 7 K.K. Sarma v. K. Venkata Raju, AIR 1972 AP 335. 8 Om Prakash Agarwal v. Bharat Petroleum Corporation, AIR 2005 Ori 64, 69 (para 15); See also Pramod Kumar Misra v. Indian Oil Corporation, 2003 AIHC 202, 205 (para 8) (All) relying on Chandra Prakash Tewari v. Shakuntala Shukla, (2002) 6 SCC 127 : AIR 2002 SC 2322; G. Rajesh v. Bharat Petroleum Corpn. Ltd., Mumbai, 2004 AIHC 2213, 2217 (para 25) (AP). 9 Siromani v. Hemkumar, AIR 1968 SC 1299. 10 Institute of Education v. S.A.S.E. & S.K.H.R.M. Endowment Trust, AIR 2003 Kant 226, 235 : 2003 AIR Kant HCR 80N : 2003 (181) Cur Tax Rep 264 : 2003 (126) Taxman 181. On this point the High Court has discussed decisions of various High Courts and that of Apex Court.

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11 Association of Independent Schools v. State of Bihar, AIR 2002 Pat 9, 16 : 2001 (3) BLJ 747 : 2001 (4) Pat LJR 592.

19. ACQUIESCENCE TO JURISDICTION Consent cannot give jurisdiction. 12 and mere filing of affidavits by the respondent would not amount to waiver of right of raising question of jurisdiction of the Court, especially when it was raised at the Court of first instance and at the earliest opportunity and much before actual hearing of the matter 13 ; but where the same material had already been published in the previous magazines and books and the respondent did not make any grievance against previous reportings and publications it was held that the silence of the respondent and not making a grievance against the prior publication prima facie amounts to her acquiescence in respect of publication of the material. 14 Failure to raise objection on jurisdiction at the initial stage will not operate as waiver and confer jurisdiction to a Court. 15 Where a Small Causes Court decided the suit, although the allegations in the plaint clearly excluded it from its jurisdiction, by Art. 35(ii) of Sch. II of Provisional Small Cause Court Act, it was held that the plaintiff was not estopped from challenging the court's jurisdiction, when the decision goes against him, as acquiescence cannot confer jurisdiction 16 but where the defendant pleaded that only the Small Causes Court had the jurisdiction to decide the suit for possession and not a Civil Court, the plaint was returned to the Small Causes Court, the defendant was estopped from raising the plea that the transferee Court had no jurisdiction. 17 Where the power to decide is delegated by the Commissioner to the Commercial Tax Officer and the assessee does not question, the same earlier, later he cannot challenge the power of the officer on the ground that the Commissioner could not validly delegate the power to the Commercial Tax Officer. 18 Where appellants submit to the jurisdiction of the High Court, they cannot take exception to such jurisdiction. 19 Party acquiescing in proceedings before umpire is precluded from challenging the award for lack of jurisdiction. 20 Where the applicant had not challenged the jurisdiction of the additional Magistrate, he cannot challenge it subsequently in his petition for certiorari . If he acquiesced in the jurisdiction in the hope of getting a favourable decision, the doctrine of estoppel should be applied against him. 21 Every Court or quasi-judicial authority has got inherent power to restore the case dismissed by it in default. In any view, the petitioners participated in the proceeding before the Board of Revenue after the restoration of the revision and took chance of success. Now, they could not be allowed to raise any objection as to the jurisdiction. 22 Where a person acquiesces and submits to the jurisdiction of a committee of or an enquiry officer without raising any objection he cannot be allowed to challenge the jurisdiction of the enquiry officer, subsequently in his writ petition. 23 A person who submits to the jurisdiction of an authority is estopped from challenging the jurisdiction thereof. 24 Having consented to have the controversy resolved by reference to arbitration through Court, the defendant deprived himself of the right to question the authority of the Court to refer the matter to arbitration. The defendant is estopped from challenging the jurisdiction of the Court as well as of the arbitrator to render the award in execution of the decree. 25 Where the jurisdiction plea was not raised either directly or by necessary implication before the arbitrator or before the Court below, it could not be raised for the first time in appeal as the appellant had acquiesced in the jurisdiction of the Arbitral Tribunal without demur and protest, having participated in the proceedings and having suffered an award. 26 An estoppel against a party cannot give the court jurisdiction where it has none. estoppel against a statute and that consent cannot confer jurisdiction. 28

27

There can be no

When premises do not fall vacant the Rent Controller has no jurisdiction to make allotment, under U.P. Temporary Rent Control and Eviction Act, 1947. Allotment can be challenged by a purchaser even though he also had applied for allotment and had submitted to the jurisdiction. Application made in ignorance of his right does not estop him. 29 Where the custodian, under the Administration of Evacuee Property Act (1950), made an order without jurisdiction, petitioner consented to the order and did not take objection to the jurisdiction before the custodian, he is not prevented from challenging his order in writ petition. 30

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Objection regarding territorial jurisdiction does not go to the root of jurisdiction. A judgement debtor is estopped from taking that objection in execution as to the validity of the decree. 31 Service of notice is a condition precedent for proceedings under Section 21 of U.P. Sales Tax Act. Where notice was served on an unconcerned person but the assessee participated in the proceedings; it was held that as service of notice is a condition precedent for proceeding under Section 21 of the U.P. Sales Tax Act, the assessee was not estopped from challenging validity of proceeding for non- service of notice. 32 Where an employee of Wakf Board applied for an appointment in pursuance of the Wakf Board Committee's notification is not estopped from challenging the Committee's decision. 33 12 Special Dy. Collector v. K. Kodanda Rama Charlu, AIR 1965 AP 25; Jiwaji Rao Sugar Co. v. J.M. Banerji, AIR 1962 MP 310; Jagadish Chandra v. Prakash Narain, AIR 1953 VP 51; Orient Paper Mills v. Union of India, AIR 1979 Cal 114; Nabir Bhat v. Mala Hamza, AIR 1976 J&K 25; State of Haryana v. District Judge, Chandigarh, AIR 2006 P&H 69, 71 (para 11); Seth Hiralal Patni v . Kali Nath , AIR 1962 SC 199; Sushil Kumar Mehta v . Gobind Ram Bohra , (1990) 1 SCC 193; State of Haryana v. District Judge, Chandigarh, AIR 2006 P&H 69, 71 (para 11); S. Sethuraman v. R. Venkataraman, (2007) 6 SCC 382, 392 (para 22) : AIR 2007 SC 2499. 13 IFB Automotive Seating and System Ltd. v. Union of India, AIR 2003 Cal 80, 88 : 2002 (4) Cal HN 501. 14 Khushwant Singh v. Maneka Gandhi, AIR 2002 Del 58, 77 (para 59). 15 The Correspondent and Chairman, Standing Committee, M.E.S. v. M. Syed Mohammed, AIR 2007 (NOC) 882(Ker) . 16 Gopi Krishna v. Anil Bose, AIR 1965 Cal 59. See also U.P. Rajkiya Nirman Nigam Ltd. v . Indure Pvt. Ltd. , (1996) 2 SCC 667 : 1996 AIR SCW 980 (paras 12 & 13); Dresser Rand S.A. v . Bindal Agro Chem. Ltd. , AIR 2006 SC 871, 886 (para 44). 17 Narayana Shambhogue v. Venkataramana Upadhya, 2000 AIHC 1300 (para 2) (Kant), relying on Gurumurthappa v. Chickmunisamappa, AIR 1953 Mys 62. 18 Aswini Kumar v. Commercial Tax Officer, AIR 1958 Cal 289. 19 Tikaram & Sons v. Commissioner of Sales Tax, U.P., AIR 1968 SC 1286. 20 N. Chellapan v. Kera State 'E' Board, AIR 1975 SC 230; New India Assurance Co. v. Dalmia I. & S. Ltd., 1965 Cal 42; N.C.M. Singh v. Jee Jeebhoy, AIR 1970 MP 63; Union of India v. K.P. Mandal, AIR 1958 Cal 415; Union of India v. B.M. Sen, AIR 1963 Cal 456. 21 Basant Singh, v. Janak Singh, AIR 1954 All 447; Padmanabhan v. Lakshmi Pillai, AIR 1963 Ker 51. 22 Chandrika Singh v. Addl. Member, Board of Revenue, Patna, AIR 1998 Pat 118 (para 16). 23 National High School, Madras v. Education Tribunal, AIR 1992 SC 717; Syed Hassan v. State of Mysore, AIR 1965 Mys 283; Bengal Coal Co. Ltd. v. Chairman, Central Govt. Industrial Tribunal, 1963 Pat 118; S. Thamgeo v. President D.S.S. & A. Board, AIR 1968 Mani 68; Mukund Ram v. Registrar Trade Union, AIR 1962 Pat 338. 24 Nadia District Bus Owners Association v. District Magistrate, AIR 1969 Cal 458. See also State of U.P. v. The 14th Additional District Judge, Agra, 2001 AIHC 3396 (para 4) (All). 25 Hira Lal Patni v. Kali Nath, AIR 1962 SC 199 (200) (para 4). 26 K.S.R.T.C. v. M. Keshava Raju, AIR 2004 Kant 109, 114 (para 15) : 2003 AIR Kant HCR 3061 : 2004 (1) Arbi LR 507. See also Toddy Tappers Co-op. Society v. Govt. of A.P., 2003 AIHC 1870, 1873 (para 10) (AP); Chanda Enggs (India) Ltd. v. UCO Bank, AIR 2005 Cal 28, 38 (para 21); Eastern Coalfields Limited v. Dugal Kumar, (2008) 14 SCC 295, 302 (para 21). 27 Sayed Mohsin v. Sayed Ainul Hussain, (1946) 22 Luch, 283; S.N. Koya v. Union Territory of L.M. & A. Island, AIR 1967 Ker 259. 28 Uda v. Jagdish Narayan, (1963) Raj 652; Rukmini Debi v. Mihar Bala Sarkar, AIR 1977 Cal 161. 29 Lachhman Das v. Rent Control & Eviction Officer, AIR 1953 All 458. 30 Raghunandanlal v. State of Rajasthan, AIR 1952 Raj 184.

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31 Hiralal v. Kali Nath, AIR 1962 SC 199. 32 Laxmi Narain v. Sales Tax Commissioner, AIR 1980 All 198. 33 Dilawar Ali v. A.P. Muslim Wakf Board, AIR 1967 AP 291.

20. STANDING BY When A stand by while his right is being infringed by B, the rule of estoppel by acquiescence applies under the following conditions. 24)   B must be mistaken as to his legal rights; 23)   B must expend money or do some act on the faith of his mistaken belief; 13)   A must know his own rights; 10)   A must know of B's mistaken belief; and 5)   A must encourage B in his expenditure of money or other act directly or by abstaining from asserting his legal rights. 34 To found a plea of estoppel on the doctrine of standing by, it must be affirmatively established that the parties against whom that estoppel is sought to be pleaded were aware of what was being done and consciously stood by. 35 The limitation on the rule of standing by are that, first, the stranger building on the land must do so supposing it to be his own and secondly, the owner of the land, perceiving his mistake, abstains from setting him right and leaves him to persevere in his error. 36 In a suit for mandatory injunction directing demolition of construction put up by the defendant on suit land, it was held that the plaintiff could have known in time about the construction by the defendant on suit land, had he cared to find out. Principle of estoppel by acquiescence is applicable and the plaintiff was entitled only to a decree for compensation. 37 Where the tenant at will sold his rights together with house and tenure rights and the landlord perused the transfer deeds and recognised the transfer, and mutated the names of the transferees in his sherists , and when the transferee built a double storeyed pucca house on the land, the landlord did not object to the construction. The landlord is estopped from asserting any title to the land. 38 L ORD C RANWORTH observed: "If a stranger begins to build on my land supposing it to be his and I (the real owner) perceiving his mistake, abstain from setting him right, and leave him to persevere in his error, a court of equity will not allow me afterwards to assert my title to the land, on which he has expended money on the supposition that the land was his own. It considers that when I saw the mistake in which he had fallen, it was my duty to be active and to state his adverse title; and that it would dishonest in me to remain willfully passive on such an occasion in order afterwards to profit by the mistake which I might have prevented." 39 J ANKINS . J. commented: "The doctrine involved (In Ramden's case) is often treated as one of estoppel, but I doubt whether this is correct, though it may be convenient name to apply. It differs essentially from the doctrine embodied in Section 115, which is not a rule of equity, but is a rule of evidence.....I do not think that it is any objection to that enquiry that the interest the municipality was to have in the land was not originally moulded in a form recognised by the law; that does not prevent us from now imposing such terms as will prevent that which a court of equity would regard as a fraud." 40 Doctrine of 'standing by', estoppel by acquiescence, is best enunciated by C OLLENHAM LC., in Duke of Leeds v. Amherst 41 as follows : -"If a party having a right, stands by and sees another dealing with the property in a manner inconsistent with that right, and makes no objection while the act is in progress, he cannot afterwards complain. That is the proper sense of the word acquiescence."

Where there is no mistaken belief as to ownership of the land, still less was any mistaken belief, known to the other side, there is no basis for the application of the equitable doctrine of estoppel.

42

790

Where a person in possession of land, not in mistaken belief of his rights but in assertion of his right which he correctly believed to be his, builds structure on the land and the person who is entitled to possession knows of this, the latter is not estopped by acquiescence, from bringing a suit for possession. 43 Where the leasee holding a lease for a term of ten years with renewal clause, built house on the land leased without consent, the lessor is not estopped from taking Khas Possession of lease hold. 44 Where under an oral agreement to grant permanent lease, the defendant took possession and erected structures and the plaintiff encouraged him to do so, it was held that the defendant cannot rely on the doctrine of equitable estoppel by representation. 45 34 Sidde Gowda v. Nadakala Sidda, AIR 1952 Mys. 117, 118 (para 3). 35 Gurunadham v. Venkata Rao, AIR 1959 AP 523, 529-30 (para 46). 36 Kaloo Gaji v. Rishabkumar, ILR (1951) Nag 909 : AIR 1951 Nag 347. 37 Muthuswami Gounder v. A. Annamalai, AIR 1981 Mad 220. 38 Ambika Devi v. Sachita Nandan, AIR 1960 Pat 289; following Dhanu Pathak v. Sona Koeri, AIR 1936 Pat 417(S.B.) ; Chandrakanta Nath v. Amjad Ali, AIR 1921 Cal 451. 39 Ramsden v. Dyson , LR 1 App 129, 140 HL. 40 Municipal Corp. of Bombay v. Secretary of State, 29 Bom 580. See also Beni v. Kundal 21 All 496. 41 (1846) 78 RR 47 : 20 Phillips 117, followed in Dhaniya Bai v. Jiwan, AIR 2003 MP 71, 73 (para 12) : 2002 (2) MPHT 483 : 2002 (3) MPLJ 174. 42 Canadian Pacific Railway Co. v. King, AIR 1932 PC 108. 43 Sarjug Devi v. Dulhin Kishori, AIR 1960 Pat 474. 44 Tarak Chandra v. Jagdish Chandra, AIR 1954 Pat 41; Ramachndra Dattatraya v. Pushpabai Manohar Sheth, AIR 1990 Bom 182. 45 Ariff v. Jadunath, AIR 1931 PC 79; Subodh v. Bhagwandas, 50 Cal WN 851; See also Sudhir Kumar v. Direndra Nath, AIR 1957 Cal 625; (oral lease reserving yearly rent).

21. NEGLIGENCE AND ESTOPPEL In support of a plea of estoppel on the ground of negligence it must be shown that the party against whom the plea is raised owned a duty to the party who raises the plea, or towards the general public of which he is one and that the negligence on which it is based should not be directly or remotely connected with the misleading effect assigned to it but must be proximate or real cause of that result i.e., the negligence which can sustain a plea of estoppel must be in the transaction itself and it should be so connected with the result to which it led that that it is impossible to treat the two separately. 46 Estoppel depends on the existence of some duty; and that is peculiarly so in the case of an omission. In order to succeed on a plea of estoppel it must be shown that there was a neglect of some duty owing to the person led into a particular belief, or to the general public of whom that person is one, and not merely neglect of what would be prudent in respect of the party prejudiced, or even of some duty owing to third persons, with whom those seeking to set up estoppel are not privy. There is a breach of the duty if the party estopped has not used due precautions to aver the risk. 47 In order to create estoppel by negligence mere negligence on the part of the true owner is not enough. Negligence must be of so serious a character as to amount to a breach of duty by the owner to the party defrauded or to the general public of which the party defrauded is one. 48 Where low amounts were collected as electric consumption charges, it was held that there is no estoppel as it was done by mistake in computation and it does not relieve the customer from his obligation to pay the true amount. 49 A banker is not estopped from claiming refund of excess credit given to the customers account. 50 In a suit for recovery of embezzled amount from bank on ground of

791

plaintiff's forged signature and bank debited plaintiff's account on basis of cheques and advices, it was held that when a Bank was maintaining separate ledger for plaintiff's account and submitting regular statements of account coupled with confirmation slips which were returned duly signed by plaintiff, such confirmation amounted to acknowledgement and plaintiff would be estopped from challenging debits balance made due to his neglect. 51 A sold certain item of property (X) to B and later on executed a mortgage of his property which included that item (X) also. A then sold the mortgaged property to C. In a suit for redemption C raised plea of estoppel against B in allowing the item (X) to be included in the mortgage. C however, had admitted that he knew that B was in possession of the property but that he thought that B was in possession as a possessory mortgagee. He made no further enquiries and did not have a search made in office of the Sub-Registrar to ascertain if there was any other encumbrance regarding that item, or any other transaction evidenced by a registered document. It was held that C's omission in nor having made such enquiries must be held to be wilful, or as grossly negligent, and in that view he could not claim any right to redeem that item and was estopped by his omission and negligence. 52 In H ALSBURY 4th Edn., Vol. 16, Para: 1620: Page 1091, it observed: Before anyone can be estopped by a representation inferred from negligent conduct. The expression "estoppel by negligence" has been criticised as an inaccurate expression, in that estoppel arises from a representation by words or conduct: see Saunders 53 there must be a duty to use due care towards the party misled, or towards the general public of which he is a member (This does not mean that the onus is on the person misled to prove that the party he seeks to sue is estopped and owed a duty to him in the same way as is necessary in establishing the tort of negligence: see Saunders 54 A person who does not lock up his goods, which are consequently stolen, may be said to be negligent as regards himself, but inasmuch as he neglects no duty which the law casts upon him he is not in consequence estopped from denying the title of those who may have purchased those goods from the thief, unless it be in market overt. Persons who issue documents with a certain mercantile meaning attached to them, for example, delivery orders, owe a duty to merchants and others likely to deal with those documents to use due care in their issue; and a railway undertaker or warehouseman issuing duplicate orders for the same goods may be estopped from denying that they had two parcels, to the prejudice of someone who has advanced money on the faith of the duplicate. Accordingly, if in the course of business a man volunteers a statement upon which another businessman may probably act, it is his duty to take reasonable care that the statement is correct. If there is no duty cast upon the customer to scrutinise his bank passbook as soon as received and to inform the banker about any inaccuracies in the passbook it cannot result in estoppel. 55 Where forged cheques were paid by a Bank, the Bank is liable for wrong payment, plea of estoppel based on negligence of the customer is not available. 56 In a case specific instructions were issued by the customer to the bank guarantee in terms of the contract against mobilisation advance to be received from the beneficiaries; the bank negligently issued mobilisation advance- cum -performance guarantee. it was held that the beneficiary cannot invoke guarantee for recovery of loss or damage and the customer not being a party to the guarantee is not estopped from seeking court's protection. 57 46 New Marine Coal Co. v. Union of India, AIR 1964 SC 152; Ritz Private Ltd. v. A.P.S.E.B., ILR 1974 AP 1056; Purushottam Balvant Gole v. Secretary of State, AIR 1938 Bom 93; Canara Bank v. Canara Sales Corp., Mangalore, ILR 1973 Kant 1030; Parbati Debi v. Lachminarayan, AIR 1957 Cal 551; Standard Chartered Bank v. Andhra Bank Financial Services Ltd., (2006) 6 SCC 94, 125-26 (para 58) : AIR 2006 SC 3626. 47 Mercantile Bank of India Ltd. v. Central Bank of India, (1937) 40 Bom LR 713 : 65 IA 75 : ILR (1938) Mad 360 : AIR 1938 PC 52; Standard Chartered Bank v. Andhra Bank Financial Services Ltd., (2006) 6 SCC 94, 125-26 (paras 57 & 58) : AIR 2006 SC 3626. 48 Prabati Debi v. Lachminarayan, AIR 1957 Cal 551; relying on Jones Ltd. v. Waring & Gillow Ltd., 1926 AC 670; Farguharson and Co. v. C. King & Co., 1902 AC 325; Mercantile Bank of India Limited v. Central Bank of India Ltd., AIR 1938 PC 52. 49 Maritime Electric Co. v. General Diaries, 1937 AC 619; Corporation of Calcutta v. Sashi, 50 Cal WN 263. 50 Oakley Bowden & Co. v. Indian Bank, AIR 1964 Mad 202.

792

51 P. Roy Co. v. Punjab National Bank, (1980) 2 Del 1060. 52 Rangappa v. Marappa, AIR 1958 Mad 515; Paruathathammal v. Sivasankara, AIR 1952 Mad 265. 53 Executrix of the will of Rose Maud v. Anglia Building Society, (1971) AC 1004 at 1038 : (1970) 3 All ER 961 at 982, HL, per Lord P EARSON ; and see the case also sub nom. Gallie v. Lee, (1969) 2 Ch 17 at 48 : (1969) 1 All ER 1062 at 1081, CA, per S ALMON LJ; and also on the ground that the expression is only one aspect of estoppel by conduct: see Moorgate Mercantile Co. Ltd. v. Twitchings, (1976) 2 All ER 641 : (1976) 3 WLR 66 at 295, CA, per L ORD D ENNING M R . 54 Executrix of the will of Rose Maud v. Anglia Building Society, (1971) AC 1004 at 1038 : (1970) 3 All ER 961 at 982 HL, per Lord P EARSON ; overruling Carlisle and Cumberland Banking Co. v. Bragg, (1911) 1 KB 489, CA. 55 Tarini Charan Nandi v. Ajit Kumar Kundu, (1955) 2 Cal 365. 56 Canara Bank v. Canara Sales Corporation, AIR 1987 SC 1603; Babulal Agarwalla v. State Bank of Bikaner, AIR 1989 Cal 92. 57 G.S. Atwal & Co. Engineers Pvt. Ltd. v. Hindusthan Steel Works, AIR 1989 Cal 184.

22. ESTOPPEL AGAINST REPRESENTATIVES Estoppel applies not only in favour of the person induced to change his position but of a transferee from such person, and it binds not only the persons whose representations or act ions have created it, but all persons claiming under or through them by gratuitous title. 58 A legal representative of a party to the record is as much bound by every estoppel as it is binding on his predecessor. 59 Admission by predecessor of defendant in a previous suit is binding on defendant in the present suit. 60 58 Jagannath Prasad Singh v. Syed Abdullah, (1918) 20 Bom LR 851 : 45 IA 97 : ILR 45 Cal 909; See also Rani v. Malati Roy, AIR 1992 Cal 302; Jagjeevan Co-operative House Building Society Ltd. v. Union of India, 1998 AIHC 1047 (para 8) (Del). 59 Petha Perumal v. Chidambaram, AIR 1954 Mad 760. 60 Shanti Sarup v. Radhaswami Satsang Sabha, AIR 1960 All 248.

23. PARTNER Sections 19 of Partnership Act (1932) does not give implied authority to partner to refer dispute to arbitration. When such a dispute is referred and other partners who know about it do not take any objection to the proceedings before the arbitrator till the passing of the award, it must be taken that they have ratified the act of the partner and are estopped from challenging the award on the ground of want of authority in the referring partner. 61 Where the property mortgaged by a co-partner as security for advances made to him, (independent of partnership business), by his partner, is sold and the partner- creditor is not a consenting party to sale, receipt by the partner creditor of the amount due to him, from out of sale proceeds, does not estop him from relying upon the sale as an act of insolvency. 62 61 Dayanand v. Union of India, 1952 Punj 373. 62 Kuchelanarayanan v. S.P. Sheik & Co., AIR 1964 Mad 106.

24. BONA FIDE PURCHASER Where auction-purchaser purchased the suit property without any knowledge of insolvency of the vendor, and Official Receiver did also not implead the purchaser in insolvency proceedings, and Official Receiver's conduct was found not to be bona fide , the Official Receiver was estopped from

793

questioning the validity of sale of the suit property in favour of auction-purchaser who was held to be a bona fide purchaser under Section 51(3)of Provincial Insolvency Act (5 of 1920). 63 63 N. Janardhanam v. Thiruchirapalli Co-operative Building Society, AIR 2004 Mad 142, 147 (paras 25 & 26) : 2003 (9) All Ind Cas 190 : 2003 (2) Mad LJ 423.

25. TRUSTEE A person who act ed as a trustee of a public temple cannot later claim that as his private property. 64 The persons who are in possession of the property as trustees are estopped from denying the validity of the trust. 65 Certain persons claimed management of a temple on the ground of it being a denominational temple. However, the temple was found to be a private one and under the control of government. On applications being invited for appointment of non-hereditary trustees, not from the members of their community i.e. Vellala community, they volunteered for their appointment as such and were appointed. It was held that in view of their conduct, subsequently they were estopped from contending that the suit temple was a denominational one or that they had any inherent right to be in the management of the temple. 66 Where a trustee had taken proceedings stating that a particular statute applies, the religious institution is not estopped from contending that it falls outside the purview of the statute. 67 64 Venkata Ramana v. Rama Mandiram, AIR 1966 AP 197; See also Shri Ganesh v. Keshavrao, ILR 15 Bom 625. 65 Pichai Pillai v. Lingam Iyer, AIR 1928 Mad 268. 66 Nellor Marthandam Vellalar v. Commissioner, HR&CE, AIR 2003 SC 4225 (para 9) : (2003) 10 SCC 712. 67 State of Madras v. K. Melamatham, AIR 1965 SC 1570.

26. COMPANY Where a director of a Banking Company dealt with the shares on the footing that the allottees were holders of the shares with a clear knowledge of the circumstance that he was interested in the particular transaction of the board meeting of the company, in a suit by the company against the allottees he was estopped from contending that the allotment was invalid; he could not be allowed to say that he was interested in the allotment and could not vote. 68 The share holders of a company requisitioned the Managing Director to convene a meeting for electing a new Managing Director. The meeting was not held at the registered office at the time fixed because the premises had been locked. Share-holders held the meeting at another place and passed a resolution removing the Managing Director and appointed another person as Managing Director. It was held that by reason of his conduct in not making the registered office available for the meeting, the Managing Director was precluded from complaining of the invalidity of the meeting actually held at a different place or the resolution passed there. 69 Directors of a company who participated at the Annual General Meeting and received with full knowledge of all facts, the dividents declared at that meeting, are estopped from challenging the validity of the said meeting and the proceeding thereof. 70 The plaintiff company allowed its Manager to use its seal for the purpose of endorsement of various cheques drawn in favour of the plaintiff company. The Manager encashed certain cheques but did not credit the amount in company's account. Plaintiff sued the Bank for damages on the ground that the Bank was guilty of negligence in giving away money to an unauthorised person. It was held, the plaintiff company by its conduct represented the Bank that the person encashing the cheque had authority to an act behalf of the plaintiff as its Manager and therefore, plaintiff company was estopped from challenging the authority of that person who used the company's seal as its manager. 71 Where the purchaser of the assets of a wound up company submitted before the High Court that it would abide by the terms of settlement as imposed by the High Court which modified the terms of settlement, in appeal the Supreme Court can again modify the terms of settlement. 72

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68 Narayandas v. Sangli Bank Ltd., AIR 1966 SC 170. 69 Ratna Veluswami v. Manickavelu, AIR 1951 Mad 542. 70 Surajmull Nagarmull v. Shew Bhagwan Jalan, (1973) 1 Cal 207. 71 Bhutoria Trading Co. Ltd. v. Allahabad Bank, AIR 1977 Cal 363. 72 Industrial Finance Corporation v. Official Liquidator, AIR 1993 SC 1524 (para 12).

27. FIRM Where the plaintiff failed to prove that the alleged dishonoured cheque was issued by the concerned partner or that it was issued in the course of business, the firm was not estopped from denying liability. 73

73 C.T. Joseph v. I.V. Philip, AIR 2001 Ker 300 (para 15).

28. MINOR It was held by the Privy Council that the infant will not be estopped from pleading his minority not withstanding his fraudulent representation. 74 But in an other case it was held that the infant will be estopped from taking advantage of his minority where there was misrepresentation and legal fraud played by the infant. 75 The Privy Council held that any deed executed by a minor representing as a major is a nullity and the plea of estoppel will not operate. 76 Where the tenancy of a house occupied by a deceased tenant devolved jointly on his heirs two of whom were minor sons, it was held that the tenancy could not be terminated by the heirs accepting a new tenancy, as the question of acquiescence, waiver or estoppel could not arise so far as the minors are concerned. 77 In all the above cases the minor figured as defendant in the proceedings. In cases where the minor figures as plaintiff, the doctrine of estoppel would not apply. A minor can be a mortgagee or promisee or a vendee whereunder he advances money for the transactions entered into, in which cases it can be enforced by him or by any person on his behalf. 78 A decree was passed against a minor who was not properly represented. The minor filed an appeal through his natural brother as guardian. Minor's guardian entered into a compromise on behalf of the minor and the appellate court modified the decree of the trial court in view of compromise. In the circumstances, it was held that the minor cannot question the validity of the appellate decree. Where a representation is made by a properly constituted guardian of the minor, the minor is bound by the representation. 79 An agreement made by the Karta of the Joint Hindu Family on behalf of the family is binding on the minor members also and they are estopped from challenging the same. 80 Where the defendant had recovered the properties in the suit from third parties after litigation prosecuted by him as the guardian of the plaintiff, he could not, be heard to plead that the decree in favour of his ward was illegal, and he was entitled to retain the property as reversioner. 81 In a suit by a minor plaintiff through next friend for pre-emption, it was alleged that the plaintiff's mother, prior to sale in favour of the defendant, had represented that she had no intention to pre-empt sale. It was held that the plaintiff was entitled to pre-empt and that the previous consent of the plaintiff's mother would not operate as estoppel in view of the non-compliance with provisions of Section 173(3)Berar Land Revenue Code . 82 74 Mohori Bibi v. Dharmodas Ghose , ILR 30 Cal 539 (PC). 75 Saral Chand Mitter v. Mohun Bibi , ILR 25 Cal 371. See also Fazul Bhoy v. Credit Bank of India, 39 Bom 331; (Minor was allotted shares on his application and received dividends).

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76 Sadiq Alikhan v. Jai Kishori, AIR 1928 PC 152. See also Ranga Rao v. Vardichand & Co., AIR 1934 Mad 560; Kundan v. Magan, AIR 1932 All 710; Gadigeppa v. Balangowda, 1921 Bom 561(FB) ; Ajudhia v. Chandan, AIR 1937 All 610(FB) . 77 Sunila Sundari Dasi v. Sailendra Nath Dey, (1966) 1 Cal 252. 78 Raghava Chariar v. Srinivasa, 40 Mad 308(FB) (case of Sale) Collector of Meerut v. Haridan, AIR 1945 All 156; Muniya v. Perumal, ILR 37 Mad 390; Naraindas v. Dhania, ILR 38 All 154. 79 Bagher Singh v. Teja Singh, (1976) 2 Punj 675; Somanath Singh v. Ambika Prasad Dube, AIR 1950 All 121. 80 Gulab Chand v. Chhatar Singh, ILR 1961 MP 867. 81 Faitu Bhila v. Bhawaniram, AIR 1961 MP 27. 82 Bhiku Yogajee v. Sukh Deo Narayan, AIR 1955 Nag 67.

29. JOINT FAMILY Wife's succession is not affected by estoppel arising out of husband's action.

83

Neither a reversioner nor person claiming through him can be estopped from challenging surrender by a widow, if it was void or voidable in law. 84 Where the father takes benefit under a surrender by a widow and the son does not receive any benefit under it, the son is not estopped from challenging the surrender by the widow. 85 Where a bank sued the family as a whole for loan the taken by the Karta of the family; but two members of the family took the stand that they were not responsible for the overdraft with the bank, they could not be estopped from claiming their shares in other joint family properties in a subsequent suit. 86 83 Gokul Ram v. Bhagvandas, ILR 1962 MP 607. 84 G.N. Sarwade v. State of Mysore, 1967 Pat 47. 85 Sarwade v. State of Mysore, 1965 Pat 47. 86 Prabati Kuer v. Sarangdhar, AIR 1960 SC 403 (406) (para 8).

796

797

Ratanlal & Dhirajlal: Law of Evidence, Updated 23rd Edition/THE INDIAN EVIDENCE ACT (ACT 1 OF 1872)/PART III PRODUCTION AND EFFECT OF EVIDENCE/CHAPTER VIII ESTOPPEL/S. 115.

30. MISCELLANEOUS A person is not estopped from asserting his own title to aproperty which he did not claim in a previous suit wherein he, as a witness, had supported the defence. 87 Where a union representing workers raised an industrial dispute challenging retrenchment of workers and the individual workmen accepted retrenchment benefits subsequently, the union is not estopped from challenging the retrenchment. 88 Where a sale certificate is issued u/ O 21, R. 94, C.P.C., stating that properties were sold subject to mortgage, purchaser is not precluded from contesting the binding nature of mortgage. 89 87 Langa Manjhi v. Jaba Majhian, AIR 1971 Pat 185. 88 Hind Strip Mining Corp. v. Raj Kishore, AIR 1967 Pat 12. 89 Chekku v. Puliasseri Parvathi, AIR 1956 Mad 634.

31. ESTOPPEL AGAINST PERSON CLAIMING IN DIFFERENT CAPACITY Acting in a representative character does not create estoppel on personal claims. 90 Where the suit is one on behalf of the community and the plaintiff does not claim any title or set up any personal right in him, no estoppel can be pleaded against him in his representative capacity by reason of any individual act, he might have committed. 91 A person transferred his import licence. The transferee imported the goods. The original licensee had committed irregularities in obtaining the licence, it was held that the transferee could not be made to suffer on that basis. 92 90 Ram Harakh v. Hanwant Ram, AIR 1930 PC 249 (1). 91 1959 Ker LJ 932. 92 Chemi Colour Agency v. Chief Controller, Imports & Exports, AIR 1985 Cal 358. See also Chhaganlal Keshavlal Mehta v. Patel Narandas Haribhai, AIR 1982 SC 121. Where the claim of estoppel was not allowed to the assignee of the person to whom the representation was made.

32. ELECTION--APPROBATE AND REPROBATE L ORD A TKIN observed: "Where a person has the choice of two rights either of which he is at liberty to adopt, but not both, and if he adopts one, he cannot afterwards assert the other". 93 L ORD B LACKBURN quoting from C OKE observed that when a man has an option to choose one or the other of two inconsistent things, when he has made his election, it cannot be retracted. 1 In H ALSBURY ' S Laws of England 4th Edn., Vol. 16, para 1507, page. 1012, it is observed: "On the principle that a person may not approbate and reprobate 2 , a species of estoppel has arisen which seems to be intermediate between estoppel by record and estoppel in pais . The principle that a person may not approbate and reprobate expresses two propositions, that the person in question, having a choice between two courses of conduct, is to be treated as having made an election from which he cannot resile, and 3 , that he will not be regarded, in general at any rate, as having so elected unless he has taken a benefit under or arising out of the course of conduct, which, he has pursued and with which his subsequent conduct is inconsistent.

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The principle of approbate and reprobate is based on the maxim " allegans contraria non est audiendus " meaning thereby that a person who says things contradictory to each other, shall not be heard. 4 The principle of estoppel by election applies to both civil and criminal proceedings.

5

The maxim that a person cannot 'approbate and reprobate' is only one application of the doctrine of election, and its operation must be confined to reliefs claimed in respect of the same transaction and to the persons who are parties thereto. The principle of election does not forbid a party from claiming the same relief against different persons in different suits in respect of the same property though the grounds of relief are different and inconsistent 6 and where there is absolutely no election in between the two alternative and mutually exclusive remedies or the two alternative courses of action, the principle of estoppel by election has no application, as is the situation in the instant case. 7 The Supreme Court observed: "(1) The doctrine of approbation and reprobation, which has a Scottish origin and is akin to the law of election and estoppel, applies to those cases where a person has elected to take benefit otherwise than on merits of the claim in the litigation under an order to which benefit he could not have been entitled except for the order. (2) That the person receiving a benefit under the order must have a choice between two rights and that after the exercise of the choice, restitution was impossible or inequitable." 8 The doctrine of 'approbate and reprobate' is only a species of estoppel. It applies only to the conduct of the parties. As in the case of estoppel it cannot operate against the provisions of a statute. 9 The principle forbidding simultaneous approbation and reprobation is an equitable principle. So are the principles relating to estoppel. It is not true view of law that if one party does something under the dictate of an order or a decree, as is the instant case, and another party receives something thereby, then in every case the order or decree becomes unchallengeable by the recipient party. The nature of the receipt, in the instant case a nominal amount, has to be examined in the facts and circumstances of each case and then only the rules of good conscience must be applied. 10 In a case of acquisition of land with a view to prospect for coal, the appellant Central Government did not question the payment of additional compensation and interest before the Tribunal when the matter was heard on reference. Subsequently, the appellant could not be allowed to turn back and say that the same was not payable. 11 An owner of property is not estopped from claiming just compensation under Sections 8 of Requisitioning and Acquisition of Immovable Property Act (1952), merely because they had given low figure of annual rent for purposes of taxation. 12 Where the petitioner is given option by the Tribunal either to amend the petition, or to supply particulars or strike off the particular para as being vague, and the petitioner chooses to amend, he loses his right to adopt the alternative. 13 If the parties have taken up a particular position before the Court at one stage of the litigation it is not open to them to approbate and reprobate and to resile from that position. 14 In Hemanta Kumari Devi v. Parasanna Kumar 15 Justice M UKHERJEE observed: "It is well settled that a party litigant cannot be permitted to assume inconsistent positions in court, to play fast and loose, to blow hot and cold, to approbate and reprobate, to the detriment of his opponent; and that this wholesome doctrine applies not only to the successive stages of the same suit, but also to another suit other than the one in which the position was taken up, provided the second suit grows out of the judgment in the first." 16 A party who successfully took a plea and got a judgement in his favour cannot be allowed to take an inconsistent position in any act ion, arising out of the said judgement. This principle has been applied even to cases where a question of jurisdiction is involved. 17 Where in an earlier proceeding the Tahsildar had passed order deleting the name of a person as the tenant of a certain land, the Tahsildar could not initiate a suo motu proceeding subsequently and declare him tenant. 18 Where the State authorities had certified that the petitioner's father, his grand father, maternal uncle and maternal grand uncle were Gond by caste and otherwise scheduled tribes, the State Government is estopped by the rule of estoppel from challenging its own certification. 19 Where the petitioner was issued a pharmacist licence for five years, after the authority being duly satisfied, the authority could not take plea at the time of its renewal that he had no qualification to seek renewal of his licence. 20 Where a party succeeded on the plea that the Revenue Court or Rent

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Control Court had no jurisdiction to entertain the application of the petitioner, and the civil court alone had jurisdiction, later cannot turn round in the civil court and say that the civil court had no jurisdiction. 21

A litigant cannot be permitted to assume inconsistent positions in court to the detriment of his opponent. 22 A person getting advantage of his plea in a prior suit is not entitled to take a plea inconsistent therewith in a subsequent suit. 23 The two essential elements of an election are:-25)   That the person who is electing should have a choice between the two alternative courses, and, (2) he should derive an advantage, on such choice. A defendant adopting the valuation made by the plaintiff for the purpose of filing an appeal cannot be said to have a choice in the matter as he is generally bound to adopt the valuation made by the opposite party. The rule that a party to a litigation cannot both approbate and reprobate is a rule essentially of logic rather than of law, based on the principle that where a party to a litigation has deliberately taken a particular position (without being induced so to take it by the opposite party), he must act consistently with it. The rule is different from estoppel. In the case of an estoppel, the representee should have altered his position to his detriment, for the rule of approbate and reprobate to apply, the representor must have obtained an advantage by the representation made or the stand taken by him. The principle variously known as approbate and reprobate is an application of the doctrine of election. 24

Where there was termination of service at the request of the Government servant, he cannot challenge the order as invalid on the ground that it was made under a non-existing rule, as he once elected his choice to have his service terminated. 25 Where a man is entitled to one of the two inconsistent rights and he has with full knowledge done an unequivocal act indicating his choice of the one he cannot afterwards pursue the other. 26 A person who has acted as a trustee of a public temple as evinced by his own admission and conduct and who has obtained decrees of the courts in that capacity cannot subsequently turn round and claim the temple to be private temple, or the properties as his absolute properties. 27 Where an order of requisition was served on the wife treating her as owner of the house and the wife challenged the requisition order, it is not open to the Government, to plead that the real owner was her husband on whom an earlier order of requisition had been served. 28 Where the stand taken by the respondent in the proceedings under Order XXI, R. 97, C.P.C., throughout was that he was not the judgement debtor and that therefore the executing court could not proceed against him under Rule 98, it was not open to him to contend later on that he was in fact a representative of the judgement debtor and as such the only remedy open to the appellant lay in execution.29 The defendant in a case successfully contested the competency of execution proceedings started on the basis of a decree on the award, on the ground that the decree contemplated enforcement of the claim by means of a separate suit, he cannot be allowed to say, when the plaintiff filed such a suit that the suit was not an appropriate remedy and it was barred u/ Section 47,Civil Procedure Code. 30 In a previous writ petition u/Art. 32 before the Supreme Court, the case of the petitioner was that he had purchased at auction the whole village R for cultivation under a sale deed which clearly stated that small area of land had already been sold to another. The Supreme Court held that the village R fell within the inclusive part of the definition of 'an estate' u/Art. 31-A (2)(a)(iii) of the Constitution and therefore the validity of the Daman Regulation of 1962 was protected from challenging u/Arts. 14, 19 and 31 of the Constitution. In a subsequent writ petition before the High Court, between the same parties, the petitioner's contention was that he was not the holder of the whole village R and as such was not a proprietor as defined in Section 2(h) of the Regulation. It has held, that the doctrine of approbate and reprobate applied to the conduct of the petitioner and he should not be permitted to depart from the unequivocal stand taken by him in the Supreme Court. A person who purchased at a sale with full knowledge that the judgement debtor had no saleable interest in property, is precluded from subsequently contending that the sale was void and that he should get a refund of the purchase

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money. To such a person, the doctrine that a person cannot approbate and reprobate is applicable. 31 A party cannot be allowed to accept a document for some purpose and reject the same document to his advantage, the rule of approbate and reprobate applies. 32 A person having some advantage under a transaction as a valid one which otherwise he would not be entitled to, cannot say that it was invalid for purpose of securing some further advantage. 33 Where a deed reserving annual rent provided that on termination of lease, lessee should hand over possession of property along with buildings and trees, the lessee on termination of lease claimed compensation for tress planted. It was held that the lessee could not blow hot and cold, for if he relied upon lease deed, he was not entitled to get compensation and if the lease deed was inadmissible for want of registration, he would not be entitled to compensation in respect of improvements effected on property demised. 34 A person who specifically avers that a document is a Will cannot be allowed to say that it is not a Will but a family arrangement. 35 If a person chooses to accept a legacy under a Will , he will be estopped from setting up a title contrary to its provisions. 36 A Hindu Coparcener who took the property under a Will of another coparcener and act ed on the terms of the Will , and his transferees who bought the property with notice of his title, are estopped from questioning the Will . 37 Merely because the plaintiff brought a suit against a tenant claiming title to the property occupied by that tenant on the basis of a Will, it would not attract the doctrine of election in a subsequent suit for partition on the basis that the properties were joint family properties and the plaintiff and others were coparceners. To attract this doctrine there must be two sets of properties. One to which the testator is entitled and the other of the which the person, who gets the benefit as the owner and it is then that the owner/legatee is put to the necessity of the election as to whether he would accept his gift in which event he should allow his property bequeathed by the testator to devolve in the manner provided by the testator. 38 The rule of estoppel or waiver cannot be applied against retrenched workmen who have no freedom to refuse payment in view of their financial position caused by the retrenchment. 39 If a person by force of circumstances is compelled to adopt one of the two courses, it cannot be said that he had two courses open to him and that he adopted one and abandoned the other, there is no question of estoppel by election in such case. 40 The right to realise cess, like the right to realise rent, accrues periodically and, if the person entitled to cause for any particular period chooses, either deliberately or through misapprehension of his right, to accept in satisfaction of his dues less than he is entitled to, his act will not estop him from claiming his full dues for a subsequent period subject to the law of limitation. 41 If the reliefs in alternative are interlinked, plaintiffs cannot be put on election to choose between reliefs 42 but where the petitioner had already instituted a civil suit for the forgery of documents, writ petition was not maintainable for the same relief. 43 Execution of promissory note by purchaser for amount due to vendor, does not extinguish vendor's lien under Section 55 of the T.P. Act and such execution does not estop the vendor from an action on such lien. 44 To preclude a party from 'blowing hot and cold' or 'playing fast and loose' or to use a more common expression, from 'approbating and reprobating' one must establish a case of estoppel, waiver or acquiescence to invoke the well-known principles, underlying res judicata or election. 45 A party having claimed on the basis of the investment in commercial speculations, cannot claim on another basis when he finds that the first basis is prejudicial to him. 46 A party cannot both approbate and reprobate, and cannot induce another party to alter his position by a representation and then to go back on that representation. 47 Plaintiff's father had settled a dispute and received his share of saleproceeds of trust property sold by trustee, plaintiff could not charge the trustee for committing breach of trust nor could follow the alleged trust properties on the principle of estoppel. 48 Doctrine of approbate and reprobate can apply only to orders passed by a court of competent jurisdiction notwithstanding that it was passed with or without consent of parties. 49 The accused pleaded in a previous trial that the prosecution was invalid for want of proper sanction. His plea was accepted and he was acquitted. He was prosecuted again on fresh sanction. The accused is estopped from pleading double jeopardy on the ground that the previous trial was valid. He cannot approbate and reprobate. 50 A party obtaining relief or benefit by an order of a court or tribunal is estopped from challenging that order subsequently by a suit on the ground that it was made without jurisdiction or was not correct. 51 Decree holder creditors applying for rateable distribution of assets held by executing court in another decree passed by the High Court, can not challenge the decree under

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which the assets were held, as invalid, on the ground that the High Court had no jurisdiction under Cl. 12 of Letters Patent to pass decree for sale of properties outside the local limits of its ordinary original jurisdiction. 52 Where a person enjoyed full benefit of a trial after remand of a case he is estopped from challenging the legality of order of remand. 53 In a case the petitioners were declared owners/ bhomidhars of the land acquired by the government and received compensation in respect to that land. After a gap of about ten years they challenged the notifications of acquisition and the award of compensation stating that the Government was owner of the said land and hence it could not acquire its own land. It was held that they could not be allowed to approbate and reprobate as they had never accepted the Government as owner earlier. 54 Where the respondent State though aware of the interim stay order, ignored the same and proceeded with the acquisition proceedings, they could not be permitted to take any advantage of the said interim order. 55 Where the consignee obtained delivery of goods from the carrier after inspection and found no damage to goods, subsequent claim by the consignee for short delivery against the carrier was barred. 56 Where the Central Govt. allowed the change of location of a factory and the State Govt. communicated that the unit so transferred will not be allowed any concession due to new units and the company agreed to it, it later on could not claim certain exemptions granted to entrepreneurs for setting up of a new unit. 57 When the scrutiny of nomination papers was adjourned at the instance of a party, it does not lie in his mouth to call in question the act of adjournment by the returning officer. 58 Where a party seeks amendment of an election petition and obtains an order in his favour from the tribunal, he cannot turn round and say that amendment must be ignored. 59 The candidate contesting the election and also succeeding cannot allege that the election process was unlawful. 60 Where a party volunteered before the arbitrator for extending time, his conduct of questioning of extending time was hit by the principle of approbate and reprobate. 61 When an assessee company makes a representation under one section of the Finance Act and obtains a monetary benefit, it cannot change its front and deny the truth of the representation made earlier in order to avoid liability.62 A tenant in appeal against his eviction took the stand that S. 12(1)(h) of M.P. Act 41 of 1961 did not apply. In appeal by special leave, the tenant could not contend otherwise. 63 An order under Section 14(a) of West Bengal Premises Rent Control (Temporary Provisions) Act (17 of 1950), was passed accepting the contention that a person was a tenant, who submitted to it by making payment of rent month by month. The tenant later committed default in payment of rent. It was held that he could not turn round and avoid the result of his default by setting up plea that Section 14(4) does not apply to his case as he was not a tenant. 64 Where a person has accepted the benefit of an auction sale by receiving a part of the surplus money, he cannot attack the auction sale. 65 Where the disputed land was sold in auction by the revenue court for arrears of rent after the plaintiff's objection against the sale was rejected and the plaintiff received the balance of the sale proceeds after adjusting the arrears of rent, it was held that she was estopped from challenging the propriety of the auction sale. 66 A party sold her land charging higher price for Town Planning scheme to Municipal Corporation, Ludhiana, agreeing for 25% of the land to be left for common purposes like roads and parks. The colony having been constructed and development work completed, the party sued to recover the land left for common purposes showing it as her personal property. The Court held that the party was estopped from claiming so, after having taken advantage of selling her plots in a developed colony and charging a higher price. 67 Where a party, at first, took a plea that he was a tenant and, thereafter, he took entirely a different plea that he was a trespasser and prayed that the matter be referred to the tenancy Court to decide the same which was rightly rejected as he knew his own status better and he could not be allowed to take inconsistent pleas. 68 Where the petitioner admitted himself to be a tenant of the premises, it was not open for him to allege that he was licensee of it. He could not be permitted to take inconsistent stand. 69 Where a party to an arbitration agreement gives up his right to refer the dispute to arbitration, and other side takes recourse to the other remedies that are open to him in law, the party who has waived his right to settle the dispute through arbitration cannot be permitted to turn around and contend that he is entitled to the remedy of

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arbitration. 70 Where the appellant had successfully made a plea before the Rent Controller in an earlier suit that the suit was not maintainable since the property in dispute was not a rented land, he would be estopped from pleading that the civil Court had no jurisdiction to try the suit subsequently filed before it and to contend that the plaintiff should seek remedy before the Rent Controller by way of ejectment proceedings. 71 Where the defendant took the specific plea that the entire consideration for the purchase of disputed property in his name was provided by him and the plaintiff's had not contributed any portion thereof, having failed in proving the same, the defendant was estopped from contending that in the event the Court came to the conclusion that the plaintiffs had contributed to purchase of the property in his name such transaction was hit by the provisions of the Benami Transaction (Prohibition) Act, 1988. 72 Where the High Court ordered for sale of the property in public auction after making publication and before the actual auction took place to ascertain fair value, offers were invited from the parties and one of a couple of offers of a certain person was accepted by the Court which was challenged by the petitioner on the ground that no public auction took place as per directions of the Court, hence, the said offer was rejected. The petitioner who was of the same category, blowing both, hot and cold was estopped to claim for acceptance of his offer without a public auction after publication as per direction of Court. 73 Where an agreement to live separately was alleged to be entered between husband and wife on certain terms and conditions which was against the law and public policy, it was held that the husband could not take advantage of some of the conditions favourable to him and leave other conditions which were not favourable to him. 74 Where the Industrial Tribunal rejected the plea of a protected workman under Sections 33 of the Industrial Disputes Act at instance of the management, the management cannot be allowed to raise a plea in an appeal before the commissioner for workmen's compensation that since the employee claimed to be protected workman, the forum for relief is an application under Sections 33 of the Industrial Disputes Act .75 Acceptance of the salaries and subsistence allowances by employees from the municipal corporation would debar them from turning round and claiming that all along they were employees of the Government, and that the corporations had no jurisdiction to take disciplinary act ion against them. 76 Where a person obtains a benefit from the other party by a transaction of exchange, he must be taken to have accepted the validity of the exchange. Having taken the benefit under the exchange deed, he can not later challenge its validity. 77 Having accepted the right of the mother to execute the sale deed on behalf of her minor son and got the properties under the same, the alliance cannot turn round and repudiate the authority of the mother to effect the sale on behalf of the minor, or to repurchase the property of the minor upon refund of the consideration money. 78 Where detenu under conservation of Foreign Exchange and Prevention of Smuggling Activities Act requested to be represented by a 'friend' but he did not take his friend with him before the Advisory Board, he could not fall back on his right to be represented by a 'friend' and say that the Board did not, on its own, ask him if he had brought his 'friend' with him. 79 Having accepted the validity of a gift deed and a subsequent deed of assignment, it is not open to a person to say that either the one or the other of the documents is invalid. 80 Where the subject-matter of an appeal was the validity of a special general meeting held for election of the Board of Directors and the Chairman, and the parties compromised and agreed to hold a fresh meeting for election, and the petitioner participated actively in the second meeting, he is estopped from contesting the validity of the first meeting. 81 However, in the instant case, in the larger interest and keeping in view the vacancies in the cadre, the Supreme Court granted equitable relief in favour of the eligible and qualified unsuccessful candidates by issuing necessary directions for their appointment in spite of their approbation and reprobation. 82 93 Lissenden v. C.A.V. Bosch Ltd., 1940 AC 412; Union of India v. Bharat Fire & General Insurance Ltd., AIR 1961 Punj 157; National Insurance Co. Ltd. v. Mastan, AIR 2006 SC 577, 582 (para 24). 1 Searf v. Jardine, (1882) 7 AC 345(HL) ; followed by L ORD A TKIN in United Australia v. Barclay's Bank Ltd., (1941) AC 1 and M.P. Rajan v. Kerala State Election Commission, Thiruvananthapuram, AIR 1999 Ker 399 (para 8). 2 The origin of this maxim is discussed in Lissenden v. C.A.V. Bosch Ltd., (1940) AC 412 at 417, 418 : (1940) 1 All ER 425 at 429 HL, per Viscount Maugham, but in England the maxim appears not to express any formal legal concept; see that case at 429, per L ORD A TKIN . See also Harrison v. Wells, (1967) 1 QB 263 at 277 : (1966) 3 All ER 524 at 530 CA, per S ALMON LJ.

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3 Banque de Marchandas de Moscou (Koupetschesky) v. Kindersley, (1951) Ch 112 at 119, 120 : (1950) 2 All ER 549 at 552 CA, per Sir Raymond Evershed MR (citing Smith v. Baker, (1873) LR 8 CP 350; Re Morton, ex parte Robertson, (1875) LR 20 Eq 733; Evans v. Bartlam, (1937) AC 473 at 479 : (1937) 2 All ER 646 at 649 HL, per Lord A TKIN , and at 483 and at 652 per Lord R USSELL of Killowen. 4 Lakshmidevamma v. Kesawarao, AIR 1935 Mad 1066; B.S. Lail v. Sardar Mal, AIR 1964 MP 124. 5 P.J. Kurien v. Renjitha, 2000 Cr LJ 1731 (para 8) (Ker). 6 Nagubai Ammal v. B. Shama Rao, AIR 1956 SC 593; See also Nirmal Chand v. Parameswari Devi, AIR 1958 MP 333. 7 P.J. Kurien v. Renjitha, 2000 Cr LJ 1731 (para 8) (Ker). 8 Bhabu Ram v. Baij Nath Singh, AIR 1961 SC 1327 : (1962) 1 SCR 358. See also Prafulla Chandra Sinha v. Chotanagpur Banking Association Ltd., AIR 1965 Pat 502. 9 Commissioner of I.T., Madras v. Firm Muar, AIR 1965 SC 1216, 1221 (para 13). 10 United Bank of India v. Abhijit Tea Co. (Pvt.) Ltd., AIR 1999 Cal 81 (para 25). 11 Union of India v. Kashinath Mahto, AIR 1998 Pat 100 (para 9). Following State of Tamil Nadu v. K. Sabanayagam, AIR 1998 SC 344 (para 12). 12 Satnarain v. Union of India, AIR 1970 Del 232. 13 Aminlal v. Hunna Mal, AIR 1965 SC 1243. 14 Uderaj Raj Singh v. Ram Bahal Singh, ILR (1946) All 549 : AIR 1946 All 436; See also State of Bihar v. B.L. Agarwalla, AIR 1966 Pat 410; I.T. Commr., Mysore v. Canara Bank, AIR 1967 SC 417. For estoppel by pleadings see Jai Kishan v. Mumtaz Beg., AIR 1984 SC 1890. 15 AIR 1930 Cal 32. 16 Ram Khelawan Singh v. Maharajah of Banaras, AIR 1930 All 15; Uttamchand v. Saligram, AIR 1929 Nag 79; Indermall Lohia v. Sub-Judge, Secunderabad, AIR 1958 AP 779. 17 Indermull Lohiya v. Sub. Judge, Secunderabad, AIR 1958 AP 779; Parandhamayya v. Samasekharaswamy Temple, (1970) 1 And LT 154; Controller of Insurance Simla v. Vanguard Insurance Co. Ltd., AIR 1966 Mad 437; See also Ram Khelawam Singh v. Maharajah of Benaras, AIR 1930 All 15; Udrej Singh v. Ram Bahal Singh, AIR 1946 All 436. 18 Vijayabai v. Shriram Tukaram, AIR 1999 SC 431. Also see Tractors and Farm Equipment Ltd. v. Collector of Customs, (1998) 9 SCC 665; Promostyle Exports v. Collector of Customs, (1998) 9 SCC 362; Balu Laxman Khatik v. Biru Ramchandra Kotmire, (1999) 1 SCC 308; T. Ramaiah v. Sajjan Bai, AIR 2001 NOC 89(Kant) : (2001) 1 Kant 1552. 19 State of Bihar v. Sumit Anand, AIR 2004 Pat 1 : 2003 AIHC 656. 20 R.K. Lavela v. State of Mizoram, AIR 2003 Gau 47, 49 : 2002 (4) Crimes 277 : 2002 FAJ 494. 21 Kondala Rao v. Gopal Rao, ILR 1964 AP 740; Gurumarthappa v. Chickamunisamappa, AIR 1953 Mys 62; A.N. Shah v. A. Annapurnamma, AIR 1959 AP 9; A. Phuluwa v. Laxmichand, AIR 1960 MP 138; Controller of Insurance Simla v. Vanguard Insurance Co., AIR 1966 Mad 437; Champalal v. Sampat Raj, (1963) 13 Raj 468; Inder v. Gurdit Singh, (1973) 2 Punj 43; Chowdappa v. Chowdappa, 2000 AIHC 1713 (paras 8, 9, 11 and 13) (Kant). 22 State of Bihar v. B.L. Agarwalla, AIR 1966 Pat 410. See also Balakrishna Menon v. Padmavathy Amma, AIR 1993 Ker 218 (para 11); State v. Janamohan Das, AIR 1993 Ori 180 (para 16); Amrit Kaur v. Chaman Lal, AIR 1994 HP 21 (para 18); Mario Shaw v. Martin Fernandez, AIR 1996 Bom 116 (para 5); P.K. Vasudeva v. Zenobia Bhanot, AIR 1999 SC 3323 (para 8). 23 Umrao Singh v. Man Singh, AIR 1972 Del 1. 24 Kuppanna Gounder v. Peruma Gounder, AIR 1961 Mad 511(FB) ; relying on Nagubai v. B. Shama Rao, AIR 1956 SC 593. 25 Md. Kutubbuddin v. State of A.P., (1969) 2 SCWR 856 : 1969 SIR 819; State of Assam v. Harnath Barua, AIR 1957 Assam 77; General Manager, Telephones, Ahmedabad v. V.G. Desai, AIR 1996 SC 2062 (para 15).

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26 R.S. Vijayam v. Srinivasa, AIR 1956 Mad 301; Union of India v. Bharat Fire and Gen Insurance Co., AIR 1961 Punj 157. 27 Mareppu Venkata Ramana v. Sri Rama Mandiaram, AIR 1966 AP 197. See also 3 ACES, Hyderabad v. Municipal Corporation of Hyderabad (FB), AIR 1995 AP 17 (para 33); Kashmir Singh v. U.O.I., (2008) 7 SCC 259, 277 : (2008) 9 Scale 224. 28 Haradevi v. State of A.P., AIR 1957 AP 229. 29 Madan Mohan v. Hari Anandilal, AIR 1959 Bom 269. 30 B.S. Lail v. Sardar Mal, AIR 1964 MP 124. 31 Kumarasami Chetti v. Subramania Chetty, AIR 1953 Mad 671. 32 Pishori Lal v. Pooran Chand, (1964) 2 Punj 5. 33 Ambu Nair v. Kelu Nair, AIR 1933 PC 167; Sobrahmanya v. Sobrahmanya, AIR 1929 PC 156; Subbarama Ayyar v. Chinnaswami Thanjirayar, AIR 1935 Mad 295. 34 Perisaswami Pillai v. Sri Arunjadeshwara Swami Temple, AIR 1967 Mad 257. 35 Kasturchand v. Kapur Chand, AIR 1975 MP 136. 36 Probodh Lal Kandu v. Hurrish Chandra Dey, (1904) 9 CWN 309. 37 Laxshmamma v. Sreeramulu, AIR 1927 Mad 1066; Suhashini Dasi v. Ahibhushan, AIR 1963 Cal 520 (person taking benefit under the will). 38 Purshottam v. Bhagwat Sharan, AIR 2003 MP 128, 135 (para 24). 39 B.N. Elias & Co v. Fifth Industrial Tribunal, AIR 1965 Cal 166. 40 Azra Abdulla v. Silton Hotel, AIR 1975 Kant 225; Bhupendra Kumar Bose v. State, ILR 1959 Cut 189. 41 Ramkumari Devi v. Haridas, AIR 1952 Pat 239. 42 Kailash Chandra v. Raj Kishore, AIR 1965 Ori 108. 43 Rajendra Prasad Gupta v. State of Bihar, AIR 2000 Pat 331 (para 8). 44 Sundara Raja Pillai v. Sakthi Talkies, AIR 1967 Mad 127. 45 Subodh Chandra Mazumdar v. Manorama Ghose, (1956) 1 Cal 150. 46 Hariram Serowgee v. Madan Gopal Bagla, AIR 1929 PC 77. 47 B. Kulla v. Board of Revenue, (1965) 2 Mad 56. 48 Joseph Carlox Xavier v. Stanislaus Costa, (1966) 2 Mad 385. 49 K.R. Sankar v. Buvanambal Ammal, AIR 1971 Mad 368. 50 Mahabir v. State, AIR 1959 All 783. 51 S.N. Rajan v. Govindaraj, AIR 1953 Mys 1; Samarathmal v. Jugaldas, AIR 1974 Raj 104; Jitendrarai v. State, AIR 1954 Saurashtra 90(DB) ; Rajaram Bahu v. Babu Shanker Kadam, ILR 1978 Bom 933. 52 Abdul Jabbar v. Venkata Sastri, AIR 1969 SC 1147. 53 Brijlal v. Muni Tandon, AIR 1979 Punj 132. 54 Badam Singh v. Union of India, AIR 1998 Del 162 (para 6). 55 Anil Kumar v. State of Rajasthan, AIR 1998 Raj 202 (paras 18 and 20). 56 Scindia Steam Navigation Co. Ltd. v. Union of India, AIR 1998 Ker 250 (para 8).

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57 State of M.P. v. Bindal Agro Chemical Ltd., AIR 1997 SC 367, reversing MP No. 1 of 1988 and 4348 of 1989 decided on 9.10.1990 (MP). 58 Badrivishal Pillie v. J.V. Narsing Rao, AIR 1959 AP 116. 59 B.T. Bhosle v. M.S. Aney, AIR 1961 Bom 29(DB) . 60 G.S. Shivakumar v. The State of Karnataka, 2001 AIHC 3212 (para 12) (Kant). 61 Food Corporation of India v. Dilip Kumar Dutta, AIR 1999 Cal 75 (paras 30 and 31). See also Acquet Trading Co. Pvt. Ltd. v. State of W.B., AIR 2006 (NOC) 1207(Cal) . 62 I.T. Commer., Bombay v. Army & Navy Stores, AIR 1958 Bom 23. 63 Jai Kishan v. Mumtaz Begum (Mst.), AIR 1984 SC 1890. 64 D.R. Gellatly v. J.R.W. Cannon, AIR 1953 Cal 409. 65 Somnath Singh v. Ambika Prasad, AIR 1950 All 121. See also Bank of India v. O.P. Swarnakar, AIR 2003 SC 858 (para 115) : (2003) 2 SCC 721. 66 Prafulla Chandra v. C.B. Association Ltd., AIR 1965 Pat 502(DB) . 67 Municipal Corporation, Ludhiana v. Balinder Bachan Singh, (2004) 5 SCC 182, 187 (para 18). 68 Sukumabai v. Chandgonda Kalgonda Patil, AIR 2003 Bom 131, 135 (para 13) : 2002 (5) Bom CR 641. 69 Randhir Singh Khokhar v. Vidya Mandir Inter College, 2003 AIHC 4450, 4451 (paras 17 & 18) (All). 70 Ramakrishna Theatre Ltd. v. G.I.&C. Corpn. Ltd., AIR 2003 Kant 502, 505(para) : 2003 AIR Kant HCR 2621 : 2003 (4) Civ LJ 545 : ILR (Kant) 2003 (4) Kar 3463 : 2004 (1) Kant LJ 611. 71 Durga Dasss v. Sansar Singh, 2003 AIHC 2800, 2802 (paras 8 & 10) (P&H) relying on Indemull Leniya Loniya v. Sub-ordinate Judge, Secunderabad, AIR 1958 AP 779. 72 M. Prinster v. Marcel Martins, AIR 2002 Kant 191, 203 (para 30) : 2002 AIR Kant HCR 1026 : 2003 (1) Civ LJ 484 : 2002 (4) ICC 157 : ILR (Kant) 2002 (3) Kar 3757. 73 Radhey Shyam Gupta v. Ist. Addl. Civil Judge, Agra, AIR 2004 All 183, 186 (para 8) : 2004 All LJ 1632 : 2004 (14) All Ind Cas 861 : (2004) 55 All LR 107 : 2004 (1) All WC 234 : 2004 (3) Bank Cas 328 : 2004 Bank J 911. 74 Pothapragada Sri Lakshmi Maruthi Hara Gopal v. P. Sheshu Kumari, AIR 2004 NOC 257(AP) : 2004 (3) Andh LT 607 : 2004 (4) Andh LD 832 : 2004 (2) DMC 655 : 2004 (2) Hindu LR 498 : 2004 (3) Civil Court C 300 : 2004 (20) Ind LD 110. 75 Remington Rand of India Ltd. v. Thiru R. Jambulingam, AIR 1974 SC 1915. 76 Abdul Rahim v. Chief Executive Officer, AIR 1964 AP 407. 77 Veeraju v. Venkayya, AIR 1960 AP 222. 78 Raju Bala Dasi v. Nidhuram, AIR 1960 Cal 65. 79 Sebina v. State of Kerala, 1994 Cr LJ 1291 (para 17) (Ker). 80 K. Veerankutty v. Pathamma Kutty, 1956 Mad 514. 81 Yugal Kishore v. B.N. Rahtogi, AIR 1958 Pat 154. 82 Tridip Kumar Dingal v. State of W.B., (2009) 1 SCC 768, 785 (para 63).

33. ESTOPPEL BY ACCEPTANCE Where the party filed an application for regularisation of land without prejudice to its rights and contentions in the pending proceedings which meant that he fully knew that he had no right, title and interest in or over the land in question and thus accepted the title of the State, it could not in law turn

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around and contend that the same was not binding on it. 83 Where the Railway Authority specifically declared short delivery of goods at the destination to the representative of the sender without disclosing any reason for the same, it was held that such acceptance could not create estoppel against the sender or his representative in claiming the balance amount of goods or compensation for loss in future. 84 83 Mahalaxmi Motors Ltd. v. Mandal Revenue Officer, (2007) 11 SCC 714, 735 (para 51) : (2007) 12 JT 200. See also Ku. Tarang Kapil v. The State of M.P., AIR 2008 (NOC) 184(MP) ; Tamil Nadu Housing Board v. Sea Shore Apartments Owners' Welfare Association, AIR 2008 SC 1151, 1158 (para 27) : (2008) 3 SCC 21. 84 Union of India v. Agarwala & Co., AIR 2008 (NOC) 1396(Cal) .

34. ESTOPPEL BY ACCEPTING COSTS Where an appeal was restored to file on condition of payment of cost and the opposite party withdrew the costs so deposited, he cannot challenge that order of restoration, having elected to treat the order as valid. 85 Where the Court allowed the application of for setting aside the ex parte decree & judgment passed in a partition suit on payment of certain costs, having received the costs, though belatedly, it was not open to the plaintiff to seek the cancellation of the order of setting aside ex parte judgment on the basis of technical plea that costs was not paid by the defendant within the time stipulated in the said order. 86 Where proceedings were dismissed for default and restoration was ordered conditional on party's paying compensatory costs, the acceptance of amount of costs was held not to estop other party from raising challenge on a point of law as to the correctness of order on merits. 87 Where the costs were accepted under protest, there is no estoppel. 88 Where costs are granted on an unconditional order the respondent can have no opportunity to waive his right to question the validity or the correctness of the order and therefore acceptance of costs cannot be operated as estoppel, against him in the absence of proof of waiver. 89 Where there was a conditional order for restoration on payment of cost and only part of the cost deposited and withdrawn it was held that there was no estoppel to challenge the order for restoration. 90 Where the counsel of the party received cost awarded by the Court on allowing the application for setting aside an ex parte decree & judgment, with the endorsement of words 'without prejudice to the rights of the party', it was held that it could not be said that the party had waived his right to challenge the order of setting aside an ex parte decree as his counsel had received the costs. 91

85 Dhrubendra Deb Roy v. Kumarendra Deb Roy, AIR 1959 Cal 19; Maniram v. Beharidas, AIR 1955 Raj 145; Kabiram v. Anandiram, AIR 1952 Assam 93; Md. Siddique v. Nand Kishor, AIR 1952 Bhopal 41; Pappy v. Cheriyan, (1966) 1 Ker 434; Sewak Parshad v. Gram Panchayat, AIR 1972 Punj 272; Metal Press Works, Calcutta v. G.M. Cotton Press, AIR 1976 AP 205; Kiranalal v. Krishna Das, AIR 1954 MB 12; Amar Singh v. Perhalad, 1989 P&H 229 (DB); Ram Naresh Kanoo v. Sardar Harjashbir Singh, AIR 1990 Gau 12; Sreeramulu v. Venkatanarasimhan, AIR 1938 Mad 1004; Ramaswami Chettiar v. Chidambaram Chettiar, AIR 1927 Mad 1009 (2); Venkatrayudu v. Ramakrishnaiah, AIR 1930 Mad 268; State v. Rampo (Smt.), AIR 1960 All 636; Zahurul Islam v. Tanweer Jahan Begum, AIR 2000 Ori 140 (para 4); Radheshyam Palod v. Shantidevi, AIR 1994 NOC 191(MP) . 86 Parvatewwa v. Bhagawwa, 2002 AIHC 3395, 3396 (para 5) (Kant). 87 Amar Singh v. Perhlad, AIR 1989 P&H 229 not followed; K.R. Singh v. A.G. Thakare, AIR 1991 Bom 296. 88 Cudise Trinath Rao v. Sudhansu Prasad, AIR 1992 Oris 168; following Ananda Behera v. Nilkamal, AIR 1975 Oris 173. 89 Devaiah v. Nagappa, AIR 1965 Mys 102. See also Bijendra Nath Srivastava v. Mayank Srivastava, AIR 1994 SC 2562 (paras 20 and 21). 90 Hashmat Rai v. Lalchand, AIR 1952 Bho 43. 91 Sisir Kumar v. Brahmananda Mallick, 2002 AIHC 3746, 2749 (para 7) (Ori).

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35. ESTOPPEL BY ACCEPTANCE OF CONDITIONS Stage carriage permit was granted by imposing certain conditions. Applicant accepted the conditions and claimed to have fulfilled them by producing clearance certificate. The applicant challenged the validity of the conditions. It was held that he could not be allowed to challenge the validity of order of the conditions in revision. 1 Where the petitioners did not challenge the general terms and conditions of auction of lease sites and the letter of allotment, they were estopped from challenging the proceedings initiated to recover the amount of premium and the ground rent. 2 Where in a suit for the recovery of policy amount from an insurance company, there was an averment in the plaint that under the terms of the policy, the claim of interest was barred, hence no interest was being claimed, prayer for interest by way of cross-objection could not be allowed. 3 Where the petitioner had accepted to produce a certain serial on T.V. in 13 episodes, he was barred by estoppel to seek permission subsequently to produce that serial in 26 episodes. 4 The plea that a convict, having secured his release upon imposed conditions, cannot turn around and question the validity of such conditions, is not tenable in view of S. 432,Cr.P.C. under which imposition of automatic conditions would be neither reasonable nor fair. 5 In a case under Section 420 , 406 of the , where a Court persuaded to accept terms and conditions for grant of indulgence and an undertaking was given on behalf of the accused to deposit the amount in pursuance of granting indulgence, it was held that the accused could not be permitted to resile from such conditions. 6 1 Bachcha Pandey v. Deo Sunder Devi, AIR 1968 Pat 248. See also Indu Shekhar Singh v. State of U.P., AIR 2006 SC 2432, 2439 (para 25) : (2006) 8 SCC 129, reversing 2003 All LJ 2194; Secretary, Bhubaneshwar Development Authority v. Susanta Kumar Mishra, (2009) 4 SCC 684, 690 (para 18).. 2 Sukhpal Singh Kang v. Chandigarh Administration, AIR 1999 P&H 156 (para 53). 3 Life Insurance Corporation of India v. Ambika Prasad Pandey, AIR 1999 MP 13 (para 20). 4 Gopi Chand Television v. Director, Doordarshan Kendra, Hyderabad, AIR 1995 AP 199 (paras 11 and 12). See also Delhi Development Authority v. S.N. Kapoor, 2000 AIHC 2955 (paras 11 and 16) (Del). 5 Hari Singh v. State, 2000 Cr LJ 1964 (paras 15, 17 and 18) (Del). 6 M.R. Narayan v. State, 2003 CrLJ 1472, 1478 (para 19) (Del) : 2003 (3) All CrLR 701 : 2003 (55) Chand LR (Civ & Cri) 256 : 2003 (103) Del LT 534 : 2003 (66) Del RJ 48 : 2003 (2) Rec CrR 81.

36. ESTOPPEL BY ACCEPTANCE OF POLICY DECISION Having accepted the policy decision taken after hearing all the parties without any demur, the appellants/parties could not be permitted to say that implementation of the policy/scheme without hearing them was in violation of the principles of natural justice. 7 7 Central Power Distribution Co. v. Central Electricity Regulatory Commission, (2007) 8 SCC 197, 206-07 (para 21) : AIR 2007 SC 2912.

37. ESTOPPEL BY ACCEPTING EARNEST MONEY Where the defendant entered into an agreement to sell land to the plaintiff and accepted earnest money, he was estopped from contending that he was not the owner. 8 8 Ram Sewak v. Subhash Chandra Misra, AIR 1996 All 257 (para 23).

38. ESTOPPEL BY ACCEPTING REDEMPTION AMOUNT Having accepted the redemption amount and even delivered possession, the mortgagee could not approbate and reprobate. 9

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9 K. Vilasini v. Edwin Periera, (2008) 14 SCC 349, 355 (para 26) : AIR 2009 SC 1041.

39. ESTOPPEL IN EXECUTION PROCEEDINGS Where a decree holder applied rateable distribution of assets by the executing court in respect of another decree, they are estopped from questioning that decree on the ground that the court had no territorial jurisdiction to pass that decree. 10 Defaulting purchaser's liability for deficiency on resale under Order XXI, R. 71, C.P.C., arises only if the deficiency is attributable to his default. When the first auction sale did not disclose any encumbrance but the second sale discloses the encumbrance, the auction purchaser could not be estopped from contending that the disclosure of the encumbrance in the second sale was the operative cause for the fall of the price and he is not a defaulter u/O. XXI, R. 71, C.P.C. The auction purchaser is not estopped from impeaching the charge or incumbrance over the property though he purchased it subject to charge or incumbrance. As the auction purchaser buys the property with all risks and defects in the judgement debtor's title, if it was found that charge or incumbrance to be invalid, he is entitled to the benefit thereof.11 Where a compromise in execution, provides merely, the mode of discharging decree, no new contract is created and the decree can be executed when the judgement debtor failed to comply with the compromise subject to limitation and no estoppel applies and a separate suit is not necessary. 12 Where a compromise petition in execution proceedings did not disclose that any statement amounting to a representation was made by A, and upon the footing of that representation anything was done by B, it was held that the compromise petition did not estop A from challenging the sale in execution of the decree. 13 Where the judgement debtor had notice under O. XXI, R. 66, C.P.C. and had knowledge of the contents of the sale proclamation and did not object as to the valuation, misdescription of the property was not saleable or transferable, he would be estopped from raising objection later and question the sale as to legality of the sale or of the attachment. 14 In the previous proceedings, under O. XXI, R. 90, C.P.C., based on the ground that the attachment was invalid, the objector, by a compromise obtained time from the decree holder to pay his decretal dues and agreed that on failure to pay, the court-sale in favour of the decree-holder would stand good. The objector failed to pay and the court sale was confirmed. The objector would be estopped to turn round and contest the legality of the sale or of the attachment in subsequent proceedings.15 10 Abdul Jabbar v. Venkata Sastri, AIR 1969 SC 1147. 11 Izatunnissa Begum v. Pratap Singh, ILR 31 All 583(PC) ; Narayan Sodoba v. Umbar Adam, ILR 35 Bom 275; Agloa Sutan Khan v. Mohabbat Khan, 1921 All 79; Man Kaur (Mst.) v. Ishar Das, AIR 1930 Lah 40. 12 Bharat Bank v. Sehgal Brothers, AIR 1960 Punj 459; Uttam Chandu Kirthy v. Khetra Nath Chattopadhya, ILR 29 Cal 577. 13 Satyanarain v. Baidyanath, AIR 1953 Pat 383. 14 Arunachalam v. R, (1908) 12 Mad 19; Maharaj Bahadur Singh v. Sachindra, AIR 1928 Cal 328; Behari v. Mukat, ILR 28 All 273; Raja of Kalahasti v. Maharaja of Venkatagiri, 38 Mad 387 : AIR 1915 Mad 989; Ramanathan v. Ramanathan, AIR 1929 Mad 275; Kaluram v. Shambhoo Singh, AIR 1964 Raj 84. 15 Baidyanath v. Satyanarain, AIR 1960 Pat 36; Batakrishna v. Apurbo Krishna, AIR 1938 Pat 199.

40. KINDS OF ESTOPPEL There are different kinds of estoppels: (1) estoppels by matter of record; (2) estoppels by deed; and (3) estoppels in pais .

41. ESTOPPEL BY RECORD--ESTOPPEL AND RES JUDICATA

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A matter of record is something part of the records of a Court. It is at once the narrative and the proof of its proceedings. Estoppel by records results from the judgment of a competent Court. The law allows a party ample opportunity, by way of appeal and otherwise, of upsetting a wrong decision. And if he takes the opportunity and fails, or does not choose to avail himself of it, he cannot subsequently reopen or dispute that decision. And not only the parties themselves, but also the heir, executor, administrator and assignee of each of them are bound by the decision, for they are 'privy to the estoppel'. A decree amended on an application filed by the claimant for review thereof, becomes final. If the State was aggrieved by and dissatisfied therewith, it could have taken the matter by filing an appropriate application before the High Court. But keeping in view the fact that the said order was allowed to attain finality, the Court could not have permitted the State to re-agitate the said question before the executing Court by filing an application under Section 47 of the Code of Civil Procedure or otherwise. In a case of this nature, the principle of estoppel by records shall come into play. 16 The principle of estoppel and res judicata are based on public policy that if the controversy in issue is finally determined or decided by the competent Court and if such decision attains finality, then it will be illogical to allow the parties to such proceedings to reopen the same issue again and again which not only destroys the binding nature of judicial pronouncement, but also renders such decisions nugatory. 17

Estoppel by matter of record is chiefly concerned with the effect of judgments and their admissibility in evidence, and this kind of estoppel is dealt with by Ss. 11 to 14, Civil Procedure Code, and Ss. 40-44 of the Evidence Act . In H ALSBURY 4th Ed., Vol. 16, Para. 1503, page. 1009 it is observed: "Estoppel of record or of quasi-record, also known as estoppel per rem judicatam, arises (1) where an issue of fact has been judicially determined in a final manner between the parties by a tribunal having jurisdiction, concurrent or exclusive, in the matter, and the same issue comes directly in question in subsequent proceedings between the same parties (this is sometimes known as cause of action estoppel); (2) where the first determination was by a court having exclusive jurisdiction, and the same issue comes incidentally in question in subsequent proceedings between the same parties (this is sometimes known as issue estoppel); (3) in some cases where an issue of fact affecting the status of a person or thing has been necessarily determined in a final manner as a substantive part of a judgment in rem of a tribunal having jurisdiction to determine that status, and the same issue comes directly in question in subsequent civil or criminal proceedings between any parties whatever. Where the earlier decision is that of a court of record the resulting estoppel is said to be "of record"; where it is that of any other tribunal, whether constituted by agreement of the parties or otherwise, the estoppel is said to be "quasi of record". The force and effect of a judgment depend first upon the nature of the proceedings in which it was rendered, i.e., upon the question whether it was an action in rem or in personam ; and secondly upon the forum in which it was pronounced, i.e. upon the question whether it was a judgment of a domestic or foreign court. The record of a judgment in rem is generally conclusive upon all persons. In other cases, so far as the record purports to declare rights and duties, its material recitals import absolute variety between the parties to it and those who claim under them. The estoppel arising from or fixed by the fact enrolled constitutes the estoppel of a judgment. And to the question whether the judgment necessarily creates an estoppel, the general answer is, yes, if it results in res judicata; no, if it does not. 18 The distinction between the doctrine of res judicata and the doctrine of estoppel was explained by M AHMOOD J., in Sitaram v. Amir Begum. 19 "That the effect of the plea of res judicata may, in the result, operate like an estoppel by preventing a party to a litigation from denying the accuracy of the former adjudication, cannot be doubted. Perhaps the shortest way to describe the difference between the plea of res judicata and estoppel is that the while the former prohibits the court from adjudicating a matter already adjudicated upon, the latter prohibits a party after the enquiry has already been entered upon from proving anything which would contradict his own previous declaration or act s to the prejudice of another party who relying upon

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those declarations of acts, has altered his position. In other words res judicata prohibits an enquiry in limine , whilst an estoppel is only a piece of evidence." Res Judicata results from a decision of a court while estoppel results from declarations, conduct and act s of parties. Estoppel by record is what is provided for in Section 11, Civil Procedure Code. It is not within the province of a court to introduce another kind of estoppel by judgement not covered bySection 11 of Civil Procedure Code or the general principles of res judicata . 20 A compromise decree creates an estoppel by judgment. A judgment operates as estoppel as regards all the findings which are essential to sustain the judgement. 21 Estoppel precludes evidence being led to prove a fact in issue in respect of which evidence had already been led and a specific finding recorded in an earlier criminal proceeding before a court of competent jurisdiction. 22 The essence of estoppel by judgement is that a party cannot be allowed to say one thing at one time and another at a later time. A judgment can be an estoppel only as between the parties to it unless it is a judgment in rem which is binding against all the world. 23 Matter decided at an earlier stage of the same suit or proceeding would be binding between parties at a subsequent stage. 24 Where the plaintiff's title over the suit property was held to be established on the basis of a valid sale-deed, subsequent suit for declaration of title by the defendant was barred by res judicata . 25 Once a party makes a submission before the High Court it is estopped to say otherwise later on. 26 Where in a suit, a party gave an undertaking not to raise the issue settled therein again, the party could not be allowed to raise that issue again in a different suit between the same parties and regarding the same subjectmatter. 27 In a land acquisition case, the persons who had accepted the judgment of the learned Single Judge of the High Court and did not file appeal against the said judgment, were held to be estopped from challenging the same after twenty years merely by getting themselves impleaded as respondents in an appeal filed by others. 28 Principle of res judicata would apply where the order of the Court has become final. 29 In order that a plea for exclusion of evidence in second trial on ground of issue of estoppel be allowed, the issue must have been distinctly raised and decided in the previous trial. 30 The plea not raised in the earlier petition on the same matter could not be raised in the subsequent petition. 31 Doctrine of binding nature of the decree either by way of res judicata or otherwise, will have no application as against transferee for valuable consideration and without notice, in the case of a mere declaratory decree. Where, however, the decree is executable and the property charged can be sold in execution of the decree, the transferee will be bound by the decree and in such a case it is wholly immaterial whether the decree itself created the charge or the charge was created by a compromise or an award which was embodied in the decree. 32 In a suit by a municipal board for restraining enforcement of restitution order against it on the ground that ownership in property vested in it, it was held that the Board could not be estopped from maintaining the regular suit since the question of ownership was not decided in a previous suit against it. 33 Grounds decided in favour of detenu at a previous trial cannot be made basis for his subsequent detention. 34 Where there were contemporaneous suits between the same parties in respect of the same subject-matter and they were disposed of by a common judgment but two decrees passed and against one decree an appeal was prepared, the fact that there was one unappealed decree does not create an estoppel in the proceeding under appeal. 35 In the absence of judgement and decree passed in the previous suit for maintenance, the admitted facts cannot take the place of estoppel by record and hence a subsequent suit for recovery of maintenance cannot be barred by res judicata . 36 The court which pronounces a judgment or order must have inherent jurisdiction to do so, otherwise, the judgement or order has no effect. Such a judgement or order cannot operate as an estoppel even against the person who sought the assistance of the court whose jurisdiction is impugned. 37 Res judicata based on principle of estoppel by record does not arise out of a decision which is a nullity. 38 It is the final decision and not any and every expression of opinion in a judgment which gives rise to an estoppel by record, and the actual decision cannot be carried further than the circumstances warrant. 39 The general principle which runs through the doctrine of estoppel by record is that a decree is an order of the Court and the judgment-debtor must, when it has once been completed, obey it unless and until he can get it set aside in proceedings duly constituted for the purpose. 40

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A party accepting payment under an arbitrator's award cannot afterwards challenge it.

41

Estoppel by record is not applicable to taxation matters. 42 Although the principle of estoppel or res judicata does not strictly apply to the Income-tax Authorities, it is not open to a Tribunal to come to a different conclusion to the one arrived at by that very Tribunal earlier without any limitation whatsoever. An earlier decision on the same question cannot be reopened if that decision is not arbitrary or perverse, if it has been arrived at after due inquiry, if no fresh facts are placed before the Tribunal giving the later decision, and if the Tribunal giving the earlier decision has taken into consideration all material evidence. 43 G having adopted the plaintiff as a son to her deceased husband, disputes arose between her and the defendant, her mother-in-law, regarding the validity of the adoption. The arbitrator to whom the disputes were referred declared that the plaintiff's adoption was invalid, that the right of adoption was lost to G from the very beginning and that nevertheless with the object of obtaining peace and goodwill the defendant should pay Rs. 8,000 to the plaintiff. A decree in terms of the award was obtained, the plaintiff having admitted the terms thereof and the receipt of Rs. 8,000. Subsequently G again adopted the plaintiff. Held that though the plaintiff was litigating under the same title, the bar of res judicata would not apply as the previous decree was passed in terms of the compromise, but that the underlying principle of estoppel was applicable and the plaintiff was estopped from contending that G had the right to adopt him even if the matter had passed from the stage of mere representation into an agreement. 44 Decision in an appeal filed by an assessee who is an ex-partner of an unregistered firm and where each of the ex-partners was assessed separately, is not binding on others as res judicata or estoppel. 45 Where in accidental claim cases directions were issued to the owner of the vehicle for the payment of the compensation awarded appeal against which for enhancement was not filed either by the owner or the claimant in one of the cases and the claimants had also the right to contend that the award should be satisfied by the insurance company, non-filing of appeal in the said case cannot defeat such right and would not operate as res judicata . 46 Where an earlier petition filed by a private party for corruption against a Chief Minister on the basis of CAG report and limited documents then available was dismissed, the police was not estopped from filing another petition on the basis of additional material on the same subject matter. The principle of res-judicata would not apply. 47 Where the private complaint filed under Sections 15(2) of the Contempt of Courts Act by an Advocate Commissioner who was restrained from executing a search warrant was dismissed for default, it does not operate as bar against contempt proceedings initiated by the High Court on the basis of the report of the Magistrate. The doctrine of estoppel or principle ofres judicata was not attracted. 48 Where in an earlier proceeding the High Court held that the jurisdiction of the Civil Court to decide the disputed question of title to a certain suit land was not barred, the Courts jurisdiction could not be challenged in a subsequent proceeding on the same grounds. 49 16 Jaya Chandra Mohapatra v. land Acquisition Officer, Rayagada, (2005) 9 SCC 123, 128 (para 12); See also Narasimhaiah v. State of Karnataka, 2002 CrLJ 4795, 4801 (para 20) (Kant) : 2003 AIR Kant HCR 40 : 2002 (3) Crimes 704 : 2002 (2) Cur CrR 445 : ILR (Kant) 2002 (3) Kar 3157 : 2002 (2) Kant LJ 408; Kanhaiya Lal v. State Bank of India, AIR 2008 Pat 153 (paras 2 and 3). 17 Sanjay G. Khemuka v. State of Maharashtra, AIR 2004 Bom 245, 265 (para 49) : 2004 (3) All MR 687, following, Hope Plantations Ltd. v. Taluk Land Board Peormade Ltd., (1999) 5 SCC 590 (para 26) : (1998) 7 JT 404. See also Hari Ram v. State of Rajasthan, 2004 AIHC 3451, 3453 (para 13), (Raj). 18 B IGELOW , 6th Edn., pp. 406, 410, W OODROFFE AND A MEER A LI , 9th Edn. p. 850. 19 (1886) 8 All 324. 20 Sarangapani v. Venkata Narasimhacharyulu, AIR 1952 Mad 384; Res judicata is estopped by judgment Jai Narain v. Bulaqi Das, AIR 1969 All 504(FB) . 21 Sailendra Narayan v. State of Orissa, AIR 1956 SC 346; Kesavan v. Padmanabhan, AIR 1971 Ker 234. 22 Pritam Singh v. State of Punjab, AIR 1956 SC 415; Union of India v. Amar Chand, AIR 1965 HP 11. 23 Ahmed Ali v. B. Yeeralla, AIR 1959 AP 280.

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24 Abdul Shakur v. Kotwaleswar Prasad, AIR 1958 All 54. 25 Syed Md. Abdus Samad v. Bibi Anwari Khatoon, 1998 AIHC 598 (paras 17 and 18) (Pat). See also K.C.P.K.C.Y. & Co. v. N.Y. Yenkitakrishnan, 1998 AIHC 767(Ker) . 26 Shree Anupar Chemical (India) Pvt. Ltd. v. Dipak G. Mehta, AIR 1999 Bom 349 (para 7). 27 Amarendra Komalam v. Usha Sinha, AIR 2005 SC 2758 (paras 22 to 28). 28 Ram Karan v. Union of India, 2006 AIHC 152, 153 (para 4). 29 Ambalammal v. Radha Bai, AIR 1994 NOC 326(Mad) . See also Deewan Singh v. Rajendra Pd. Ardevi, (2007) 10 SCC 528, 544 (para 51) : AIR 2007 SC 767. 30 State v. Khetaram, AIR 1965 Raj 221. 31 Anantha Shishu Sevashrama v. State of Karnataka, 2007 AIHC 3471, 3475-76 (para 14) (Kant), relying on Ishwar Dutt v. Land Acquisition Officer, (2005) 7 SCC 190 : AIR 2005 SC 3165 and Swamy Atmananda v. Sri Ramkrishna Tapovanam, (2005) 10 SCC 51 : AIR 2005 SC 2392. 32 Mahesh Prasad v. Mundar (Mt.), AIR 1951 All 141. 33 Municipal Board, Meerut v. Bir Singh, AIR 1965 All 527. 34 Ram Newaj Beta v. State of U.P., (1965) 2 All 261. 35 Lachmi v. Bhulli, 8 Lah 384(FB) ; Jai Narain v. Bulaqui Das, AIR 1969 All 504(FB) . 36 Bhuturi v. Milkira, AIR 1950 Assam 162. 37 Ahsan Dar v. Md. Dar AIR 1963 J&K 15 (FB); Kameshwar Pandey v. Deolal Barhi, AIR 1964 Pat 247; Raghuraj Prasad Singh v. Basudeo Singh, AIR 1950 Pat 318. 38 Gulabji Khodaji v. Moksamiya Imam, ILR 1967 Guj 982. 39 Ghasiram v. Kundanbai, ILR (1941) Nag 513. 40 Ramrao v. Dattadayal, (1947) Nag 889. 41 Govindiji Jevat & Co. v. Shree Saraswat Mills, AIR 1982 Bom 76. 42 Nowrangilal v. State of Orissa, AIR 1965 Ori 44(DB) ; Machereappa v. Govt. of A.P., AIR 1958 A.P. 371; H.A. Shah & Co. v. Commr. of I.T., AIR 1956 Bom 375. 43 H.A. Shah & Co. v. Commissioner of Income-Tax, Bombay, (1956) 58 Bom LR 45. 44 Sunderabai v. Devaji, AIR 1954 SC 82. 45 I.T. Commissioner v. S.K. Bose, AIR 1969 Cal 4; See also under "Promissory Estoppel". 46 Jadi Behera v. Utpala Rout, 1999 AIHC 972 (para 13) (Ori). 47 K. Kaunakaran v. State of Kerala, 1997 Cr LJ 3618(Ker), distinguishing Jagnarain Singh v. State, AIR 1968 All 388 : 1968 Cr LJ 1457. 48 Advocate General of A.P. v. Chennamsetty Chakrapani, 1997 Cr LJ 3333(AP) . 49 Hari Nath v. Raghu Nath, AIR 1998 HP 28, at p. 31.

42. DOUBLE JEOPARDY The offences under Sections 138 of Negotiable Instruments Act and under Section 420 IPC are different and quite distinct even though there may be overlapping and sometimes the accused person may commit both the offences but these offences cannot be construed as arising out of the same set of the facts, therefore the question of application of the principle of double jeopardy or rule of estoppel would not arise. The acquittal of the accused for the charge under Section 420 of IPC would not

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operate as estoppel for a finding of fact or law to be given in prosecution under Sections 138 of Negotiable Instruments Act .50 50 Y. Kutumbe Rao v. M. Chandrashekhar Rao, 2003 CrLJ 4405, 4409 (para 11) (AP) : 2003 (2) Andh LD (Cri) 830 : 2003 (2) Andh LT (Cri) AP 226 : 2003 (3) Bank Cas 500.

43. ISSUE/CAUSE OF ACT ION ESTOPPEL The basic principle underlying the rule of issue estoppel is that the same issue of fact and law must have been determined in the previous litigation 51 . The court has inherent jurisdiction as a matter of discretion in the interests of finality and not to allow a particular issue which has already been litigated to be reopened. 52 Where no issue was decided, the principle of res judicata, constructive or otherwise cannot be attracted. 53 Principle of issue estoppel is simply this that, where an issue of fact has been tried by a competent court on a former occasion and a finding has been reached in favour of an accused, such a finding would constitute an estoppel or res judicata against the prosecution not as a bar to the trial and conviction of the accused for a different and distinct offence but as precluding the reception of evidence to disturb that finding of fact when the accused is tried subsequently even for a different offence which might be permitted by law. 54 Not only the parties in the two trials must be the same but also fact in issue proved or not in the earlier trial must be identical with what is sought to be reagitated in the subsequent trial. 55 The principle of issue estoppel is different from double-jeopardy or autre fois acquit. For issue estoppel to arise there must have been distinctly raised and inevitably decided the same issue in earlier proceedings between the same parties. It does not prevent the subsequent trial but relates to the admissibility of evidence to upset the finding of fact. The rule is in accord with sound principle and Section 300, Cr. PC (Section 403Cr PC old) does not prevent its application.56 The doctrine of issue estoppel applies as much in the case of criminal proceedings as in civil proceedings. 57 Where a Magistrate acquitted the accused on a minor offence and it was set aside and later the accused was committed for a major offence, it was held that the principle of res judicata would not apply. 58 Where a person as prosecuted for defalcation committed by him in his capacity as cashier, and he was acquitted by the High Court in an earlier case of defalcation on finding that he was not in charge of cash, it was held that the finding of the High Court, in the earlier case did not operate as issue estoppel in the subsequent case since the subsequent defalcation related to an altogether different period. 59 When earlier order that it was exempt from sales tax was made on the basis of only one sample sent by assessee, and later the assessee sent 26 samples for determination as to taxability, there is no issue estoppel. 60 Proceedings in connection with Foreigners (Internment) Order Para 5 are not criminal proceedings. Hence where in a prosecution under Sections 14 of Foreigners Act accused is acquitted on the ground that he is not a foreigner, that decision does not operate as issue estoppel to bar subsequent action against the same person under Para 5 of Foreigners (Internment) Order 1962 to deport him as a Foreigner. 61 Two identical cases were filed by the Government. Later a G.O. was passed regarding withdrawal of one case. It cannot be said that other cases should be dismissed on basis of the doctrine of issue estoppel. 62 Where the first suit for judicial separation was withdrawn on persuasion of friends, a second suit for divorce on the same grounds is not barred by estoppel. 63 There is a distinction between a case where the defendant consents to a judgment after pleading the defence, and a case where he consents to a judgment before setting up any pleading. The defendant in the latter case is not estopped as against the plaintiff from subsequently setting up matters which might have constituted the defence because there has never been an issue before the consent decree. 64 The issue of estoppel in a criminal matter has a different foundation to be looked into. The burden lies specifically on the person, who holds and who wants to take shelter of the principle of estoppel. The requirement is that both the proceedings should necessarily be criminal proceedings. In the instant case, the wife had filed a suit for maintenance under Section 125of the Cr.P.C. which is quasi-civil in nature. She had also filed a criminal suit under 498-A, IPC resulting in acquittal of the husband which was held not to operate as estoppel to maintenance proceedings as the cause of action in that proceeding was different. 65

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Where the revision against rejection of accused's prayer under Section 337 (1),Cr. P.C. for summoning a witness, was rejected on the ground of limitation and the enquiry thereafter proceeded in the trial court, the accused is estopped from raising the same issue again in an application underSection 337(1),Cr. P.C.66 Merely because in previous years the plaintiff claimed mesne profits at reduced rates, there is no question of estoppel for subsequent years. It is no doubt a circumstance to be taken into account for purpose of ascertainment of mesne profits but the admission in plaint is by no means conclusive, as the claim at low rate might well have been to avoid payment of court fee. 67 "..."cause of act ion estoppel" is that which prevents a party to an action from asserting or denying, as against the other party, the existence of a particular cause of act ion, the non-existence or existence of which has been determined by a Court of competent jurisdiction in previous litigation between the same parties. If the cause of action was determined to exist, i.e. judgment was given on it, it is said to be merged in the judgment..... If it was determined not to exist, the unsuccessful plaintiff can no longer assert that it does; he is estopped per rem judicatam ." 68 A cause of act ion estoppel arises where in two different proceedings identical issues are raised, in which event, the latter proceedings between the same parties shall be dealt with similarly as was done in the previous proceedings. In such an event the bar is absolute in relation to all points decided, save and except allegation of fraud and collusion. 69 "Assuming that it is open to a defendant in the appeal against the ex parte decree to object to the decree on the ground that he had not sufficient opportunity to adduce evidence in a case where he did not choose to avail himself of the special procedure, it does not by any means follow that, where he did actually avail himself of the special procedure and failed, still it would be open to him to have the same question re-agitated by appealing against the decree." 70 In a case certain employees of a certain cadre claimed equal pay to that of the other cadre on the principle of equal pay for equal work. The Govt. did not contest the case and the Single Judge of the High Court granted relief with the stipulation that the decision would not be treated as precedent for any other case and that the other cases should be contested by the government. The government did not challenge the decision. It was followed and relief granted in many subsequent cases as the government failed to point out the stipulation. Thereafter, a Single Judge disagreed with that decision which was upheld by the Division Bench. The Division Bench held that the earlier judgment could not be treated as precedent and could not decide the rights of the parties. This judgment neutralised earlier judgments and the beneficiaries thereof filed a special leave petition on the ground of not having been heard by the Division Bench. The Supreme Court set aside the judgment of the Division Bench and remitted the matter back to the Division Bench to decide the matter after hearing them. That amounted to the review of the whole issue and they could not bank upon the principle of res judicata or issue estoppel regarding the benefits enjoyed by them by virtue of the earlier decision of the Single Judge. 71 51 G.P. Sinha v. State of Bihar, AIR 1971 SC 458. 52 Rev. Secy. of State, (1984) 1 All ER 956 at 964 and Ali v. Secy. of State, (1984) 1 All ER 1009. Noted all ER Annual Rev. 1984 at 160-161. See also Shiromani Gurdwara Parbandhak Committee v. Harnam Singh, AIR 2003 SC 3349 (para 17) : (2003) 11 SCC 377, following Mahant Harnam Singh v. Gurdial Singh, AIR 1967 SC 1415 in which Nirmalas were declared to be not Sikhs. 53 Kamta Prasad v. IInd Addl. District Judge, Mainpuri, AIR 1997 All 201. 54 Masud Khan v. State of U.P., AIR 1974 SC 28; following Pritam Singh v. State of Punjab, AIR 1956 SC 415; Manipur Administration v. Bira Singh, AIR 1965 SC 87 : 1965 (1) Cr LJ 120; Piara Singh v. State of Punjab, AIR 1969 SC 961 : 1969 Cr LJ 1435; State v. L.R. Melwani, ILR 1969 Bom 349; Ravinder Singh v. State of Haryana, AIR 1975 SC 856; Ramesh Chandra Biswas v. State, 1994 Cr LJ 1134 (paras 17 and 18) (Cal). 55 Ravinder Singh v. State of Haryana, AIR 1975 SC 856; Mohar Rai v. State, AIR 1968 SC 1281. 56 Manipur Administration v. Bira Singh, AIR 1965 SC 87; Re Piara Singh v. State of Punjab, AIR 1969 SC 961; State of A.P. v. Kokkiligada, AIR 1970 SC 771; Baidyanath Basak v. Union of India, 1983 Cr LJ 1542(Cal) . 57 Sambasivam v. Public Prosecutor, Federation of Malaya, 1950 AC 458.

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58 Ramekbal v. Madan Mohan, AIR 1967 SC 1156; dissenting from Pritam Singh v. State of Punjab, AIR 1956 SC 415; Sambasivam v. P.P. Fed. of Malaya, 1950 AC 458; Masud Khan v. State of U.P., AIR 1974 SC 28. 59 G.P. Sinha v. State of Bihar, AIR 1971 SC 458. 60 Filter Co. v. Commissioner of Sales Tax, M.P., (1986) 2 SCC 103 : AIR 1986 SC 626. 61 Masud Khan v. State of U.P., AIR 1974 SC 28. 62 D.R. Rao v. G. Somi Reddy, 1987 Cr LJ 1629(AP) . 63 Dina Dinshaw Merchant v. Ardeshir Merchant, ILR 1969 Bom 1043. 64 Parasuram v. Pandu, AIR 1956 Hyd 178. 65 Dnyandeo Dhakane v. State of Maharashtra, 2006 CrLJ 4581, 4583-84 (para 6) (Bom). 66 Santosh Saha v. State, (1973) 2 Cal 173. 67 Jagannath Prasad v. Badiul Mulk Khan, AIR 1954 Pat 447. 68 Thoday v. Thoday, (1964) 1 All ER 341, per L ORD D IPLOCK , followed in Barber v. Staffordshire County Council, (1996) 2 All ER 748. 69 C. (a Minor) v. Hackney London Borough Council, (1996) 1 All ER 973. 70 Badvel Chinna Asethu v. Vettipalli Kesavayya, AIR 1920 Mad 962. 71 Dela Narayan Shyam v. State of W.B., (2005) 2 SCC 286 (paras 17-19) : AIR 2005 SC 1167.

44. ISSUE ESTOPPEL AND RES JUDICATA --DISTINCTION ' Res judicata ' bars a Court from exercising its jurisdiction to determine the lis if it has attained finality between the parties whereas the doctrine of 'issue estoppel' is invoked against the party. If such an issue is decided against him, he would be estopped from raising the same in the later proceeding. The doctrine of res judicata creates a different kind of estoppel viz . estoppel by Record. 72 72 Bhanu Kumar Jain v. Archana Kumar, AIR 2005 SC 626 (para 30) : (2005) 1 SCC 787.

45. ESTOPPEL BY DEED Doctrine of estoppel by deed would apply as pointed out by Dalton v. Fitzerald 73 , when the person sought to be estopped or his predecessor in interest has obtained possession of property or some advantage under the deed. 74 If a document is fictitious, it is of no legal consequence and the parties to such a document are not bound by the contents thereof. 75 A vendor seeking to enforce an option of repurchase contained in the original sale deed is not estopped from taking the conveyance from the vendee even if he knew at the time of original agreement that he was not the rightful owner. 76 Where the recital in a deed is intended to be a statement which all the parties to the deed have mutually agreed to admit as true, it is an estoppel upon all. But where it is intended to be a statement of one party only the estoppel is confined to that party when in a deed of sale, the vendors make unilateral statement that the vendors are inamdars of the property transferred, the vendees are not bound by it and they are not estopped from denying that fact. 77 Where the plaintiff signed the partition deed partitioning the properties belonging to the family and the relinquishment deed relinquishing his rights in favour of other member of the family, subsequently he could not file a suit for declaration of title over the said properties by pleading that there being no

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concept of joint family or right by birth under the Muslim Law, the said documents were void. He will have to file a suit for cancellation of those documents first. 78 73 (1897) 2 Ch 86. 74 Damaraju v. Narayana, 1941 Mad 551. 75 Shib Dai v. Ghauri Lal, AIR 1965 J&K 11. 76 Nathoolal v. Ganpat Prasad, AIR 1958 M.P. 84. 77 Dattatraya Prahlad v. Basawaneppa Chanbasappa, ILR 1960 Mys 1092. 78 Habeeba Begum v. Gulam Rasool, 2000 AIHC 1981 (paras 10-12) (AP). See also L.Y. Sundaram v. L.Y. Krishna Iyer, 2001 AIHC 3333 (para 45) (Mad).

46. ESTOPPEL IN PAIS Estoppel in pais (i.e. "in the country", or "before the public"), or more fully "estoppel in pais de hors the instrument" (i.e. with regard to matters outside a record or deed) as known to the common law was of an entirely different character to the estoppel in pais of the present days. "Indeed the estoppel in pais of the present day has grown up entirely since the time of C OKE , and embraces cases never contemplated in that character by him or by the lawyers of even much later times though old lines are often visible in the newer pathways." Estoppel in pais arises (1) from agreement or contract; and (2) from act or conduct of misrepresentation which has induced a change of position in accordance with the intention of the party against whom the estoppel is alleged. Estoppel in pais is dealt with in Ss. 115 to 117. Sections 116 and 117 are instances of estoppel by contract, viz., that of the tenant, the licensee, the bailee and the acceptor of a bill of exchange. But the distinction between estoppel by contract and estoppel by conduct is not preserved in the Evidence Act. See Commentary under the head "Conduct".

47. PROMISSORY ESTOPPEL In H ALSBURY 4th Ed., Vol. 16, Para: 1514, Page: 1017 it is observed: "When one party has, by his words or conduct, made to the other in clear and unequivocal 79 (per L ORD C ROSS of Chelsa) promise or assurance which was intended to affect the legal relations between them and to be act ed on accordingly, then, once the other party has taken him at his word and acted on it, the one who gave the promise or assurance cannot afterwards be allowed to revert to their previous legal relations as if no such promise or assurance had been made by him, but he must accept their legal relations subject to the qualification which he himself has so introduced. This doctrine, which is derived from a principle of enquiry enunciated in 1877, has been the subject of considerable recent development and is still expanding. It differs from estoppel in pais in that the representation relied upon need not be one of present fact. Doctrine of promissory estoppel does not belong to law of contract or evidence but appertains to equity and fairness in act ion. 80 The doctrine cannot create any new cause of action where none existed before, and it is subject to the qualification (1) that the other party has altered his position; (2) that the promisor can resile from his promise on giving reasonable notice, which need not be a formal notice, giving the promisee a reasonable opportunity of resuming his position; (3) the promise only becomes final and irrevocable if the promisee can not resume his position. The doctrine is known variously as "equitable" or "promissory" or "quasi" estoppel. It is a doctrine evolved by equity in order to prevent injustice. 81

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The principle of promissory estoppel is based on equitable principles. A person who has himself misled the authority by making a fake statement, cannot invoke this principle, if his misrepresentation misled the authority into taking a decision which on discovery of the misrepresentation is sought to be cancelled. 82 A plea of promissory estoppel is in the nature of an equitable plea and must be determined in the facts and circumstances of each case where it is raised. 83 The promissory estoppel is based on equity or obligations. It is not based on vested right. In equity the Court has to strike a balance between individual rights on the one hand and the larger public interest on the other. Freedom to contract is a common law civil liberty enjoyed by all persons. But when the government is contracting with private parties this common law freedom is circumscribed by the principles of administrative law which requires larger public interest to be taken into account. 84 Promissory estoppel proceeds on the footing that when on the representation of a promisor, a promisee alters his position then the former must keep his word and is not allowed to recede from his promise. 85 Merely by applying for job and receiving call letter, it cannot be said that the petitioner has 'changed or altered' his position after having been declared to have passed the university examination and the university was not debarred from cancelling his results subsequently. 86 There need not be a pre-existing contractual relationship between the parties provided there is a preexisting legal relationship which could in certain circumstances give rise to penalties and liabilities. 87 The principle also applies where the promise affects a legal relationship which will arise in the futures. Where the landlord, who assured his tenant that if the tenant gave up premise in respect of which the tenant had statutory security of tenure and moved into other premises owned by the same landlord, the tenant would enjoy the same security of tenure, and that so long as the tenant contained to practise his profession, the landlord would not ask him to leave the premises, was estopped from alleging that the tenant had no statutory security in the second premises so as to claim possession from the tenant before he had ceased to carry on his profession. 88 In its inception the equitable principle was that if parties who had entered into definite legal relations afterwards entered "upon a course of negotiations which has the effect of leading one of the parties to suppose that the strict rights arising under the contract will not be enforced, or will be kept in suspense, or held in abeyance, the person who otherwise might have enforced those rights will not be allowed to enforce them where it would be inequitable, having regard to the dealings which have thus taken place between the parties." 89 L ORD D ENNING wrote out an article, a classic in legal literature, on "Recent Developments in the Doctrine of Consideration", Modern Law Review, Vol. 15, in which he expressed as under : "A man should keep his word. All the more so when the promise is not a bare promise but is made with the intention that the other party should act upon it. Just a contract is different from tort and from estoppel, so also in the sphere now under discussion promises may give rise to a different equity from other conduct.

The difference may, lie in the necessity of showing 'detriment'. Where one party deliberately promises to waive, modify or discharge his strict legal rights, intending the other party to act on the faith of promise, and the other party act ually does act on it, then it is contrary, not only to equity but also to good faith, to allow the promisor to go back on his promise. It should not be necessary for the other party to show that he act ed to his detriment in reliance on the promise. It should be sufficient that he acted on it." 90 "A promise intended to be binding, intended to be act ed on and in fact acted on, is binding so far its terms properly apply." per L ORD D ENNING in. 91 L ORD D ENNING stated "The principle does not create new causes of act ion where none existed before. It only prevents a party from insisting upon his strict legal rights, when it would be unjust to allow him to enforce them, having regard to the dealings which have taken place between the parties....." 92 Promissory estoppel as laid down in the English cases has been applied in India.

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In order that doctrine of promissory estoppel may operate, the promise must be clear and unequivocal. 94 Mere inviting applications for allotment of houses, does not create a right; subsequent announcement to give priority to unsuccessful candidates in future, cannot be construed as promise by the Board and the Authority constituted superseding the Board and formulating a fresh scheme was not bound by earlier announcements made by the Board. 1 Where admission to an autonomous educational institution was denied at the threshold to the petitioner as she had not passed the qualifying examination from a recognised institution, direction to admit her could not be granted as the rule of promissory estoppel did not apply. 2 The doctrine of promissory estoppel, has the effect of creating substantive rights against the representee and can be viewed as a rule of substantive law. A representation of fact or intention on which the doctrine is founded if intended to be acted upon and when act ed upon becomes actionable. The claim for the relief depends upon that representation, which constitutes the cause of act ion. The representation, be it of promise, or intention or future conduct, on which this doctrine of promissory estoppel is founded is susceptible of generating enforceable promises and binding contractual obligations even where there is no consideration, such as at common law would have supported the promises and obligation. 3 It is not necessary that the promisee should suffer detriment. It is enough if he acts on the representation and alters his position. 4 Where a party made heavy investments on the modernisation of his rice mill allegedly under the Govt. Incentive Scheme but no approval was obtained as required by the said Scheme, he could not be said to be induced by the said scheme to change his position by spending a huge sum. 5 "If a promise is act ed upon such action in law as in physics must necessary result in an alteration of position". L ORD D ENNING in High Trees case. 6 Alteration of position by promise is the only requirement for application of promissory estoppel, damage, prejudice or detriment to the promise need not be proved. 7 The doctrine of promissory estoppel applies when, there is a clear and unequivocal promise relying on which the other side has act ed to his prejudice 8 but it does not bind other persons or saddle liability on other persons because of the statement of a third person. 9 Promissory estoppel is not maintainable when objection to it was not raised by the petitioner earlier, but raised for the first time in writ petition. 10 Where a company undertook to discharge tax liability of a share holder in respect of undistributed dividend and acting upon the undertaking discharged the liability, it was estopped from claiming reimburse from the share holder. 11 Where flats were allotted by the H.P. Housing Board pursuant to sanction of lay-out plan with an area earmarked for community facilities in it, the Board could not subsequently take plea that no promise was held out by it to provide community facilities to the residents. 12 Where the vendee under a contract for the sale of immovable property stated to the vendor that his money was ready and that the title deed was being prepared where those two matters alone were wanting to complete the sale and where the vendor gave five days notice to the vendeecalling upon him to complete the sale, it was held that the vendee was estopped from denying the truth of statement. 13 Where a contract gets concluded between the parties, the doctrine of promissory estoppel would not be applicable as to it as the parties are bound by its terms against the violation of which by any party, the other can take appropriate steps. 14 In a case one of the four brothers, having a preferential right to purchase or a right to pre-empt the sale, under an award, claimed his right of pre-emption against his brother who had sold his share of the joint family agricultural land to a third person. He invoked the principle of promissory estoppel which was held to be not applicable as the claimant brother had stated, though in ambiguous terms, that he wanted to sell his share of agricultural land as it was giving him no profit and was unable to manage the same but this he had stated in clear terms that he would not purchase any agricultural land. 15 Where rebate was granted by the State Electricity Board in demand and energy charges from the date of going into regular production which was subsequently withdrawn, a company starting production after the date of withdrawal was not entitled to rebate. 16 Doctrine of estoppel could not be applied where rebate was considered before the agreement but was

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not contemplated in the agreement. 17 Where the Govt. granted exemption from entertainment tax at higher rates to those constructing cinema buildings which was subsequently modified, those applying after the modification order could not invoke the principle of promissory estoppel for the exemption granted prior to the modification order. 18 The doctrine of promissory estoppel or legitimate expectation is not attracted where the assurance was conditional and the conditions were not timely fulfilled. 19 Where a section of the Act empowered the Govt. to amend the provisions of the schedule giving tariff concession to the new industries for five years and the Govt. imposed a condition before the expiry of five years, the doctrine of promissory estoppel could not be invoked against the Govt. 20 However an application by an industrial unit for incentive scheme of Govt. submitted on the date of expiry of the scheme, could not be rejected on the ground that it was not processed before expiry of the scheme. 21 The doctrine of promissory estoppel has to yield when equity demands it. Where the industries found to be sick due to mismanagement, were unwilling to follow certain suggestions, the benefit of rehabilitation scheme was declined to them. 22 The doctrine of promissory estoppel, being an equitable doctrine, should not be reduced to rule of thumb and be kept elastic enough in the hands of the Courts to do complete justice between the parties. 23 Where the petitioner never intended to establish the industry on the basis of representation under the Incentive Scheme of the Govt. and did not apply for registration under the said scheme, it was not entitled to invoke the doctrine of promissory estoppel. 24 Where there was no proof of any promise held out by the Municipal Corporation, the doctrine of promissory estoppel could not be enforced against the Corporation. 25 The promise of the municipal corporation to accept the tender, if the tenderer is willing to pay the entire bid amount within sixty days from the date of receipt of the final acceptance, is no ground for acceptance of the tender on the principle of promissory estoppel. 26 Enforcement of an assurance under the doctrine of promissory estoppel is not based on the terms of the contract, but the nature of the assurance held out which is acted upon by the assured persons who alter their position owing to such assurance. 27 The doctrine of promissory estoppel is premised on the conduct of the party making a representation to the other so as to enable him to arrange its affairs in such a manner as if the said representation would be act ed upon. It provides for a cause of action and need not necessarily be a defence. 28 79 Woodhouse AC Israel Cocca Ltd. SA v. Nigerian Produce Marketing Co. Ltd., (1972) AC 741 at 768 : (1972) 2 All ER 271 at 291 (HL). 80 Jindal Tharmal Power Co. Ltd. v. Karnataka Power Transmission Corporation Ltd., AIR 2005 NOC 55(H) (Kant) : (2004) 5 Kant LJ 161. 81 Intrans Systems Pvt. Ltd. v. State of Kerala, AIR 1996 Ker 161 (para 2). 82 Central Airmen Selection Board v. Surender Kumar Das, AIR 2003 SC 240 (para 7) : (2003) 1 SCC 152. 83 MRF Ltd. v. Asst. Commissioner (Assessment) Sales Tax, (2006) 8 SCC 702, 721 (para 35) : (2006) 12 JT 244. 84 M.P. Mathur v. D.T.C., AIR 2007 SC 414, 418 (para 13) : (2006) 13 SCC 706, relying on Sales Tax Officer v. Shree Durga Oil Mills, 1998 AIR SCW 186; Sharma Transport v. Govt. of A.P., 2001 AIR SCW 9458 (para 21) : (2002) 2 SCC 188 and Bannari Amman Sugars Ltd. v. Commercial Tax Officer, (2005) 1 SCC 625 (paras 19 and 20). 85 Kimti Lal Rahi v. Union of India, AIR 1993 Del 211 (Paras 18-20). See also Dalbir Singh Sihag v. Ministry of Rural Development, New Delhi, AIR 2006 P&H 191, 193 (para 9). 86 Reeta v. Berhampur University (FB), AIR 1993 Ori 27 (paras 6 and 8); overruling Rajkishore Senapati v. Utkal University, AIR 1982 Ori 189. See also Chandrika Chettri v. State, AIR 1994 Sik 1 (paras 5 and 6). See also Babusha International v. Canara Bank, AIR 2008 Del 185, 191-92 (para 25). 87 Durhan Fancy Goods Ltd. v. Michael Jackson, (Fancy Goods) Ltd., (1968) 2 QB 839 at 847 : (1968); 2 All ER 987 at 991, per D ONALDSON J. 88 Bank Negara Indonesia v. Phillip Hoalim, (1973) 2 MLJ 3, PC. 89 Hughes v. Metropolitan Rly Co., (1877) 2 App Cas 439(HL) . 90 Cited in Sharma Transport v. Govt. of A.P., AIR 2002 SC 322 (para 21) : (2002) 2 SCC 188. 91 Central London Property Trust Ltd. v. High Trees House Ltd., (1956) 1 All ER 256.

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92 Combe v. Combe, (1951) 2 KB 215. 93 Seth Satnarain v. Union of India, (1968) 2 SCWR 335; Air Corporation Employees Union v. G.B. Bhirade, AIR 1971 Bom 288. 94 Chongtham Ongbi Sabita Devi v. State of Manipur, 1985 Cr LJ 693(Gau) (DB); Ude Ram v. State of Haryana, AIR 1994 P&H 175 (para 12). No clear promise, no estoppel, M. Raja v. Ceeri Educational Society Pilani, (2006) 12 SCC 636, 639 (para 15) : (2006) 9 JT 501. See also Everest Overseas v. Jamnagar Municipal Corpn., AIR 2006 (NOC) 574(Guj) ; Bijita Saha v. The State of Tripura, AIR 2006 (NOC) 1374(Gau) : (2006) 2 Gau LT 25. 1 Kabul Singh v. Punjab Urban Planning and Development Authority, 1997 AIHC 1719, at pp. 9-11 (P&H). 2 State of U.P. v. Chandrapal Singh, AIR 2003 SC 4119 para 1 : (2003) 4 SCC 670. 3 B. Subrahmanayan & Co. v. State, AIR 1975 AP 126. 4 M.P. Sugar Mills v. State of U.P., AIR 1979 SC 621; followed in Indo-American Hybrid Seeds v. Chandigarh I&T.D. Corporation, AIR 1995 P&H 134 (paras 13 and 14) and Union of India v. Property & Finance Private Ltd., AIR 1996 Kant 264 (para 14); no promise, no change of position, no estoppel, Ram Niwas Agarwal & Sons v. State of Rajasthan, 1996 AIHC 3820 (para 7) (Raj); nothing to show petitioner acting on representation, representation not by competent authority, no estoppel, D.K. Saksaria v. Bank of Baroda, 1996 AIHC 3763, at p. 3766 (Cal); Busching Schmitz Pvt. Ltd. v. State of Haryana, 1997 AIHC 1560 (paras 29 and 36) (P&H); UNI-ADs Pvt. Ltd. v. Commissioner of M.C.H., Hyderabad, AIR 1999 AP 278 (paras 24, 27 and 28). 5 Mahalaxmi Rice Mills v. State of W.B., AIR 1996 Cal 162 (para 10). See also State of Haryana v. Bharat Steel Tubes Ltd., AIR 1996 Del 198 (para 17). 6 Central London Property Trust v. High Trees House Ltd., (1956) 1 All ER 256; Alan (W.J.) & Co. Ltd. v. El Nasr Export & Import Co., (1972) 2 All ELR 127 @ 140; Tool Metal Manufacturing Co. Ltd. v. Tungesten Electric Co. Ltd., (1955) 2 All ER 657; Viscount Simonds Ajayi v. Brscoe Lord Hodson, (1964) 3 All ER 556; Kammin's Ballroom v. Zenith Investments, (1970) 2 All ER 871; Grundt v. Great Boulder Pty Gold Mines Ltd., (1938) 59 CLR 641; All these are referred to in Meenakshi College for Women v. University of Madras, (1990) 2 MLJ 231. 7 Delhi Cloth & General Mills Ltd. v. Union of India, AIR 1987 SC 2414. 8 Anchar Ali v. State of Assam, AIR 1989 Gau 12(DB) ; Adinarayan Naik v. State of Orissa, AIR 1987 Ori 115. 9 C. Doctor and Company Ltd. v. B.S. Mills Ltd., AIR 1995 All 19 (para 3). 10 Pramod Bhai v. Officer on Special Duty No. 2 (L.A.), Ahmedabad, AIR 1989 Guj 187(DB) . 11 Turner Morrison v. Hungerford Investment Trust Ltd., AIR 1972 SC 1311. 12 Bhagat Singh Negi v. H.P. Housing Board, AIR 1994 HP 60 (para 18). Abrupt refusal by Corporation to give concession, Bharat Explosives Ltd. v. Pradeshiya Corporation of U.P. Ltd., AIR 1994 All 123 (paras 22, 23 and 28); allottes paying amounts as per terms of allotment of plots, taking possession and some of them even constructing houses, Govt. could not cancel allotments, Secretary to Govt., Housing & Urban Development Department v. Ammani, AIR 1996 Mad 70 (para 5); Pawan Alloys & Casting Pvt. Ltd., Meerut v. U.P. S.E.B, AIR 1997 SC 3910 : 1997 All LJ 202, relied on in Kamla Palace v. State of U.P., 2001 AIHC 457 (paras 11-14) (All), distinguishing Pankaj Jain Agencies v. Union of India, 1994 AIR SCW 4552 : 1994 (5) JT 64. 13 Motilal Itchhalal Gandhi v. Haji Moosa Haji Mohammad, AIR 1925 PC 124. 14 Kalpana Das v. Cotai Co-op. Bank Ltd., AIR 2005 Cal 95, 97 (para 11). 15 Mahesh Chand v. Ajai Sood, 2002 AIHC 1268, 1270 (paras 19 & 20) (All). 16 A.P. State Electricity Board v. Sarada Ferro Alloys Ltd., AIR 1993 SC 1521 (para 11), relying in Mahalaxmi Rice Mills v. State of W.B., 1996 AIHC 3401 (paras 11 and 12) (Cal). See also Tilak Chitra Mandir v. State, AIR 1993 All 30 (paras 5 and 6); applicant not entitled to benefit on date of application, no estoppel, S.B. International Ltd. v. Asstt. Director of General F.T., AIR 1996 SC 2921 (paras 9 and 10). 17 Bhoruka Power Corporation Ltd. v. State of Karnataka, AIR 1994 NOC 314(Kant) . 18 Jai Prasad Singh v. State of U.P., 1996 AIHC 3639 (paras 4 and 5) (All). 19 Chemech Engineers Pvt. Ltd. v. Director of Industries and Commerce, AIR 1994 Mad 14 (paras 28-30 and 32). See also Ganpati Salt Works v. State of Gujarat, AIR 1995 Guj 61 (paras 13, 14 and 18); Mahalaxmi Rice Mills v. State of

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W.B., AIR 1996 Cal 162 (para 10); Ananda Swarup Agarwal v. State of W.B., AIR 2000 Cal 222 (para 17); Riaz Construction Co. v. Union of India, AIR 2001 J&K 7 (para 11). 20 National Oxygen Ltd. v. Tamil Nadu Electricity Board, AIR 1996 Mad 229 (para 15). 21 Shri Bajrang Extraction Pvt. Ltd. v. Secretary, Govt. of A.P., AIR 1993 MP 202 (paras 14, 16 and 17). 22 Sanjiv Textiles Pvt. Ltd. v. State Bank of India, AIR 1993 Guj 132 (paras 20 and 21). See also K.M.L. Narasimhan, Larsen & Toubro Ltd. v. Union of India, AIR 1994 Mad 82 (para 14). 23 State of H.P. v. Ganesh Wood Products, AIR 1996 SC 149 (para 55). 24 Sree Rayalaseena Alkalies & Allied Chemicals Ltd. v. Govt. of A.P. (FB), AIR 1993 AP 278 (para 49). 25 Mangalore Municipal Market Welfare Society v. Corporation of Mangalore, AIR 1993 Kant 220 (para 39). See also Ashok Kumar v. Union Territory, Chandigarh, AIR 1995 SC 461 (paras 8 and 9); withdrawal of exemption for a specified period, no estoppel, Kasinka Trading v. Union of India, AIR 1995 SC 874 (paras 19, 21, 22, 24 and 25) : 1995 AIR SCW 680 : (1995) 1 SCC 274, relied on in Union of India v. Godhawani Brothers, AIR 1999 SC 1604 (para 3); Arvind Industries v. State of Gujarat, AIR 1995 SC 2477 (para 6); U.P.S.R.T. Corporation v. U.P. Parivahan N.S.B. Sangh, AIR 1995 SC 1115 (paras 9 and 10); Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd., AIR 1995 Cal 327 (para 18); S.R. Bhupeshkar v. Secretary, Selection Committee, Sabarmati Hostel (FB), AIR 1995 Mad 383 (para 27); Union of India v. Property & Finance Private Ltd., AIR 1996 Kant 264 (paras 12-14), reversing ILR 1991 Kant 315; Bharat Wools, Ludhiana v. State of Punjab, AIR 1996 P&H 215 (para 30); Nupur v. Punjab University, Chandigarh, AIR 1996 P&H 132 (para 37). 26 C. Jayasree v. Commissioner, M.C.H., AIR 1994 AP 312 (paras 5 and 13). 27 Nagappa v. State, AIR 1994 Kant 77 (para 32). 28 LML Ltd. v. State of U.P., (2008) 3 SCC 128, 143 (para 40) : AIR 2008 SC 1032.

48. PRINCIPLES GOVERNING APPLICATION OF PROMISSORY ESTOPPEL The application of "promissory estoppel" is governed by the following principles : 26)   The legislature can never be precluded from exercising its functions to legislate by invoking the principles of promissory estoppel. 24)   Principles of 'promissory estoppel' can be invoked against the Govt. or public authority subject to the following : 1. It cannot be invoked to compel it to act contrary to the obligation or liability imposed by law. 1. The doctrine of 'promissory estoppel' being an equitable doctrine, if it is established on the facts and circumstances that it would be inequitable, in the larger public interest, to hold the Govt. or public authority to the promise or representation made by it, it will not be enforced. 1. The doctrine cannot be invoked when the representation made by the officer or authority is beyond their powers. 1. The doctrine being an equitable one cannot be invoked, if it is shown that the representation was obtained by playing fraud, having regard to the fact that fraud vitiates everything. 29

29 Sree Rayalaseema Alkalies & Allied Chemicals Ltd. v. Govt. of A.P. (FB), AIR 1993 AP 278 (para 37), case Law discussed.

49. GOVERNMENT AND PROMISSORY ESTOPPEL

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Government and its agencies are no longer immune from the operation of the doctrine of promissory estoppel. Government agencies have to work within the framework of the legal system. Where the Working Group consisting of the representatives inter alia of the Central Govt. and Engineering Export Promotion Council was an instrumentality of the State, the Govt. was bound by the promise given by the Working Group to the concerned company. 30 The Govt. cannot resile from its promise simply on account of change of Govt., 31 but where at the point of time the industrial units were set up and the commercial production was started, there was no promise or assurance from the government, this doctrine had no application. 32 The doctrine of promissory estoppel applies in the facts and circumstances of a given case, whether such a policy is considered as government action or as subordinate delegated legislation. 33 The Government is not exempt from the equity arising out of the act s done by citizens to their prejudice, relying upon the representations as to its future conduct made by the Government 34 . Public bodies are as much bound as private individuals to carry out representations of facts and promises made by them, relying on which other persons have altered their position to their prejudice. 35 The Govt. cannot invoke the defence of executive necessity or freedom of future executive action. 36 The doctrine of promissory estoppel would undoubtedly be applicable where an entrepreneur alters his position pursuant to or in furtherance of the promise made by a State to grant inter alia exemption from payment of taxes or charges on the basis of the current tariff. Such a policy decision of the State shall not only be expressed by reason of notifications issued under statutory provisions but also under the executive instructions. 37 Unlike an ordinary estoppel, promissory estoppel gives rise to a cause of act ion. It indisputably creates a right. It also acts on equity. However, its application against constitutional or statutory provisions is impermissible in law. 38 Even a right can be preserved by reason of invocation of doctrine of promissory estoppel. of India v. Anglo Afgan Agencies , 40 the Supreme Court observe :

39

In Union

"We are unable to accede to the contention that the executive necessity releases the Government from honouring its solemn promises relying on which citizens have act ed to their detriment. Under our constitutional set up no person may be deprived of his authority of law, if a member of the Executive seeks to deprive a citizen of his right or liberty otherwise than in exercise of power derived from the law common or statute, the Courts will be competent to and indeed would be bound to protect the rights of the aggrieved citizens. 41

It was further held in its summing up thus: "Under our jurisprudence the Government is not exempt from liability to carry out the representation made by it as to its future conduct and it cannot on some undefined and undisclosed ground of necessity or expediency fail to carry out the promise solemnly made by it, not claim to be the Judge of its own obligation to the citizen on an ex parte appraisement of the circumstances in which the obligation has arisen."

The Express News Paper Pvt. Ltd., having acted upon the grant of permission by the then Minister for Works and Housing and constructed the new Express building with a double basement in conformity with the permission granted by the lessor i.e. Union of India with the concurrence of Delhi Development Authority in view of the master plan, it was held that the lessor was precluded from contending that the order of the Minister was illegal, improper or invalid by application of the doctrine promissory estoppel. 42 Where the State Government held out certain specific promises as inducement for its employees to move into a newly created department, it was held that the employees having believed the representations by State Government and having act ed thereon could not be denied rights and benefits promised to them. 43 Where as per notification of the Govt., all the successful candidates in the entrance examination were to be given six months teachers training, the Govt. could not subsequently restrict the admission to the extent of availability of seats. 44 Under an incentive scheme, entrepreneurs starting new industries were given sales tax concessions. Subsequently the order giving the concessions was withdrawn on the ground of misuse of the scheme and undue advantage taken by some entrepreneurs. However, relevant facts establishing such misuse was not

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placed before the court by the Government. It was held that the Govt., cannot resile from the promise and withdraw the concession. 45 The doctrine of promissory estoppel would be applicable where a representation has been made by the state in exercise of its power to exempt or abolish a commodity as taxable commodity. Such promise, however, must be made by the persons who have the power to implement the representation. 46 But in a case involving payment of interest free sales tax loan, the state did not deny its liability but pleaded its inability due to paucity of funds, it was held that principle of promissory estoppel was not applicable. 47 Where the State Government had given an undertaking in an earlier petition before the Supreme Court, stating that erstwhile village officers possessing general qualification under the relevant Act would be absorbed irrespective of their age, it was held that the Government could not get round the undertaking by prescribing a maximum age limit for absorption of erstwhile village officers. 48 Where an industrial company started legal proceedings claiming that the lands held by it being for non-agricultural use were outside the purview of Maharashtra Agricultural Lands (Ceiling of Holdings) Act and on Government agreeing to exempt them under Section 47(1)(k), the company withdrew the legal proceedings, the Government was held estopped from denying that the lands were held for non-agricultural use. No question of estoppel against statute arises in such a case. 49 Where the Government issues notification reviving earlier acquisition proceedings and also commences fresh proceedings by issuing notification under Section 4 of the Acquisition Act and both notification are in force but represents to the claimant that fresh proceedings will be the basis for compensation and he omits to avail of remedies under the earlier proceedings relying on such representations, the Government is estopped from treating the proceedings as revived. 50 The Oil Corporation offered distributorship of L.P.G. Gas by a letter of intent and the petitioner made substantial financial investments under the letter of intent. Subsequently the letter of intent was cancelled on the recommendation of Oil Selection Board. It was held that the principle of promissory estoppel applied and the cancellation of intent was not correct. 51 A site was granted by the Government to a Corporation for a market stating that no rent was to be charged. The Corporation was in possession for more than 70 years on a rent free basis. It was held that though the grant was invalid, it did not wipe out the representation that it would be rent free and Section 115 applied and the Corporation was entitled to be in possession in perpetuity without the liability to pay rent. 52 Where the State Government, promised assignment of land for house sites for the employees of the Central Government Undertaking and later resiled from the promise after a long lapse of time on the ground that the State Government, employees should be given preference, it was held that the doctrine of promissory estoppel applies. 53 The doctrine of promissory estoppel also applied where a N.R.I. sent some amount in foreign currency alongwith an application for allotment of a plot and on request by the Govt., holding out to him earmarking of the plot and issue of allotment letter, he paid the balance amount and the Govt. subsequently refused to allot him the plot on the ground of change of policy. 54 The Central Government, announced export assistance scheme declaring cash assistance at a particular rate on export of certain materials. Later, it unilaterally withdrew cash assistance retrospectively. It was held that the withdrawal was invalid by virtue of promissory estoppel. 55 The detaining authority refused to supply the grounds of detention at first but passed order later promising to supply the same. The authority was held bound by promissory estoppel. 56 Under a truck, matador, bus hiring scheme sponsored by M.P. State Road Transport Corporation to provide employment to educated unemployed persons, the petitioners were granted to operate on certain routes as nominees of the Corporation. Subsequently the corporation invited fresh tenders from educated unemployed persons to operate transport service on various routes including those granted to the petitioners. It was held that the corporation was estopped from doing so. 57 Land was allotted on no loss no profit basis to the petitioners for setting up educational institutions. Subsequently, Delhi was divided into four zones. The Delhi Development Authority revised price of land depending upon the location of land. It was held that it was estopped from charging at a rate higher than fixed earlier. 58 In a case the order of State Govt. cancelling the allotment of land in exchange of land owned by the landholder after a period of thirteen years and without any notice to him was held to be illegal. 59 A contractor was promised renewal of a forest lease. He paid the requisites and incurred expenditure on improvement of the site. There was some delay in granting formal renewal. Ultimately the contractor was refused because of a shift in policy. The Madras High Court did not permit the Government to go back upon its promise. 60 The Government announced a scheme of exemption under the Industries Act . The

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applicant submitted his documents within the time delimited and commenced working. The Government took four years to dispose of his application telling him that the scheme was withdrawn. The High Court of Delhi ordered the Government to grant the intended benefits to the applicant. 61 The government came out with industrial policy offering concessional rate of tariff and electricity duty to new industries for a period of five years from the date of commercial production, if the production commenced between 1.1.92 and 31.12.96. This decision was adopted by the Kerala State Electricity Board. The concerned industry was issued the registration certificate by the District Industries Centre on 27.12.1993 and the State Electricity Board issued the letter dated 7.11.1995 intimating the allocation of power in its favour but despite several intimations actual power connection was granted only in 1998. The concerned industrial unit was denied the benefit of concessional tariff as its production did not start before 31.12.1996 which was only due to non-supply of power to it. It was held that the concerned unit could not be denied the benefit of the scheme. However, in the facts and circumstances of the case, it was given the benefit for a period of three years instead of five years. 62 The moral of these cases is that there can be no whimsical withdrawal from a declared programme which has already generated act ion. 63 Where an industrialist went to the extent of erecting a factory in response to declarations of vital exemptions, B HAGWATI J (now CJ retired) held the Government bound by the scheme in reference to the petitioner. It was immaterial that his factory was running at a profit. The doctrine of estoppel is not based upon loss or detriment but upon alteration of position in response to a representation. 64 However, where the govt. pleaded 'public interest' for withdrawal of the concession, the 'public interest' so pleaded must be sufficient to outweigh the interest of the promisee and burden is on the govt. to place material to show the overriding public interest. 65 Estoppel can be invoked to hold the Government bound to its promises and agreements whether they be of executive or administrative character. A Town Development Authority was not permitted to raise prices arbitrarily 66 . Cigarette manufacturers did not collect excise on corrugated fibre board containers in which cigarettes were delivered at the factory gates on the basis of a Departmental letter. It was held that promissory estoppel was attracted. 67 The State Government allotted rectified spirit to petitioner company which put up a plant and machinery at a huge cost. The commissioner of prohibition allotted denatured spirit instead. The Plant and machinery were designed only for use of rectified spirit and the design can not have denatured spirit. It was held Government was estopped. 68 In respect of the office of S. Sajadanashin to a Durga Saheb, the Durga Committee and the parties proceeded on the basis that the hereditary office was entitled to be appointed by the descendants of the Saint who established the shrine by the rule of primogeniture, it was held that the Durga Committee would be estopped by their conduct to contend that it was not bound by the decision of the courts below, that the office was entitled to be claimed by the descendants of the Saint. 69 Courts have power in appropriate cases to compel performance of the obligations imposed upon departmental authorities by orders which are executive in character when they find that any person has acted to his detriment on solemn promises made by the State Government or its authorities concerned. 70 Building was constructed by the petitioner as per plan sanctioned by the city corporation, occupancy certificate was also issued by it. Flats were sold to different persons. Notices were issued by the corporation after 3 to 4 years for demolition of the building. It was held that the corporation is equitably estopped from issuing notices for demolition. 71 Where a circular of the Customs Department provided that demurrage did not form part of assessment value of goods imported, the same was held to be binding and the demand from the assessee based on an assessable value inclusive of demurrage could not be sustained. 72 Under Section 115 of the Evidence Act, it is open to a party who had acted on a representation made by the Govt., to claim that the Government shall be bound to carry out the promise made by it, even though the promise was not recorded in the form of a formal contract. 73 Where the authorities make express or implied representation of a fact, it is not open to them to retract from it. 74 Petitioners were incurring expenditure to their prejudice and detriment act ing on the representation of Government that they had a valid concession for supplying electric energy. Government acted for years as if they recognised and acknowledged the concession granted by the Portuguese Government. It was held that the Government was estopped from saying that they have not recognised the concession. 75 Where a person was appointed by a Municipal Committee, whose conditions of service were subject to approval of Government, on its satisfaction that the appointee possessed requisite qualification, the

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Government Official in his inspection report also found him to be holding the required qualification and he was retained in service for a long time, he could not be dismissed on the Government's direction that he did not possess the requisite diploma especially when other persons like him were in Government employment. 76 Amounts were being sanctioned by the Government from time to time to a voluntary organisation set up to uplift tribal people. Later the Government stopped sanctioning the amounts without giving an opportunity to the organisation to place its case for continuance of funds. It was held the act ion of the Government was hit by the principle of estoppel. It is submitted that the decision cannot be regarded as correct as there can be no promise to continue assistance; 77 hence the withdrawal of benefit of concessional rate of tax available to tourist buses cannot be assailed on the ground of promissory estoppel. 78 The representation made by the Govt. must be definite and clear, and not tentative or uncertain, otherwise it would not attract the doctrine of promissory estoppel nor confer any rights and impose any duties on the parties. 79 Where permission to sell property has been granted, the cancellation of permission subsequently is not permissible by reason of estoppel. 80 After a lapse of thirteen years of continuous acknowledgement of the petitioner as the Secretary of the Co-operative Bank and dealing with him as such during that long period, it is no longer open to the Registrar of Co-operative Societies or the Bank to question the validity of his original appointment as Secretary. 81 In the circular pertaining to the appointment of Educational Panchayat Officers law degree was prescribed as qualification for the post. Petitioner, though not a law graduate, was still appointed and confirmed. It was held that estoppel operated against the Government and the petitioner could not be reverted as clerk. 82 Where the licensees, securing stocks and selling them as per direction of Government under Section 3 of the Essential Supplies (Temporary Powers) Act, 1946, and Madras Food Procurement Order (1946), became entitled to fixed Commission, they were estopped from contending that portion of the order asking them to make over the price was invalid. 83 Where requisite fee has been paid on the basis of valuation made by the Government, it cannot afterwards challenge the valuation. 84 Where on the basis of the representation made by the State Government that the lessee will be provided with alternate site and will enjoy the property for 90 years, the lessee surrendered the legal right created in his favour under the first lease deed and a valid lease-deed in respect of the alternate site was also executed and registered in his favour and thus the lessee changed his position to his prejudice relying on representation, the lessee is entitled on the basis of promissory estoppel to claim possession of the alternative site from the State Government. 85 The improvement Trust by passing resolution made a promise to a Co-operative Housing Society to release portion of land included in one of its schemes, for developing a housing colony for is members. The society in pursuance of that promise, went ahead with its plans and got a sale deed of land in dispute in its favour from the original holder of land. It was held that the Improvement Trust was estopped from going back on its promise and revoke its earlier sanction accorded by the resolution. 86 Where a company was induced to make part payment of consideration towards the sale price of land, on the basis of correspondence with different Govt. departments, to the effect that the said land was resolved to be industrial area and be handed over to the company, and receipt of part payment was duly acknowledged from time to time by the officers and the functionaries of the Improvement Trust, and in fact user of land was shown as industrial in the master plan also, the Govt. could not go back from its promise and consequently send notice for taking coercive act ion against the company alleging encroachment over the land in question. 87 Where there was a scheme to give cash subsidy for setting up an industry and a co-operative society obtained a part of subsidy and expanded its industry by investing a huge amount, it was held that the principle of promissory estoppel applied and the authorities were directed to pay the balance. 88 Where the Govt. of Orissa tried to revise the terms of contract entered into with a party for establishing an industry to its detriment retrospectively, it was held that promissory estoppel would be applicable against the Govt. and if any thing required permission of the Central Govt. which the State Govt. had failed do, this fact should have been considered earlier. The State Govt. cannot take advantage of its

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own omission. 89 The Govt. was held to be bound by its own earlier notice in respect of quantum of land to be acquired and could not challenge the same. 90 Where the petitioner applicants were fully conscious of the fact that the costs of the flats allotted by the development authority was subject to change as per prevailing rates at the relevant time, the plea that costs indicated in the brochure were final and binding owing to principle of promissory estoppel, was not tenable. 91 Where at no point of time any promise was made to the petitioner that the timber would be supplied at the rate which was prevalent at the time of passing the sanction order, the principle of estoppel was not attracted and the respondents could supply the timber at the rate which is lawfully chargeable. 92 Where the Govt. reduced the assured price revision period of the supply of timber, it was held that it would not amount to any material breach of promise attracting promissory estoppel. 93 Govt. framed a scheme providing for subsidy equal to the difference between retention price and maximum retail price to the manufacturers of fertilizer. It also contained a formula for calculating the retention price and provided for a post-tax return of 12%. However, the manufacturers gave an undertaking voluntarily that they would abide by the decision of the Fertiliser InterCoordination (FIC) Committee on all matters relating to determination of the retention price treating the same as final and binding. The manufacturers contended that the Govt. was estopped from modifying the Scheme so as to deny them the assured 12%, post-tax returns. Rejecting the same the Supreme Court held that it were rather the manufacturers who attracted estoppel due to their undertaking. 94 The State Govt. initially offered to provide to the encroachers of lands (here milkmen) alternative sites in certain villages for price but finding that those villages themselves were subjected to encroachment and litigation, it resiled from the offer. However, no notification to that effect was issued by the Govt. It was held that the encroachers could not invoke the doctrine of estoppel to compel the Govt. to adhere to its earlier plan of rehabilitation. 95 Minister's statement on the floor of the House does not amount to a promise or representation by the Government. 96 Where under a Government policy to transfer a sugar mill to Corporate Sector, possession of the said mill was handed over to the petitioner who failed to make payment of the sale-price hence the sale consideration was converted into loan which too he defaulted to pay, recovery proceedings were not barred on the ground that the letter of intent and the land was not transferred in his favour. 97 Where the scheme was prepared by the Govt. under the threat of contempt proceedings initiated before the High Court, although SLP had already been filed against the impugned judgment of the High Court, but the same could not be listed. Thereafter, the Supreme Court granted leave and the stayed the operation of the judgment of the High Court. In these circumstances, the government was not debarred from questioning the correctness of the impugned judgment merely because it had formulated the scheme. 98 On application for compensation to the Gram Panchayat by the lessee of the coconut trees as the latter had got cut the coconut leaves as they were falling on the street light thus causing him a heavy loss, the Gram Panchayat resolved to recommend as compensation a certain yearly amount for the lease period to be adjusted against his dues which was done. After the fresh election, the then Gram Panchayat brought a suit against the lessee for the recovery of the dues. It was held that the resolution of the Gram Panchayat for paying compensation was only a recommendation to competent authorities and not a promise, hence the Gram Panchayat could not be estopped from realising the dues from lessee. 99 Where the State Government issued G.Os. to grant concessional rates of supply of electricity for new industries for five years after commencement of production subject to a condition that it would not apply from the year, a new industry starts earning profits before expiry of five years, the Electricity Board could withdraw the exemption granted by way of concessional tariff in public interest and promissory estoppel would not operate against the State Govt. Board. 1 When there was no previous agreement between the Government and the company for acquisition of land for the company and no consent by the Government after previous enquiry was given to the company in this respect, the company would not be entitled to invoke promissory estoppel against the Government on refusal by it to acquire the land, despite it having deposited certain amount with the Government. 2 A provisional or ad hoc decision confers 3 no right and its revision does not violate the principle of promissory estoppel or legitimate expectation. Where the minimum wages of unskilled labourers were enhanced by the State Government by a Notification and it had to be paid at higher by rate the contractor of the State Housing Board also, there would be no justification to deny proportionate compensation to the contractor on the basis of his endorsement while seeking the extension of time for completion of the work to the effect that he would not claim any compensation on

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account of escalation and the order of the Board while extending time with stipulation that no compensation on account of escalation would be paid, would not debar the contractor from claiming higher amount of wages which had been made liable to be paid because of the statutory notification of the Government. 4 In cases where there has been a substantial failure on the part an industrial unit to obtain the benefit of exemption in tariff, owing to acts of omission and commission on its part, no such benefit can be given. 5 Where the petitioner was recorded tenure holder of the land in question and he sought permission from the Development Authority for raising boundary wall on his land which was granted with condition that he would not claim compensation for the construction raised after acquisition of land, it was held that such undertaking would not constitute estoppel or waiver of right of the petitioner to challenge the acquisition proceedings. 6 A society entered into agreement of sale of the disputed land with the original khatedars . Therefore the Urban Development Authority sought to acquire that land for planned development followed by the government seeking acquisition under the Land Acquisition Act . An out of Court agreement was entered between the society and the government to regularise the land on the society paying the conversion charges. Thereafter, the government could not intermeddle or do any unauthorised activity on the said land.7 Where in a land acquisition case, the compensation was not paid to the landowners and Development Authority passed a resolution to restore the land to its owners, the authorities later on could refuse to restore the land to landowners on the ground that the law did not allow them to do so, especially when the acquisition process of the land concerned could not be said to have reached its absolute finality. 8 Where the mining lease stood renewed under the respective provisions of law concerned for twenty years of which final approval was granted by the Central Government after two years of the State Government having sent the proposal for renewal in question, during the period of which matter was scrutinised and examined at different levels by the competent committee, the State Government could not compel the lessee to close the mines under the lease. 9 Where the Nursing Homes, Clinics, Dispensaries, Hospitals, Laboratories etc. within the city were being run in residential apartments with the permission of the Municipal Corporation under the relevant Act and Rules, the corporation could not be allowed to take a different stand altogether that running of these establishments amounted to change of user by them without permission for the same. 10 Where admittedly the petitioner's cinema hall was constructed and issued licence prior to the issuance of the impugned G.O. providing for reduction of the grant-in-aid regarding entertainment tax, the government was estopped from enforcing it retrospectively on the petitioner's cinema hall. 11 Where the claimants had themselves applied and got appointed as trustees of the temple under Sections 63(b) of the T.N. Hindu Religions and Charitable Endowments Act (22 of 1959), they were estopped from raising a contention that the provisions of the said Act had no application to the temple concerned. 12 Where a bid of the petitioner in an auction of coal was accepted by the government and he deposited a huge amount by cheque in full payment of the accepted bid and the cheque was encashed by it, it was held that the government could not cancel the auction and the principle of promissory estoppel would be attracted as they had act ed upon the concluded contract. 13 A finance company purchased the Kisan Vikas Patras and Govt. refused to pay interest on them on maturity on the ground that the Govt. had banned to issue such Patras to companies. The Court observed that it is not the case the company knowingly acquired them in contravention of the Rules or in connivance with the staff and held that a case of deficiency in service was made out and the Govt. was estopped from going back on their promise to pay interest. 14 In M.P. Sugar Mills v. State of U.P. , 15 B HAGWATI , J. reviewed all the English cases on the subject, particularly relating to the position that promissory estoppel cannot be used as a cause of action and it only affords a defence. The learned Judge said that it is, however, necessary to make it clear that though the doctrine has been called in various judgments and text-books as promissory estoppel, and it has been variously described as "equitable estoppel", ' quasi estoppel' and 'new estoppel'; it is not really based upon the principle of estoppel, but it is a doctrine evolved by equity in order to prevent injustice where a promise made by a person knowing that it would be acted on by the person to whom it is made and in fact it is so act ed on and it is inequitable to allow the party making the promise to go back upon it. 16 The doctrine of promissory estoppel need not, therefore, be confined to the limitations of estoppel in the strict sense of the word. Even L ORD D ENNING recognised in Crabb v. Arun District Council , 17 that "there are estoppels and estoppels. Some do give rise to a cause of action.

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Some do not." He added that promissory estoppel often gives rise to a cause of act ion. Stating the effect of estoppel on the position of the true owner, his Lordship observed that the owner's title to the property, be it land or goods, has been held to be limited or extinguished, and new rights and interests have been created therein. And this operates by reason of his conduct--What he has led the other believe--Even though he never intended it. "New rights and interests, so crated by estoppel, in or over land, will be protected by the Courts and in this ways give rise to a cause of action. A declaration of the right of way against the District Council was granted in this case. B HAGWATI J. referred to the treatise by S PENCER B OWER AND T URNER on the L AW R ELATING TO E STOPPEL BY R EPRESENTATION who have explained this decision on the basis that it is an instance of the application of the doctrine of estoppel by encouragement or acquiescence or what has now come to be known as proprietary estoppel which forms an exception to the rule that estoppel cannot found a cause of act ion. J USTICE B HAGWATI cited, 18 the 13th report of the Law Commission of India where it is recommended that, by way of an exception to S. 25 of the Contract Act, a promise, express or implied, which the promisor knows or reasonably should know, will be relied upon by the promisee, should be enforceable, if the promisee has altered his position to his detriment in reliance on the promise. The learned Judge added : "We do not see any valid reason why promissory estoppel should not be allowed to found a cause of act ion where, in order to satisfy the equity, it is necessary to do so. 19 The A.P. Housing Board formulated a scheme for allotment of plots to its employees. More than 103 employees/allottees parted with their money and paid full amount required by the Board. Registration of plots in their favour got delayed and subsequently there was hike in the prices of plots consequently the Board cancelled the allotment. It was held that the action of the Board was arbitrary and hit by the doctrine of promissory estoppel. 20 There was inordinate delay on the part of the Department in supplying design to contractor. The Department persuaded the contractor to carry on with the work on extension having been granted and payment of labour escalation. The contractor, having completed the work with the new design within the extended time and received payments could not be asked to refund labour escalation cost as the Department was stopped from changing its position. 21 In the absence of any notification in this respect, there is no promissory estoppel regarding the claim for exemption from building tax (here in favour of hotels or motels, classified and meant for promoting tourism). 22 30 K.M.L. Narasimhan, Larsen & Toubro Ltd. v. Union of India, AIR 1994 Mad 82 (paras 34 and 35). See also Enkon Private Ltd. v. Bijoli Studio Pvt. Ltd., AIR 2008 (NOC) 179(Cal) ; Bharat Sanchar Nigam Limited v. BPL Mobile Cellular Limited, (2008) 13 SCC 597, 620 (para 47). 31 B. Sanjeeva Reddy v. Govt. of A.P., 1996 AIHC 2426(AP) . 32 Bannari Amman Sugars Ltd. v. CTO, (2005) 1 SCC 625, 638 (para 21), relied on in State of Arunachal Pradesh v. Nezone Law House, Assam, (2008) 5 SCC 609, 617 (para 10) : AIR 2008 SC 2048. 33 Union of India v. Rizwan International, AIR 1993 Mad 336 (para 15). 34 Union of India v. Indo-Afghan Agencies Ltd., (1968) 2 SCR 366 : AIR 1968 SC 718. See also Gujarat Ambuja Cements Ltd. v. Union of India, AIR 1994 Guj 104 (para 25); Rizwan International v. Union of India, AIR 1994 Mad 112 (paras 18 and 20). 35 Century Spg. & Mfg. Co. v. Ulhasnagar Municipality, AIR 1971 SC 1021. See also Anand Enterprises v. State of H.P., AIR 2009 (NOC) 164(HP) . 36 K.M.L. Narasimhan, Larsen & Toubro Ltd. v. Union of India, AIR 1994 Mad 82 (para 13); Jeet Ram v. State of Haryana, AIR 1980 SC 1285 : (1980) 3 SCR 689 not followed in view of M.P. Sugar Mills v. State of U.P., AIR 1979 SC 621 : 1979 All LJ 368 : 1979 2 SCR 641. 37 Southern Petrochemical Industries Co. Ltd. v. Electricity Inspector & ETIO, (2007) 5 SCC 447, 495 (para 121) : AIR 2007 SC 1884; relied on in LML Ltd. v. State of U.P., (2008) 3 SCC 128, 143 (para 41) : AIR 2008 SC 1032. 38 Southern Petrochemical Industries Co. Ltd. v. Electricity Inspector & ETIO, (2007) 5 SCC 447, 495 (para 122) : AIR 2007 SC 1884.

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39 Southern Petrochemical Industries Co. Ltd. v. Electricity Inspector & ETIO, (2007) 5 SCC 447, 495 (para 118) : AIR 2007 SC 1884. 40 AIR 1968 SC 718 (para 10). 41 Union of India v. Anglo Afgan Agencies, AIR 1968 SC 718 (para 10), referred in Sharma Transport v. Govt. of A.P., AIR 2002 SC 322 (para 21) : (2002) 2 SCC 188. 42 Express News Papers Pvt. Ltd. v. Union of India, AIR 1986 SC 872; followed in S. Shanmughanathan v. Executive Engineer, Tamil Nadu Housing Board, (1991) 1 MLJ 339. See also Tulsi v. State of Rajasthan, 1996 AIHC 1824 (para 37) (Raj); State of Manipur v. All Manipur Petroleum Prducts Transporters Association, AIR 2007 (NOC) 1791(Gau) . 43 Bhim Singh v. State of Haryana, AIR 1980 SC 768. 44 Cera Manjula v. Director of School Education, 1997 AIHC 988, at pp. 992 and 993 (AP), dissenting from WP No. 11636/96, Dt. 15-7-96 (AP). 45 Assistant Commissioner of Commercial Tax, Dharwar v. Dharmendra Trading Co., AIR 1988 SC 1247; Sri Jagannath Roller Flour Mills v. State, AIR 1986 Ori 163; Pournami Oil Mills v. State of Kerala, AIR 1987 SC 590; MRF Ltd., Kottayam v. Asstt. Commissioner (Assessment) Sales Tax, (2006) 8 SCC 702, 721 (para 35) : (2006) 12 JT 244; Bellary Steel & Alloys Limited v. State of Karnataka, AIR 2008 (NOC) 724(Kar) : 2008 (1) AIR Ker R 456. 46 Tata Iron and Steel Co. Ltd. v. State of Jharkhand, AIR 2005 SC 2871, 2884 (para 61) : (2005) 5 SCC 492. 47 Shakti Tubes Ltd. v. State of Bihar (FB), AIR 1994 Pat 162 (para 12). 48 R.K. Ramarao v. State of A.P., AIR 1987 SC 1467. 49 Belapur Co. Ltd. v. State, ILR 1971 Bom 89 : 71 Bom LR 856. 50 R.C. Sood & Co. v. Union of India, AIR 1971 Del 170. Also see Bejgam Veeranna Venkata Narsimloo v. State of A.P., AIR 1998 SC 542; State of A.P. v. Commissioner of Land Reforms & Urban Land Ceiling, 1999 AIHC 3417 51 Vinod Kumar Mittal v. Union of India, AIR 1991 All 1. 52 Collector of Bombay v. Bombay Corpn., AIR 1951 SC 469. 53 Aeronautics Employees Co-operative Society Ltd. v. State of A.P., AIR 1990 AP 331. 54 Anokh Singh v. State of Punjab, AIR 1994 P&H 157 (paras 9 and 12). See also Om Prakash v. State of Rajasthan, 1998 AIHC 2715 (para 5) (Raj); Dharmichand Chajod & Sons v. Agricultural Produce Marketing Committee, 1998 AIHC 2638 (paras 11-13) (Kant). 55 Garments International Pvt. Ltd. v. Union of India, AIR 1991 Kant 52. 56 Sukhdev Singh v. Union of India, 1989 Cr LJ 1340(DB) . 57 Krishan Gopal Dixit v. M.P. Road Transport Corp., AIR 1986 MP 103. See also Davinder Singh v. State, AIR 1995 J&K 77 (paras 15 and 16), relying on International Airport Authority, AIR 1979 SC 1628 (at pp. 1636 and 1637); Kailash Chand Poddar v. State of Rajasthan, AIR 2008 (NOC) 1497(Raj) ; Eros City Developers Private Ltd. v. State of Haryana, AIR 2008 (NOC) 1565(P&H) (DB). 58 Rose Educational, Scientific and Cultural Society (Regd.) v. Union of India, AIR 1990 Del 75. 59 Ganpat Lal v. State, AIR 1999 Raj 225 (paras 11 and 14). 60 A.K. Thangadurai v. D.F.O., Madurai, AIR 1985 Mad 104, Similarly, the extension of lease of fishery was not allowed to be withdrawn after the gurantee had acted upon it. Ikop Laidakol Fishing Corpn. v. State of Manipur, AIR 1982 Gau 14. 61 Dhampur Sugar Mills Ltd. v. Union of India, AIR 1985 Del 344. 62 Hitech Electrothermics and Hydropower Ltd. v. State of Kerala, AIR 2003 SC 2091 (para 5) : (2003) 2 SCC 716, reversing W.A. No. 820 of 2001, dated 6.4.2001 (Ker). 63 See Union of India v. Indo-Afghan Agencies, AIR 1968 SC 718. 64 M.P. Sugar Mills v. State of U.P., (1979) 2 SCR 641 : AIR 1979 SC 621 : 1979 All LJ 368. The same result followed where there was incentive scheme for industry in backward areas. Tapti Oil Industries v. State of Maharashtra, AIR

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1984 Bom 161(FB) ; Union of India v. J.K. Industries, AIR 1991 Raj 45; Modi Alkalies v. State of Rajasthan, AIR 1992 Raj 51; R.K. Kawatra v. D.S.I.D.C., AIR 1992 Delhi 28; Union of India v. Anglo Afghan Agencies, AIR 1968 SC 718; and Century Spinning & Mfg. Co. v. Ulhasnagar Municipality, AIR 1971 SC 1021 followed; Vairavikulam Lime Products Pvt. Ltd. v. Govt. of India, AIR 2006 Mad 353, 368 [para 53(1)]; Vividh Marbles (P) Ltd. v. Commercial Tax Officer, (2007) 3 SCC 580, 585 (para 14) : AIR 2007 SC 861; Apple Valley Resort Private Ltd. v. State of H.P., AIR 2007 (NOC) 2048(HP) ; Tata Steel Ltd., East Singhbhum & etc. etc. v. State of Jharkhand, AIR 2007 (NOC) 1080(Jhar) ; Ganpati Shopping Mall Pvt. Ltd. v. State of Haryana, AIR 2007 (NOC) 793(P&H) ; U.P. Power Corporation Ltd. v. Sant Steels & Alloys (P) Ltd., (2008) 2 SCC 777, 801 (para 30) : AIR 2008 SC 693; Adaidya Solutions Pvt. Ltd v. The RIICO, AIR 2008 (NOC) 500(Raj) ; Parenteral Drugs India Ltd. v. State of H.P., AIR 2008 (NOC) 380(HP) ; Chandrika Prasad Verma v. State of U.P., AIR 2009 (NOC) 316(All) : 2008(6) ALJ 332. Retrospective withdrawal of exemption, estoppel, Alex P. Chacko v. Varghese Mathew, AIR 2007 (NOC) 1068(Ker) . 65 Vairavikulam Lime Products Pvt. Ltd. v. Govt. of India, AIR 2006 Mad 353, 368 [para 53(2)]. 66 Sadhna Agarwal v. Indore Devp. Auth., AIR 1986 MP 88. 67 Union of India v. Godfrey Philips India Ltd., AIR 1986 SC 806. 68 Varalakshmi Chemind Pvt. Ltd. v. Commissioner of Prohibition, Madras (1933) 1 MLJ 205. 69 Syed Saulat Hussain v. Syed Illamuddin, AIR 1987 SC 2213. 70 S.K.G. Sugar Ltd. v. State of Bihar, AIR 1975 Pat 123. 71 H.H. Builders (P) Ltd. v. Corporation of the City of Bangalore, AIR 1990 Kant 56. 72 Commissioner of Customs v. Indian Oil Corporation, AIR 2004 SC 2799 (para 14) : (2004) 3 SCC 488. 73 Union of India v. Anglo Afghan Agencies, AIR 1968 SC 718. Even though case not falling within rule of estoppel, party acting on representation of Govt., Govt. bound, Ashok Kumar Maheshwari (Dr.) v. State of U.P., AIR 1998 SC 966; Dominion of India v. Ram Rakha Mall, AIR 1957 Punj 141. See also State of Orissa v. Mangalam Timber Products Ltd., (2004) 1 SCC 139 (para 4) : AIR 2004 SC 297; I.T.C. Limited v. State of U.P., AIR 2009 (NOC) 100(All) . 74 Kumari Akhtar v. Principal, Os. M. College, AIR 1959 AP 493. 75 Chowgula & Co. v. Union of India, AIR 1972 Goa 33. See also Venus Cement Ltd. v. U.P. Power Corporation Ltd., AIR 2004 Uttaranchal 26, 29 (para 12) : 2004 (1) UC 212; Bina Power Supply Co. Ltd. v. State of M.P., AIR 2004 MP 68, 69, 72, 73 paras 12, 14 & 16 : 2004 (1) Jab LJ 310. 76 M.K. Raghavan v. Jharsuguda Municipality, AIR 1973 Ori 186. 77 Social Work & Research Centre, Banswara v. State of Rajasthan, AIR 1987 Raj 26. 78 Sharma Transport v. Govt. of A.P., AIR 2002 SC 322 (para 23) : (2002) 2 SCC 188. 79 Kimti Lal Rahi v. Union of India, AIR 1993 Del 211 (paras 21 and 22). 80 Ramadebi v. Union of India, AIR 1988 Cal 38. 81 Narayan Rathi v. Registrar, Co-operative Societies, ILR 1970 Cut 437. 82 Badri Prashad Pandey v. State, ILR 1973 HP 171. 83 State of Madras v. J.R.M. Contractors Co., AIR 1959 AP 352. 84 Abdul Wahid v. Union of India, AIR 1982 Del 291. 85 Hadibandhu v. Kaushalaya Devi, AIR 1976 Orissa 120. See also Bharat Aluminium Company Limited v. State of Chhattisgarh, AIR 2009 (NOC) 2100(Chh) . 86 Laghu Udyog Karmachary Co-op. Housing Society v. State of M.P., AIR 1975 MP 93. See also Akhara Brahm Buta v. State of Punjab, AIR 1993 SC 366 (para 3). 87 National Engineering Industries Ltd., Jaipur v. State of Rajasthan, AIR 1998 Raj 229 (paras 15 and 16). 88 Sabarkantha J.R. Utpadakoni Co-op Spinning Mills Ltd. v. General Manager, AIR 1992 Guj 89; M.P. Sugar Mills v. State of U.P., AIR 1979 SC 621 and Gujaral State Financial Corpon. v. Lotus Hotels Pvt. Ltd., AIR 1983 SC 848 followed; See also Garments International Pvt. Ltd. v. Union of India, AIR 1991 Kant 52 (Export assistance schemeassistance can not be withdrawn). See also Old Village Industries Ltd. v. Union of India, AIR 1993 Del 321; Selvi

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Travels v. Union of India, AIR 1993 Mad 216 (para 28); Union of India v. Rizwan International, AIR 1993 Mad 336 (para 16); Jai Beverages (P) Ltd. v. State of J&K, (2006) 5 SCC 772, 787-88 (paras 34-36) : (2006) 6 Scale 128; Atul Products Ltd. v. State of Gujarat, AIR 2007 (NOC) 662(Guj) ; Bhupindra Gram Udyog Samiti (Regd.) v. State of Punjab, AIR 2008 (NOC) 944(P&H) ; Gitesh Pipes Pvt. Ltd. v. State of Maharashtra, AIR 2008 (NOC) 1047(Bom) : 2008 (1) AIR Bom R 517. 89 State of Orissa v. Mangalam Timber Products Ltd., (2004) 1 SCC 139 (para 4) : AIR 2004 SC 297. Govt. demanding purchase tax retrospectively for period exempted, estopped, State of Punjab v. Nestle India Ltd., AIR 2004 SC 4559 (paras 11, 17, 47 and 48), relied on in Mahabir Vegatable Oils (P) Ltd. v. State of Haryana, (2006) 3 SCC 620, 629 (para 25). 90 Tandon Brothers v. State of W.B., AIR 2001 SC 1866 (para 35). 91 DDA Self Finance Flats Owners Society v. U.O.I., AIR 2001 Del 39 (paras 14 and 15). 92 Ghulam Mohammad Wani v. State of J.&K., AIR 1999 J&K 74 (para 10). No promise held out by Govt., no estoppel, Becharbhai V. Patel v. State of Gujarat, AIR 1998 Guj 1 and Dayalbagh Educational Institute, Agra v. State of U.P., AIR 2001 All 290 (para 29). Also see C.B.S.E. v. P. Sunil Kumar, (1998) 5 SCC 377; H.S. Industrial Development Corporation Ltd. v. Inderjeet Sawhney, AIR 1996 SC 2244 (paras 12 and 15). Govt. granting concession in payment of royalty for five years to a company, subject to review after five years, extendable to ten years, withdrawal after five years, no promise, no estoppel, Andhra Pradesh Rayons Ltd. v. Govt. of A.P., AIR 1997 AP 23. See also Santosh Bharti v. State of M.P., AIR 2004 MP 135, 137 (para 9) ; S. Spinning Mills (P) Ltd. v. Superintending Engineer Periyar Electricity System, AIR 2002 Mad 159, 166 : 2002 (1) Mad LJ 285 relying on, Andhra Steel Corpn. Ltd. v. A.P.S.E.B., AIR 1991 SC 1456 and Pawan Alloys and Casting Pvt. Ltd., Meerut v. U.P.S.E.B., AIR 1997 SC 3910 : 1997 All LJ 2202; Dayalbagh Educational Institute v. State of U.P, 2002 AIHC 28, 37 (para 29) (All); Deepak Kumar v. Bihar State Credit and Investment, AIR 2008 Pat 150, 152 (para 9); Jindal Drugs Ltd., Chandausi v. State of U.P., AIR 2009 (NOC) 1729(All) : 2009 (3) ALJ 289. 93 Vidarbha Veneer Industries Ltd. v. State of Maharashtra, AIR 1994 Bom 155. 94 Duncan Industries Ltd. v. U.O.I., (2006) 3 SCC 129, 140 (para 30) : AIR 2006 SC 3609. 95 Milk Producers Association, Orissa v. State of Orissa, (2006) 3 SCC 229, 241 (para 23) : AIR 2006 SC 3508, relied in Omfed Bazar Sangha v. State of Orissa, AIR 2009 (NOC) 1517(Ori) . 96 Union of India v. Ganesh Rice Mills, (1998) 9 SCC 630. See also State of Karnataka v. K.K. Mohandas, (2007) 6 SCC 484, 494 (paras 23 and 24) : AIR 2007 SC 2917; Express Newspapers (P) Ltd. v. U.O.I., (1986) 1 SCC 133; Pine Chamicals Ltd. v. Assembly Authority, (1992) 2 SCC 683. 97 Northland Sugar Complex Ltd. v. P.S.I.D. Corpn. Ltd., AIR 1998 P&H 240 (paras 35 and 36). 98 State of H.P. v. Padam Dev, AIR 2002 SC 2477 (para 13) : (2002) 4 SCC 510. 99 Perabathula Subbarayadu v. Executive Officer, Gram Panchayat , Mori , 2002 AIHC 264, 266 (para 10) (AP). 1 S. Spinning Mills (P) Ltd. v. Superintending Engineer, Periyar Electricity System, AIR 2002 Mad 159 : 2002 (1) Mad LJ 285. 2 Indian Oil Corporation Ltd. v. District Collector, 2003 AIHC 1903, 1912 (para 18) (AP). See also Ansal Properties and Infrastructure Ltd. v. State of Haryana, AIR 2008 (NOC) 2045(P&H) . 3 Duncans Industries Ltd. v. Union of India, AIR 2004 All 144, 159 (para 57) : 2004 All LJ 1177 : 2004 (1) EFR 138. 4 Suryamani Nayak v. Orissa State of Housing Board, AIR 2005 Ori 26, 29 (para 8). 5 A.P. Steel Re-Rolling Mill Ltd. v. State of Kerala, AIR 2007 SC 797, 805 (para 35) : (2007) 2 SCC 725. See also Ashok Kumar Sinha v. Bihar State Financial Corporation, AIR 2009 Jhar 42, 46-47 (paras 13-16). 6 Sudhir Chandra Agarwala v. State of U.P., AIR 2008 (NOC) 2063(All) : 2008 (4) ALJ 315(DB) . 7 Indu Bala Jain v. State of Rajasthan, 2002 AIHC 3537, 3541 (para 25) (Raj). 8 R. Hanumaiah v. Banglore Development Authority, 2002 AIHC 197, 205 (para 11) (Kant). 9 Uma Paliwal v. Union of India, AIR 2002 Raj 348, 361; relying on Pradeep Krishan v. Union of India, AIR 1996 SC 2040 : 2002 (2) Raj LR 296. 10 Sanjay G. Khemuka v. State of Maharashtra, AIR 2004 Bom 245, 264 (para 47) : 2004 (3) All MR 687.

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11 Munisha Palace, 'Karbai' v. State of U.P., 2004 AIHC 593, 594 (para 9). The Court relied on Union of India v. Indo Afghan Agencies Ltd., AIR 1968 SC 718 and Century Spinning & Manufacturing Co. Ltd. v. Ulhasnagar Municipal Corpn., AIR 1971 SC 1021. 12 Joint Commissioner, H.R. & C.E. Administration Dept. v. Jayaraman, AIR 2006 SC 104, 109 (para 10). 13 P.R. Transport Agency v. Union of India, AIR 2006 All 23, 25 (para 25). See also Exotic Granite Exports v. Govt. of A.P., AIR 2008 (NOC) 2109(AP) . 14 Union of India v. Kashmir Finance Ltd., AIR 2007 J&K 4, 8-9 (paras 19-21). 15 (1979) 2 SCC 409 at 426 : AIR 1979 SC 621. 16 Relying upon similar statements in Municipals Corpn. of Bombay v. Secretary of State, (1905) 29 Bom 580 at p. 607 : 7 Bom LR 27. Commercial contracts already concluded, remedies have to be provided have to be for their breaches under the law of contract and not that of estoppel, Trident Tubes Ltd. v. Govt. of Bihar, AIR 1995 Pat 50. 17 (1975) 3 All ER 165 : (1975) 3 WLR 847. 18 (1979) 2 SCC 409 at p. 430 : AIR 1979 SC 621. 19 The Court also cited Robertson v. Minister of Pensions and Evenden v. Guildfold City Assn. Football Club Ltd., (1949) 1 KB 227 : (1948) 2 All ER 767 and (1975) 3 All ER 269, where it is observed that promissory estoppel is no longer the same passive equity. Vinjay Cements Ltd. v. Assam, AIR 1997 Gau 34, the Government restrained from resiling from an announced scheme. The Government was required to give eligibility certificate to an entrepreneur who acting on the basis of the scheme prepared to establish an industry in the most backward area and obtained final licences, and clearance from Pollution Board and placed firm orders upon suppliers. Arguments were built upon the following authorities : M.P. Sugar Mills v. State of U.P., AIR 1979 SC 621 : (1979) 2 SCC 409; Union of India v. Godfrey Philips (India) Ltd., AIR 1986 SC 806 : (1985) 4 SCC 369; Bakul Oil Industries v. Gujarat, (1987) 1 SCC 31 : AIR 1987 SC 142; Pine Chemicals Ltd. v. Assessing Authority, (1992) 2 SCC 683 : 1992 AIR SCW 702. 20 Housing Board Employees, IV Phase, Plot Allottees Welfare Association v. State of A.P., AIR 2009 (NOC) 1263(AP) . See also Lakshminarayana Industries v. Karnataka State Financial Corporation, AIR 2009 Kant 65. 21 Ram Barai Singh & Co. v. State of Bihar, AIR 2009 (NOC) 1526(Pat) . 22 Mayflower Hotels (P) Ltd. v. State of Kerala, AIR 2007 (NOC) 827(Ker) (DB).

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Ratanlal & Dhirajlal: Law of Evidence, Updated 23rd Edition/THE INDIAN EVIDENCE ACT (ACT 1 OF 1872)/PART III PRODUCTION AND EFFECT OF EVIDENCE/CHAPTER VIII ESTOPPEL/S. 115.

50. NO ESTOPPEL It was observed by K AILASAM J.: 27)   "The plea of promissory estoppel is not available against the exercise of the legislative functions of the State. 25)   The doctrine cannot be invoked for preventing the Govt. from discharging its functions under the law. 14)   When the officer of the Govt. act s outside the scope of his authority, the plea of promissory estoppel is not available. The doctrine of ultra vires will come into operation and the Govt. cannot be held bound by the unauthorised acts of its officers. 11)   When the officer act s within the scope of its authority under a scheme and enters into an agreement and makes a representation and a person acting on that representation puts himself in a disadvantageous position, the court is entitled to require the officer to act according to the scheme and the agreement or representation. The officer cannot arbitrarily act on his mere whim and ignore his promise on some undefined and undisclosed ground of necessity or change the conditions to the prejudice of the person who had act ed upon such representation and put himself in a disadvantageous position. 6)   The officer would be justified in changing the terms of the agreement to the prejudice of the other on special consideration, such as difficult foreifn exchange position or other matters which have a bearing on general interest of the State." 23 Referring to Jit Ram Shiv Kumar v. State of Haryana 24 and M.P. Sugar Mills v. State of U.P. 25 , the Supreme Court observed: "Of course, we must make it clear that, and that is also laid down in M.P. Sugar Mills' case, that there can be no promissory estoppel against the Legislature in the exercise of its legislative functions nor can the Government or public authority be debarred by promissory estoppel from enforcing a statutory prohibition. It is equally true that promissory estoppel cannot be used to compel the Government or a authority to carry out a representation or promise which is contrary to law or which was outside the authority or power of the officer of Government, or the public authority to make. We may also point out that the doctrine of promissory estoppel being an equitable doctrine, it must yield when the equity so requires, if it can be shown by the Government or public authority that having regard to the facts as they transpired, it would be inequitable to hold the Government and public authority to the promise or representation made by it, the court would not raise an equity in favour of the person to whom the promise or representation is made and enforce the promise or representation against the Government or public authority. The doctrine of promissory estoppel would be displaced in such a case, because on the facts, equity would not require that the Government or public authority should be held bound by the promise or representation made by it". 26 The Legislature can never be prevented from exercising its legislative functions by resorting to promissory estoppel. 27 There cannot be any estoppel against the Government in exercise of its sovereign legislative, executive functions, where the Government finds necessary to review its policy. 28 It does not apply to the Government while acting in sovereign capacity unless it is necessary to prevent fraud or manifest injustice. 29 The doctrine of promissory estoppel cannot be invoked for preventing Government, from act ing in discharge of its duty under law. The order of the Government directing levy of control in pursuance of resolution of Municipality under the law could not be challenged. 30 It can also not be invoked to compel an authority to do something which is not allowed by law or is prohibited by it. 31 Government is not estopped from claiming exemption from holding inquiry and giving opportunity under Art. 311(2) of the Constitution, even after the inquiry. 32 Estoppel cannot be claimed on the basis of a contract which does not satisfy the requirements of Art. 299. 33

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The power of Government to make rules under Section 12 of the Kerala Education Act, is not affected by agreement. The agreement cannot give rise to plea of estoppel against the Government. 34 Eventhough, sales of country liquor were exempted from sales tax at the time of auction of liquor licences, the Government is not estopped from subjecting sales to Sales Tax later. 35 The Electricity Board after negotiations with party agreed to supply electricity at concessional rate. Later the agreement was annulled by an amending Act and uniform tariff imposed. It was held the Electricity Board was not estopped. 36 Where the tenants of the Bombay Port Trust made representation, the Port Trust by its estate manager stated that on deposit of certain amount they would be allotted flats after reconstruction of the building. It was held that no promissory estoppel would arise though executive necessity was not established. 37 Prior to the amendment of the Army Rules re-employment of the retired or released army officers was not permissible. After the amendment they could be recruited by re-employment to the Post of Assistant Commandant. It was held that the action of the authorities calling for the option of such officers for absorption would not operate as estoppel or confer any right to claim absorption. 38 The Government can, for example, change export policy and thereby upset many a contractual commitments. 39 The Madras Education Rules and the Text Book Committee Rules did not hold out any representation or even an assurance to the publishers that the books once prescribed will not be changed within the period for which they are stated to be current. There is no justification for the assumption that these rules envisage the participation of the publishers in the scheme and that the Government is estopped from resiling from the representation that the period will not be altered. 40 Promissory estoppel is not an absolute doctrine which does not admit of any exception. One of the exceptions is change in policy by the Government in public interest. 41 However, mere ipsi diat that there is a change in policy is not sufficient. The Government has to show that there is overriding public interest which compelled it to change its policy. 42 Indian Oil Company changed its policy regarding distributorship. This resulted in cessation of supply of lubricants to some dealers. The policy was implemented by the Oil Corporation uniformly without discrimination. It was held that the earlier transactions between the dealers and the Corporation did not confer on the dealers any contractual rights and the doctrine of promissory estoppel could not be invoked against the corporation. 43 A factory existed in the area prior to declaration of that area as pollution control area and the petitioner was later denied no objection certificate question. It was held that the question of promissory estoppel did not arise. 44 No promissory estoppel arose where the Government granted a cement permit and afterwards cancelled it on account of a change in policy. 45 Promissory estoppel is not available against abolition of a Government post. 46 Government had agreed that a vast tract of private forest purchased by the company would be immune from acquisition under the proposed legislation for acquisition of private forest for a period of sixty years. Plea of equitable estoppel cannot avail against the Government from acquiring those forests. 47 The State Government after considering the proposal of the Development Authority regarding a housing scheme, directed the authority to finalise the scheme. Subsequently the Government ordered revocation of the scheme since the scheme was not in public interest and was in violation of the master plan. It was held that the subsequent order of revocation of the scheme was not hit by the principle of estoppel. 48 Even granting that there had been some representation on the part of the State Government, not to reduce the age of retirement, both the State Govt., and the officials concerned are bound by the impugned amendment reducing the age of retirement which is the result of the legislative act ion, as there is no estoppel against legislative action. 49 The power of the Central Government, to impose customs duty or grant, modify, withdraw exemption from duty is legislative in nature. Orders made in that behalf take the place of delegated or subordinate legislation. No promissory estoppel can be raised against exercise of that power by the Government. 50 The Government is also not bound by the act s of its Departments or officers which are beyond their powers or ultra vires . 51 Acceptance of rent by Patel and Patwari as agents of the Government under mistake of fact does not operate as estoppel against the Government in a suit for declaration of occupancy right. 52 Where certain officers of Govt. who were agents of the Govt. and were deputed to look after certain contract works and had no authority to give assurance for payment at enhanced rate proposed by contractor no estoppel against the Government could arise. 53 The State is not bound by

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doctrine of promissory estoppel for acts of its subordinate done in violation of its direction or administrative instructions. 54 An ultra vires act of an employee of a corporate body cannot bind the corporate body on the principle of equitable estoppel. 55 It is not bound by its illegal act when it subsequently changes its stand to be in conformity with law. 56 A release order as per Section 3 of the Imports and Exports Control Act (1947) was made by Joint Controller under mistaken belief that conditions for its issue were satisfied. It has held that the doctrine of equitable estoppel does not apply. 57 The State is not bound by the ultra vires act s of its agents. 58 Where a Government servant accepts damages for use and occupation from an unauthorised occupant, the Government is not estopped from saying that the occupant is an unauthorised occupant. 59 It was held by the Supreme Court that the holders of additional licence for 1978-79 were entitled to import only those goods which were included in 1985-88 of Import Policy and a letter was also issued by the Government of India making that position clear. Earlier to that a Government Official issued a letter which was contrary to the subsequent letter, it was held the earlier letter would not affect the position or create any estoppel. 60

Exemption from purchase and sales tax in respect of raw materials was granted. It was held that the exemption was in the form of concession and could be withdrawn without violating rule of promissory estoppel 61 but promissory estoppel cannot be invoked to compel the Government to refund tax realised by it. 62 A Govt. scheme permitting the small scale industrial units to realise "Tax for growth fund" at prescribed rates and pay the same, to be utilised towards their repayment of loans, was held to be an arrangement to refund the Sales Tax to the manufacturing units, hence no promissory estoppel could be invoked against the withdrawal of the said scheme by the Govt. 63 A Government servant retained accommodation beyond the concessional period of two months. He was liable to pay damages equivalent to the market rent for the period of such unauthorised occupation. It is an absolute liability. There was no representation or conduct amounting to representation on the part of the Government. As such it was held there could be no question of promissory estoppel in a matter of this kind. 64 Encroachers cannot invoke the principle of promissory estoppel. 65 Parties are bound to use Government aid only for sanctioned objects. Money sanctioned for payment of rent of school building was not allowed to be diverted to other heads. 66 Where a portion of darmashala lands was sold to the Local Fund Committee with the consent of the Government when there was no dispute about the ownership, the Government was not estopped from claiming ownership for the remaining property when the dispute arose between the Local Fund Committee and the Government. 67 Where land register is corrected by the Registrar on representation of the owner of the land there is no estoppel against the Registrar or the Government from asserting title to land. 68 Where the defendants had been receiving grant from the Government on the representation that a certain amount had to be paid on account of house rent for a school building it hardly lies in the mouth of the defendants to assert that there is no liability to pay rent for the school building. 69 It was contended that the Electricity Board could not enhance duty because its predecessor, the State Government had held out assurance to the petitioner of supply of hydel power at low and fixed rates over a long term of years. Acting on such representations and assurance, the petitioner agreed to locate its factory at Hirakud a place away from the raw materials and market for the produce. Rejecting the contention it was held that the agreement was the result of negotiations. The petitioner was as much desirous of being supplied electric power as the supplier was anxious and willing to supply the same; hence he could not raise the plea of promissory estoppel. 70 A Government employee joined military service prior to the issue of a Government memorandum whereby certain concessions were offered to those who joined military service. The employee claimed benefit of concessions so offered. It was held that the doctrine of promissory estoppel had no application against the Government, since the employee could not be said to have altered his position by joining military service pursuant to representation made in the memorandum. 71 Where the condition of allotment of flats permitted the allotting authority to vary forms of allotment, authority can not be estopped from varying terms of allotments. 72 Interim payment of running bills under Road construction contract, is not conclusive as to the quality of work or material used by the contractor. Government is not estopped from withholding final bill and forfeiting security deposit on the grounds of defective performance of the contract thereby. 73

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Where a city corporation leased land to petty shopkeepers and the lessees got evicted on termination of lease. The principle of promissory estoppel was held not attracted. 74 When a brochure was issued at the time of registration for allotment of houses indicating that the cost given in it was subject to variation, the increase in cost made subsequently by the Government, cannot be challenged on the ground of estoppel. 75 Where the Municipal Corporation took up the question of rehabilitation of squatters, there was no promise or representation to act in any manner nor any policy was formed to allot shops to such squatters. It was held that no direction can be given for allotment of alternative shops or no order prohibiting them from dispossessing such squatters can be made, and the principle of estoppel cannot be invoked. 76 The supply of Electricity and other amenities by authorities for dwellers on lands, does not estop the Government from acquiring those lands. 77 Mere supply of electricity for building purpose and charging for the same would not estop the corporation from demolishing the structure on the ground of violating building regulations. 78 The doctrine of promissory estoppel does not apply to criminal cases.

79

When an adoption was never accepted by the plaintiff, he could not be estopped to question the adoption merely because the suit was filed after fifteen years of adoption, moreso when he consistently denied the validity of the adoption. 80 Principle of estoppel is not applicable in assessment proceedings under provisions of Income-tax Act .81 Where the petitioner being a Councillor of the Municipal Corporation voted for the resolution for allotment of land for the purpose of publishing newspaper from the city in the public interest, it was held that he could not be estoppel from challenging the said allotment because no construction was made out on the plot as per conditions of resolution. 82 Where the plaintiff initiated and made the request to State Government for reconnection of power supply and State Government advised the State Electricity Board to reconnect the power supply and mutual arrangement terms and conditions were set out therein for the same it was held, that the Electricity Board had not given any promise and so it could not be estopped from issuing a notice for disconnection of power to the plaintiff. 83 Where the petitioner got his bid accepted by the authority illegally by playing fraud or misrepresentation, depositing of amount which was accepted under protest would not estop the authority from the cancelling the bid. 84 Where a candidate has been allowed to appear in C.P.M.T. common entrance examination for five courses, at the time of counselling he was found not eligible for B.D.S. course, it was held that the university could not be estopped from taking the plea that he did not fulfil the eligibility for B.D.S. course, merely because he was issued an admit card by the University. 85 A party was precluded from contesting the suit on a particular point on account of being disentitled in law then governing the field. During the pendency of the appeal the law changed entitling him to raise that point. It was held that he would not be estopped from raising that point in appeal on the ground that the same was not raised during the trial of suit as it was the law that precluded him and it was the changed law that enabled him thereafter. The principle of waiver or estoppel would not be attracted. 86 Where the excess levy of stamp duty and registration fee on a conveyance deed in favour of a firm and company was found illegal and invalid and without authority of law, the petitioners could not be estopped to challenge the same only on the ground that they had paid it voluntarily as there could not be an estoppel with respect to illegal levy of duty and fees. 87 A financial corporation sanctioned a loan to a party who kept on seeking extension of time for withdrawal of the sanctioned amount during the period of which the corporation incurred a huge loss and intimated him that it was not a position to disburse the loan amount, in such a situation, it was held that principle of estoppel would not apply. 88 Even though the previous suit for partition of the joint property, filed by a co-owner was dismissed, a fresh suit on the same cause of act ion was held to be not barred on the principle of estoppel, a right to sue for partition was held to be a continuing right so long as property remains joint. 89 23 Jit Ram Shiv Kumar v. State, AIR 1980 SC 1285. See also Bajrang Industries v. General Manager, D.I.C. Vizianagaram, AIR 1994 AP 10 (paras 13-15); P.V. Balakrishnan Nair v. State of Kerala, AIR 1994 Ker 6 (paras 13 and 14), holding Robertson v. Minister of Pensions, (1949) 1 KB 227 : (1948) 2 All ER 767 : 64 TLR 526, not a good law; Intrans Systems Pvt. Ltd. v. State of Kerala, AIR 1996 Ker 161 (paras 3 and 5); State Govt. extending promise without authority as requirement of concurrence of Central Govt. not obtained, no estoppel, Ram Nath Sahu v. Union of India, AIR 1996 All 19 (para 7); G. Sreenivasan v. Principal, Regional Engineering College, Rourkela, AIR 2000 Ori 56 (paras 26 and 33); John B. James v. Bangalore Development Authority, 2001 AIHC 837 (paras 36 and 38) (Kant). See also

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Gujarat State Financial Corp., v. Lotus Hotels Pvt. Ltd., AIR 1983 SC 848; M.P. Sugar Mills v. State of U.P., AIR 1979 SC 621; Surendra v. Oil and Natural Gas Commission, 93 Cal WN 449. 24 AIR 1980 SC 1285. 25 AIR 1979 SC 621. See also Motiram Mandhyani v. State of M.P., AIR 2004 MP 82, 97 (para 38); M. Deva Narayana Reddy v. Govt. of A.P., AIR 2004 NOC 332(AP) : 2004 AIHC 1405 : 2004 (2) Andh LT 65 : 2004 (2) Andh WR 289 : 2003 AIHC 4246, 4259 (para 66) (AP); State of A.P. v. Bheemunipatnam C-op. Building Society Ltd., 2005 AIHC 247, 254 (paras 44 & 45) (AP); State of A.P. v. Bheemunipatnam, Co-op. Building Society Ltd., 2005 AIHC 247, 253, 254 (paras 37 to 45) (AP). 26 Union v. Godfrey Philips India Ltd., AIR 1986 SC 806. 27 State v. Gwalior Rayon Silk Manuf. Co. Ltd., AIR 1973 SC 2734. 28 Excise Commer.U.P. v. Ram Kumar, AIR 1976 SC 2237; Bihar Eastern Gangetic Fishermen Co-op., Society Ltd. v. Sipahi Singh, AIR 1977 SC 2149; Sukh Dev Singh Gill v. State of Punjab, AIR 1986 P&H 167; Malhotra & Sons v. Union of India, AIR 1976 J&K 41; R.J.R Rao v. State of A.P., AIR 1973 A.P. 236; Uma Shankar v. H.S. & I.E. Board, AIR 1974 All 290; State of Punjab v. Amrit Banaspati Ltd., AIR 1977 Punj 268; Sankaranarayanan v. State of Kerala, AIR 1971 SC 1997 (Power of Government to make rules under Kerala Education Act). 29 N. Ramanatha Pillai v. State, AIR 1973 SC 2641. 30 Jit Ram Shiv Kumar v. State of Haryana, AIR 1980 SC 1285; Nowrangalal v. State of Orissa, AIR 1965 Ori 44(DB) . 31 Management of Bajrangpur Tea Estate v. State of Assam, 1998 AIHC 176 (para 5) (Gau). 32 Sunil Kumar v. State, AIR 1970 Cal 384. 33 Bihar EGF Co-op. Soc. Y. Sipahi Singh, AIR 1977 SC 2149. Similarly there can be no estoppel where the requirements of exemption are not satisfied, D.R. Kohli v. Atul Products Ltd., AIR 1985 SC 537. 34 C. Sankaranarayan v. State of Kerala, AIR 1971 SC 1997. 35 Excise Commissioner, U.P. v. Ram Kumar, AIR 1976 SC 2237; Union of India v. Maruthai Pillai, (1979) 1 Mad 426. 36 Indian Alluminium Co. Ltd. v. Karnataka Electricity Board, AIR 1992 SC 2169. 37 Vasanth Kumar Radhakrishan Vora v. Board of Trustees of the Port of Bombay, AIR 1991 SC 14. 38 Union of India v. R.C. D' Souza, AIR 1987 SC 1172. 39 Bansal Exports (P) Ltd. v. Union of India, AIR 1983 Del 445(FB) ; A.D. Amin v. Union of India, AIR 1990 Guj 167. 40 State of T.N. v. S.K. Krishna Murthy, AIR 1972 SC 1126. 41 R.K. Deka v. Union of India, AIR 1992 Del 53. See also Malu Khan v. State of Rajasthan, AIR 1990 Raj 112; Nandkishore v. Nagar Palika, Shajapur, AIR 1991 MP 99. 42 Union of India v. J.K. Industries, AIR 1991 Raj 45; See also American Dry Fruit Stores v. Union of India, AIR 1990 Bom 376. 43 Mahabir Auto Stores v. Indian Oil Corporation Ltd., AIR 1989 Del 315(DB) . 44 Chhatisgarh Hydrade Lime Industries, Bilaspur v. Special Area Development Authority, Bilaspur, AIR 1989 MP 82. 45 Jacob Philip v. Union of India, AIR 1985 Ker 255; R.B. Jodhamal v. State, AIR 1984 J&K 10. 46 Dasarathi v. State of A.P., AIR 1985 AP 136. 47 G.R. Silk Mfg. Co. v. State of Kerala, AIR 1973 Ker 36(FB) . 48 Hindu Housing Co-op, Society v. State of M.P., AIR 1987 M.P. 193. 49 Laxman v. State, ILR 1974 Kant 852. 50 Indian Rayon Corporation v. Collector of Customs, AIR 1988 Cal 228.

839

51 C.Y. Enterprises v. Braithwaite & Co., AIR 1984 Cal 306, a Govt. Co. not bound by contracts entered into under mistake of its rights; Chetlal Sao v. State of Bihar, AIR 1986 Pat 267(FB), acts done in violation of directions or administrative instructions. Govt. act ion taken contrary to law, no estoppel, Harbanslal Mahendra Kumar v. State, 1996 AIHC 3278 (para 13) (Raj). 52 ILR 1961 MP 454. 53 State of Rajasthan v. Motiram, AIR 1973 Raj 223. 54 Chetlal Sao v. State of Bihar, AIR 1986 Pat 267. 55 Prasada Rao v. Union of India, ILR 1973 AP 1122. 56 M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu, AIR 1999 SC 2468 (para 75). 57 M.S. Industry v. Jt. Chief Controller, Imports & Exports, AIR 1977 Mad 377. 58 State v. Maharami Adhirani Rajlakshmi, (1967) 46 Pat 767. 59 Kanwar Bhan v. Somawati, ILR 1969 Del 761. 60 Star Diamond Co., India v. Union of India, AIR 1987 SC 179. 61 Shri Bakul Oil Industries v. State of Gujarat, AIR 1987 SC 142. 62 Intrans Systems Pvt. Ltd. v. State of Kerala, AIR 1996 Ker 161 (paras 5 and 6). 63 Intrans Systems Pvt. Ltd. v. State of Kerala, AIR 1996 Ker 161 (paras 8, 11, 12 and 15). 64 Union of India v. Wing Commander., R.R. Hingorani (Rtd.), AIR 1987 SC 808; Larsen & Toubro Ltd. v. Union of India, (2005) 3 SCC 654, 661 (paras 17 and 18). 65 A.N.D. Alasingarahar v. Collector of Dharmapuri, AIR 2000 Mad 71 (para 8). 66 T.K. Ghosh's Academy v. T.C. Palit, AIR 1974 SC 1495. 67 District Local Board Ahmedabad v. Secretary of State, AIR 1938 P.C. 87. 68 P.K.A.B. Co-op. Society v. Government of Palestine, AIR 1948 PC 207. 69 T.K. Ghosh's Academy v. T.C. Patik, AIR 1974 SC 1495. 70 Indian Aluminium Co. Ltd. v. Orissa State Electricity Board, ILR 1974 Cut 503. 71 State of Karanataka v. Chikkamaglur, (1980) 1 Kant 401(DB) . 72 Ajai Pal Singh v. Bareilly Development Authority Bareilly, AIR 1986 All 362(DB) . 73 State v. Motilal, (1971) 21 Raj 457. 74 Vidyaranyanagar Petty Shop Keeper's Association v. Corporation of the City of Bangalore, AIR 1987 Kant 159. 75 Shiv Pal Karan Kholi v. State of U.P., AIR 1988 All 268. See also Rajiv Moudgil v. H.P. Housing Board, AIR 2000 HP 77 (paras 16, 18 and 34). 76 Moti Ram v. New Delhi Municipal Committee, AIR 1988 Del 57. 77 Lal Singh v. Lt. Governor, Delhi (1971) 2 Del 392. 78 United Taxi Operate C.T. & C. Society v. Delhi Municipality, AIR 1967 Punj 82. 79 State of Maharashtra v. Jethmal Himatmal Jain, 1994 Cr LJ 2613(Bom) . 80 Dwarka Nath v. Lalchand, AIR 1965 SC 1549. 81 I.T. Commr., W.B. v. D.P. More, AIR 1971 SC 2439, 2443. 82 Kanchanbhai Kanbhai Tadvi v. Municipal Corporation, Yadodara, AIR 2002 Guj 31, 37 (para 8) : 2002 (1) Guj LH 790.

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83 Mardia Chemicals Ltd. v. Gujarat Electricity Board, AIR 2002 Guj 404, 413 (para 13) : 2002 (3) Cur CC 336 : 2002 (2) Guj LH 282 : 2002 (2) Guj LR 1480. 84 G. Ram v. Delhi Development Authority, AIR 2003 Del 120 : 2002 (98) Del LT 800 : 2002 (64) Del RJ 140. 85 Y.P. Tripathi v. Director General Medical Education and Training, AIR 2003 All 164, 168 : 2003 All LJ 1489 : 2003 (2) ESC 1061 : 2003 (3) Sct 492 : 2003 (1) UPLBEC 427. 86 Ceean International Private Ltd. v. Ashok Surana, AIR 2003 Cal 263, 271, 272 : 2003 (2) Cal LT 322 : 2002 (4) ICC 597. 87 Suresh Bafna v. Inspector General of Registration, AIR 2004 Mad 355, 361 (para 32). 88 K.C. Industries Surendranagar v. Manager, G.S.F.C., AIR 2005 Guj 2, 5 (paras 13 & 14). 89 Baburao v. Eranna, AIR 2005 NOC 535(Kant) : 2005 AIR Kant HCR 2090, relying on AIR 1958 Assam 67.

51. CASUAL STATEMENT--NO ESTOPPEL Admissions in affidavit of the Government in earlier similar proceedings and other admissions made in Parliament on behalf of the Government are mere expression of opinion limited to the context and also being rather vague promises but not specific assurances are not binding on the Government so as to create an estoppel. 90 The Government averred about employee's continuing in service as of right till his 58th year. In a subsequent writ petition the employee could not contend that the Government, was barred by plea of estoppel in terminating the service before she reached age of 58th year. 91 Representations made in advertisements issued by Public Service Commission for appointments in vacancies by selection, would not be binding on the Government. Estoppel could not be pleaded in the absence of fraud or manifest injustice. 92 The petitioner company offered to sell frozen meat to army authorities at competitive rates. Army authorities sent a reply stating that at the appropriate time, tender would be floated and the company could give its offer. Subsequently, the army authorities granted contract to another company without floating tender and at rates higher than those quoted by petitioner company. It was held that there is no estoppel as there was no representation about the rates in its letter. 1 Where a company undertook to export certain percentage of total production and the Government, promised subsequent assistance, but withdrew the promise, it was held that such withdrawal of promise does not give rise to estoppel against the Government. 2 Where there is absence of clear and unambiguous representation by the Government to grant exemption from tax, withdrawal of the exemption is not illegal. Promissory estoppel would not operate. 3 No estoppel is created by a Minister's statement in the House and reported in newspapers that no import tax would be levied on rice brought into the State. 4 Draft University Ordinance, which has been approved by the Faculty and Academic Council but not yet accepted by the Executive Council, is not binding. Mere fact that the authorities acted in accordance with the draft ordinance would not make the draft ordinance valid and binding and would in no way operate as estoppel against the University, in the absence of any direct representation by the University. 5 90 P.C. Sethi v. Union of India, AIR 1975 SC 2164; N.C. Singhal v. Union of India, AIR 1980 SC 1255. 91 Binapani Dei v. State of Orissa, AIR 1971 Ori 170. 92 Balakram v. State, ILR 1975 HP 483. 1 Chandigarh Food & Services Ltd. v. Union of India, AIR 1990 P&H 206. 2 Kesoram Industries v. Union of India, AIR 1977 Cal 459. 3 Bakul Cashew Co. v. Sales Tax Officer, Quilon AIR 1987 SC 2239. A statement in a budget speech cannot give rise to estoppel, Venkatesh v. Asst. Collector Special Customs preventive Division, AIR 1992 Ker 383. 4 Sah Mahadeo Lal v. State of Bihar, AIR 1982 Pat 158. See also Mohamed Ebrahim Sait v. State of T.N., 1999 AIHC 708 (para 9) (Mad).

841

5 G.P. Singh v. Faculty of Law, AIR 1953 All 6.

52. EDUCATION AND ESTOPPEL Estoppel presupposes equity in the conduct of the claimant. A student who is a party to the issue of false marks-sheet cannot rely on it. 6 Where a marks-sheet showed failing marks but the remarks column showed "passed", the mistake being patent, the Board was not estopped from cancelling the result 7 A marks-sheet obtained by fraud can be rectified. 8 Where an ineligible candidate secured admission in teachers training school on payment of capitation fees and completed two years course, withholding of his result on the ground of ineligibility was held to be not improper and the plea of estoppel by the candidate was not tenable. 9 Where an ineligible candidate was admitted to a professional course by the College, the University was justified in disapproving his admission. 10 But where the entire strength of the examinees was only twelve, cancellation of their result on account of recourse to malpractice of mass copying without giving them hearing, was against the principles of natural justice and the petitioner, being one of them, was entitled to get the benefit of promissory estoppel 11 but the students allegedly found guilty of using unfair means in the examination were allowed to join the terms of the next year under the interim orders of the High Court, the university was not estopped from altering the results subsequently on the basis of the decision of the syndicate finding them guilty., The Syndicate had powers to alter results even beyond two months. 12 The Andhra Pradesh High Court allowed an institution to cancel an admission obtained on the basis of a false certificate even though the falsity was discovered after four years of study 13 But the Patna High Court did not allow this to be done when the candidate was in the fifth year. 14 An admission on the basis of a false certificate of caste can be cancelled 15 . But Rajasthan High Court did not permit it to be cancelled after three of four years. 16 Where an institution makes an error in an admission it may cancel the same if the mistake is on a point of law. An admission was accordingly allowed to be cancelled when admission rules required the candidate to be Inter in Sanskrit whereas the admitted candidate was not. 17 However an admission which slipped through in spite of inadequate percentage of marks was not allowed to be cancelled right on the verge of examinations. 18 Admission to the course of Physical Training Instructor after allowing the candidate to undergo full training for about a year was not allowed to be cancelled on the ground that the sports certificate given by him was not properly authenticated. 19 The principle of estoppel was also applied where a candidate was given admission in a particular subject by mistake without any suppression of fact by her and she pursued the course and altered her position. 20 Where the selection committee admitted a candidate in a Medical College on a seat reserved for the army personnel by mistake, cancellation of her admission four months after joining was held to be illegal. More so when rules of natural justice were not followed 21 but the doctrine of equitable estoppel was not applied where the admission of the petitioner was cancelled only three days after his admission was wrongly made and he had not lost any chance to join any other institution. 22 Where the petitioner got admission on the basis of the marks sheet supplied and when the university sought to cancel the result on the ground of mistake, it was held that promissory estoppel applies. 23 A wrong marks sheet showing that the student had passed was supplied to him by the university. He had no other means of knowing the real state of affairs relating to his examination results. It was held that the University was estopped from taking the plea after a lapse of a number of years that the student had in fact failed. 24 Where provision in the prospectus of post graduate medical course regarding giving first preference to the in service candidates in selection of colleges or courses of studies was introduced by G.O. dated 17-3-97 after the petitioners belonging to the general merit quota wrote examination in accordance with the prospectus and it is not made clear that that part of the prospectus was made known to the applicants till the date of interview, the petitioners were not barred from challenging the prospectus as unconstitutional and incorrect. 25 However, the students, who were admitted on the basis of a certain prospectus and also appeared in the written examination, were held to be incompetent to challenge the said prospectus. 26 The fact that a candidate was allowed to appear for a competitive test for

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admission to a Medical College, does not estop the selection committee from refusing admission on the ground that the said candidate failed to prove his domicile. 27 Where in the admission notice of a Homeopathic Medical College as well as in its brochure it was given that the Central Council had given approval for upgrading the Diploma into Degree from that session and the petitioner-students act ed on it and passed the diploma but no document was found to be issued by the authorities to this effect prior to the advertisement, it was held that the authorities would not be bound by mere declaration by the colleges in the absence of any rule postulating such conversion of diploma into degree course. 28 There are four occasions categorized below, on which refusal to permit a candidate to appear in an examination do not attract estoppel (i) A person who practices fraud or makes a mis-statement or suppresses material facts cannot claim estoppel. (ii) Where there is some technical defect in the filling of the form or where there was a deficiency in attendance, which defect or deficiency could not be condoned by the authorities in exercise of discretion mentioned under the statute. (iii) Where the candidate was patently ineligible on the particulars supplied by him, as there can be no estoppel against statute. (iv) Where the question of eligibility depends upon the interpretation of a provision of law. The principle of estoppel will depend upon the facts of each case. 29 Where a candidate was admitted to law course by a Law College, the University permitted to appear for pre-law, intermediate law and even final examinations but refused to declare his results on the ground that the candidate was not eligible to be admitted to the Law Course, it was held that the University was barred by estoppel. 30 Where the basis of selection for admission to an Educational Institution is changed abruptly to the detriment of the candidate, principle of estoppel applies. 31 Where in an admission test, an additional condition of passing two examinations for rural areas was imposed without earlier publication of the same, the State or University was estopped from denying admission on that basis. 32 Where the date of completion of house job by candidates was fixed mistakenly by the State Government beyond the cut-off date fixed by the Supreme Court for admission to post-graduate medical course, any candidate misled by the mistake of the State was entitled to seek admission on that basis for that year. 33 Where the Government gave recognition to an educational institution and later withdrew the recognition, the Government was directed to recognise the certificate issued to students joining the course before derecognition under the doctrine of promissory estoppel. 34 Where inaction by the University results in admission to a non-eligible candidate, equitable estoppel applies against the University. 35 The petitioner was promised by the Indian Institute of Technology (Madras) that his application for admission to the M. Tech., course would be considered if seats were available. One seat became vacant and the petitioner was the only earnest claimant for that seat. It was held that the Institute, on its own promise was estopped from denying the seat to the petitioner and it was not for the Institute to advance the cause of other candidates who had not evinced any interest in claiming the seat. 36 Where for entrance examination to B.Ed. course, minimum eligibility criteria was fixed as 45% from 40% marks at degree examination of a recognised university by the National Council for Teacher Education Act , 1993 as advertised earlier but in the advertisement for the entrance examination it was shown that 40% marks will be minimum qualification, it would not act as estoppel against the university for changing the criteria of marks which was done in consonance with law. 37 Where the petitioner act ed upon the eligibility criteria stated in the notifications and applied for the test on the basis of marks obtained by her in the Post-Graduate examination and on being declared successful she got admission in the B. Ed. Course, the respondents would be estopped from cancelling the admission of the petitioner on the ground of securing less than 45% marks in graduation. 38 Candidates were admitted to B.Ed., course, they had paid fees, pursued studies for months and had even submitted notes of lessons, etc. In the middle of the session, their admission was cancelled for non-compliance with one of the conditions laid down for admission. It was held, that cancellation at such stage, that too for n fault of the candidate attracted the doctrine of promissory estoppel and the order of cancellation was liable to be quashed. 39 Where petitioners as in-service candidates for admission to P.G. course in medicine failed to challenge G.O. indicating the procedure adopted for the purpose of selection and they paid fees without protest after allotment of seats, they could not be allowed to challenge the selection subsequently at belated stage. 40

843

The fact that exemption was granted to a candidate in respect of minimum age at S.S.C. Examination, does not ensure to her the benefit for admission to all future courses of study, when she is overaged. However, acceptance of application for entrance examination to medical course, attracted the doctrine of promissory estoppel and she could not be denied admission. 41 A student was admitted to a private engineering college after due selection. His admission was subsequently cancelled on the ground that he had not secured minimum marks in qualifying examination as mentioned in college prospectus. The University regulation did not prescribe any minimum marks for eligibility for admission to engineering colleges. The college was held estopped from cancelling the admission. 42 Where the University Ordinance prescribed a rule for revaluation of answer books and a candidate, seeking revaluation of his answer booklet, found adverse change in his marks after revaluation, the outcome of revaluation is binding on him and there is no promissory estoppel. 43 On appearing in the improvement test a student was allowed by the university to appear at M. Sc. Pt. II Examination, her result could not be withheld on the basis of the resolution of the Examination Committee prohibiting the students from taking two examinations in a year. More so when the resolution was never communicated to her. 44 Where the University represented to an examinee for M.Sc., (Part-I) examination that he had passed that examination by forwarding the mark list showing him to be successful and subsequently confirmed the said representation by informing him, in response to his application for scrutiny of certain answer books, that there was no change in the marks obtained by him, the University could not, after his having completed M.Sc. (Final) course as per requirement, prohibit him, on the eve of M.Sc. (Final) examination, from appearing at that examination on the plea that he in fact did not pass M.Sc. (previous) examination. 45 A student was admitted to a medical college on transfer from another medical college. He was not informed that students admitted only through CPMT would be eligible to post-graduate course in a transferee college. It was held that denial of admission to the said student was not proper as the State Government had acquiesced in the transfer. 46 A Government resolution regarding admission to postgraduate courses in medicine were changed from time to time, even though the resolutions were amended prior to the date of admission to the post-graduate courses some of them were made, after the candidates passed the M.B.B.S. Examination. It was sought to be contended by the candidates that when they appeared for M.B.B.S. examination, they had in mind the Government resolutions which were in force for eligibility for admission to post-graduate course and they prepared and appeared for M.B.B.S. examination on that basis and their legitimate expectation regarding their eligibility for admission to post-graduate course on the basis of the results in the examination were shattered by a change in the rule regarding the admission in post-graduate course. It was held that the doctrine of legitimate expectations would not apply as a student appears for the M.B.B.S. examination would only look at the Government resolution operating at that time. In the circumstances it was held that the rule of promissory estoppel would not apply. 47 Where the CBSE allowed some candidates to appear in the examination provisionally considering a very short time left for commencement of examination and future career of eligible candidates, the doctrine of promissory estoppel cannot be invoked on withholding results of such ineligible candidates. 48 An institution cannot change examination rules after the tests have already been conducted candidate submitting to such rules cannot subsequently, assert rights contrary to them. 50

49

and a

Where the colleges were started on the basis of the permission granted subject to conditions mentioned in such permissions based on Govt. Order, and the managements started the colleges by investing huge amounts and putting lots of efforts on the basis of such permissions, the Govt. could not either make the 50% of the seats as Govt. seats in private unaided colleges or take away the right of admission of students to that extent by issuing executive order. 51 The University launched a programme of "autonomous colleges" on a year to year basis and issued application forms. A women's college filed application which was recommended by the Inspection Commission. There was no promise or assurance on the part of University. The College prescribed its own syllabus on autonomous pattern. Subsequently there was denial of status to college on the basis of direction of the University Grants Commission. It was held principle of promissory estoppel was not attracted. 52

844

When sufficient number of S.C./S.T. candidates were not available to fill the reserved quota of seats in Medical or Dental Colleges, the Government reduced the minimum qualifying marks from 35% to 25% in order to accommodate more such candidates. It was held that the Government, was competent to do so and its action was not hit by rules of estoppel. 53 Non-consideration of a candidate as a reserved category candidate due to non-filing of such certificate could not be challenged after taking preentrance examination as a general candidate. 54 Where a student sought admission to an educational course by obtaining and filing a false certificate of belonging to a certain tribe, she cannot claim to continue her studies on the ground of equity or promissory estoppel as she did not come with clean hands. 55 NRI students took admission on certain specific conditions and the University has a right to insist that those conditions are observed. It would not be open to the students to contend that notwithstanding that they had been admitted on a certain fee structure they were entitled to claim as a matter of right, a reduction in fee to bring them to a par with students admitted later under a lower fee structure. The argument of estoppel in such a case would, thus, be available to the educational institution. 56 Where the candidates applied for admission to a particular course in terms of the prospectus, they were not estopped from challenging a particular clause of that prospectus later. 57 The candidates after having taken part in the entrance examination for admission to a super speciality medical course and having no right to reservation quota could not challenge the selection on the basis of subsequent retrospective amendment of the prospectus by the Govt. providing for certain reserved seats. 58 Where a student, prosecuting All India Secondary School Certificate Course, on transfer of his father to a place where no such course was available, applied for admission into a college affiliated to Council conducting Higher Secondary School Certificate Course and got admission, subsequently withholding his result in view of a Regulation of the Council that he had not passed any equivalent examination making him eligible for admission, was held to be illegal and the Regulation was held to be unreasonable and discriminatory. 59 Where a student was admitted to LL.B. course though he secured less than 49% marks at the qualifying examination, on a recommendation of a Minister and subsequently admission was cancelled by the University, it was held that the cancellation was not illegal and the principle of estoppel cannot be applied. 60 Where about the hike in fee the students were informed at the first available opportunity alongwith issue of their roll numbers for the entrance test, then in detail at the time of counselling and again by issuing a public notice, promissory estoppel would not apply against authorities from claiming the hiked fee; 61 but where a student took admission on the basis of representation made in the prospectus showing the fee structure, he could not be estopped from challenging the rate of fee by invoking the rule of estoppel against him as it would lead to injustice and be wholly inequitable. 62 In the Admission Brochure 2007 of the Kendriya Vidyalaya Sangathan the age of the child for taking admission in Class 1 was fixed at five years as on 30th September of the concerned academic year. The KVS was estopped from taking the stand that they will be eligible to take admission in Class 1 as per changed eligibility criteria as the change of eligible age with retrospective effect could certainly prejudice the children who have passed the Primary Class having admission as per Admission Guidelines 2007. 63 6 Satish Kumar v. Gorakhpur University, AIR 1981 All 377. 7 Kedar Lal v. Secy. H.S. & I. Education, AIR 1980 All 32; See also Haripadadas v. Ulkal University, AIR 1978 Oris 68. Admission of ineligible candidate by college under some mistake, not binding on university, cancellation proper, Charan Singh v. Punjab University, Chandigarh, AIR 1997 P&H 278. On inquiry university found admission done by affiliated college invalid, no estoppel against withholding the result for rectifying the mistake, Sitam Seshank v. Principal, College of Pharmaceutical Sciences, AIR 1997 Ori 62, following Rajendra Prasad Mathur v. Karnataka University, AIR 1986 SC 1448. Promotion wrongly shown in marksheet does not attract promissory estoppel, Vice-Chancellor, University of Allahabad v. S.P. Ratnakar, AIR 2001 All 319 (paras 7 and 8). 8 Karupa Sindhu v. Orissa Board of Sec. Edu., AIR 1981 Ori 91. 9 M.K. Sankaran v. Govt. of Tamil Nadu, AIR 1998 Mad 332 (para 10).

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10 K. Shashidhar Rao v. Dr. Ambedkar Institute of Technology, Bangalore, AIR 1998 Kant 294 (paras 11 and 12). 11 Reeta v. Berhampur University (FB), AIR 1993 Ori 27 (paras 18 and 19). 12 Desai Devang v. Registrar, South Gujarat University, AIR 1996 Guj 96 (para 10). 13 N.B. Rao v. Principal, Osmania Medical College, Hyderabad AIR 1986 AP 196; Venkat Rao v. Principal, Andhra Medical College, 1989 AP 159. Admission obtained by student by producing fake marks card, no estoppel against university in cancelling his admission, P.N. Bhadra v. Registrar, University of Agricultural Sciences, Bangalore, AIR 1997 Kant 100; Dinesh v. State, AIR 1993 Raj 187 (paras 16 to 19, 21 and 23). 14 Amresh Kumar v. Principal, Bhagalpur Medical College, AIR 1982 Pat 122. 15 Israr Ahmad Mansuri v. State of M.P., AIR 1982 MP 205. Caste certificate obtained by fraud creates no estoppel, State of T.N. v. A. Gurusamy, AIR 1997 SC 1199. 16 Harphool Singh v. State of Rajasthan, AIR 1981 Raj 8. See also Mukund Prasad Khare v. State, AIR 1996 MP 130 (paras 7-10). 17 Dalip Singh v. Pracharya & Adhikshak, AIR 1986 All 158. See also Vinod Kumar Razdan v. State, AIR 1995 J&K 68 (paras 10-12 and 14), distinguishing AIR 1976 SC 376; Prabhjot Wahi v. Guru Nanak Dev University, Amritsar, AIR 1995 P&H 269 (Paras 13 , 14 , 16 ). 18 Sangeeta Srivastva v. U.N. Singh, AIR 1980 Del 27. For other admission cases see Manoj Kumar v. Co-ordinator, A.C.M.N.R. Engg. College, AIR 1985 All 257; Gladson Menino Vaz v. Goa Medical College, AIR 1981 Goa 21; Neelam Kumar v. State of Bihar, AIR 1994 Pat 15. 19 Randhir Singh v. State, AIR 1995 Raj 44 (para 10). 20 Smita Shukla v. University of Allahabad, AIR 1994 NOC 107(All) . 21 B. Jayalakshmi v. S.C., University of H.S., Vijayawada, AIR 1994 AP 297 (paras 3-5). 22 Brajendra Singh Chouhan v. State, AIR 1995 MP 23 (para 10). 23 Maxey Charan v. Rohil Khand University, AIR 1992 All 122; See contra Prabhat Kishor Sahu v. Sambalpur University, AIR 1992 Ori 83; N. Vanajakshi v. Principal, University College for Women, Hyderabad, AIR 1999 AP 323 (paras 10 and 12) and Birendra Nath Mondal v. Vidyasagar University, AIR 1999 Cal 283 (paras 24, 26 and 28); (on similar facts See also M. Hussain v. Bharathiyar University, Coimbatore, AIR 1991 Mad 45; Rabisankar v. Orissa State Financial Corporation, AIR 1992 Ori 93. 24 Basanta Kumar Mohanty v. Utkal University, AIR 1990 Ori 10. See also Saumendra Kumar Chainy v. Utkal University through Registrar, AIR 2008 (NOC) 2573(Ori) . 25 A.V. Gopalkrishnan v. Byju N., AIR 1999 Ker 10 (para 8). 26 R. Murali v. R. Kamalakkanan (FB), AIR 2000 Mad 176 (paras 37, 46 and 55). See also Karthik Jayachandran (Dr.) v. Rajiv Gandhi University of Health Sciences, AIR 2006 (NOC) 975(Kant) : 2006 (3) AIR Kar R 392. 27 N. Kanakadurga v. K. Medical College, Warangal, AIR 1972 A.P. 83. 28 Varinder Singh v. State of Punjab (FB), AIR 1998 P&H 42 (para 44). Also see Osmania University v. R. Madhvi, AIR 1998 AP 130 (para 4). 29 Balkrishna Tiwari v. Registrar of Awadhesh Pratap Singh University, Rewa 1978 MP 86. 30 Sanatan Gauda v. Berhampur University, AIR 1990 SC 1075. See also Kanishka Aggarwal v. University of Delhi, AIR 1992 Delhi 105; Vedica College of Education, Bhopal v. Barkatullah University, AIR 2008 MP 219, 221 (paras 7-9). 31 Abodha Kumar v. State of Orissa, AIR 1969 Ori 80. 32 Rajkumar Gadpayle v. State, AIR 1997 MP 85, distinguishing State of M.P. v. Ku. Nivedita Jain, AIR 1981 SC 2045; Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupesh Kumarsheth, AIR 1984 SC 1543; Jatinder Kumar v. State of Punjab, AIR 1984 SC 1850 and Indra Sawhney v. Union of India, AIR 1993 SC 477, relying on M.P. No. 1323 of 1989 decided on 8-12-1989 (MP) and following Soneram Dhakad v. State of M.P., (1995) WP No. 1295 of 1995 decided on 10-11-1995 (MP). 33 Popat Ramachandra Jadhav v. State of Maharashtra, AIR 1990 SC 749.

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34 Suresh Pal v. State of Haryana, AIR 1987 SC 2027. 35 Sangeeta v. U.N. Singh, AIR 1980 Del 27; Inder Parkash v. Dy. Commer., Delhi, AIR 1979 Del 87; Mohan Lal Sukhadiya University, Udaipur v. Rajesh Kumar Makhija, AIR 2006 Raj 291, 299 (para 35). 36 Manjunath v. Indian Institute of Technology, Madras, AIR 1987 Mad 22. 37 Anop Singh Ratnu v. Maharshi Dayananda Saraswati University Ajmer, AIR 1998 Raj 54 (para 11). 38 Abida v. M.D.S. University, AIR 1998 Raj 328 (para 11). See also Sanchit Bansal v. Joint Admission Board, AIR 2009 (NOC) 147(Cal) . 39 Shyamlal Shrungi v. State of M.P., AIR 1990 M.P. 15. 40 K.S. Sunitha v. State of Karnataka, AIR 2005 NOC 622(Kant) . 41 Narmada v. Secretary, Medical & Health Dept., A.P. AIR 1988 AP 2. 42 Ambika Prasad Mohanty v. Orissa Engineering College, AIR 1989 Ori 173(DB) . 43 Lalit Taori v. Nagpur University, Nagpur, AIR 1986 Bom 255(DB) . 44 Ruchira Chauhan v. Rohilkhand University, Bareilly, AIR 1996 All 12 (paras 3 and 4). 45 Anil Kumar v. University of Allahabad, AIR 1973 All 442; Registrar, University of Madras v. Sundara Shetty, AIR 1956 Mad 309(DB) . 46 Lavelina Chawla v. State of U.P., AIR 1990 All 179. 47 Ashwin Prafulla Pimpalwar v. State, AIR 1992 Bom 233(FB) . 48 Sidartha Mishra v. Central Board of Secondary Education, AIR 2007 (NOC) (Ori) 777(DB) . See also Apurv Kumar Mishra v. National Law School of India University, Nagarbhavi, AIR 2009 (NOC) 150(Kar) : 2008 (6) AIR Kar R 207. 49 Competitive test held without reservation, subsequent reservations not allowed. Anand Kumar v. State, AIR 1981 Pat 164; Deepak v. State, AIR 1982 Pat 126. Merely by appearing in qualifying exams. and subjecting himself to selection process, candidate not debarred from challenging subsequent change in criteria, Miss Anjum Afshan v. State of J&K, AIR 1994 NOC 312 (J&K). 50 Nishant Singh Sipehia v. Regional Engineering College, Hamirpur, AIR 2000 HP 99 (paras 12-14). 51 Association of Management of Pvt. Colleges v. State of T.N., AIR 1998 Mad 34 (para 65). 52 Meenakshi College for Women v. University of Madras, AIR 1991 Mad 32. 53 Aarti Gupta v. State of Punjab, AIR 1988 SC 481; Awadeesh Nema v. State of M.P., AIR 1989 MP 61. 54 Naresh Singh v. State, AIR 1994 J&K 42 (paras 22 and 24); see also Arshad Iqbal v. State, AIR 1997 J&K 100 (paras 14 and 20). 55 Madhuri Patil v. Addl. Commissioner, Tribal Development, AIR 1995 SC 94 (para 15). See also B. Seenaiah v. Health University Vijayawada, AIR 1995 AP 181 (para 31). 56 Cochin University of Science and Technology v. Thomas P. John, (2008) 8 SCC 82, 92 (para 19) : AIR 2008 SC 2931. 57 V. Ramalakshmi v. Director of Medical Education, Chennai, AIR 1998 Mad 55, at p. 57. See also State of T.N. v. G. Sumathi, AIR 1999 Mad 327 (para 13). 58 S. Gomathy v. State, AIR 1996 Ker 347 (para 14); no vested right for admission, no estoppel, Nupur v. Punjab University, Chandigarh, AIR 1996 P&H 132 (para 37); Harpreet Singh Randhawa v. State of Punjab, AIR 2001 P&H 107 (para 2). 59 Amarjeet Jena v. Council of Higher Secondary Education, Orissa, AIR 1999 Ori 129 (paras 11, 18 and 25). 60 Rajesh v. Awadhesh Pratap Singh Vishwavidyalaya, AIR 1988 MP 138. See also Surendra Kumar v. Board of Secondary Education, AIR 1995 Raj 115 (paras 5 and 6). 61 Mithiless Kumar v. State of Punjab, AIR 2001 P&H 300 (para 12).

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62 Thomas P. John v. Cochin University of Science & Technology, AIR 2003 Ker 238, 242; On this point the High Court has discussed at length various decisions of the Apex Court. ILR (Ker) 2003 (3) Ker 261. 63 Biswam Patra v. Kendriya Vidyalaya Sangathan, AIR 2009 (NOC) 155(Ori) .

53. EMPLOYMENT--ESTOPPEL Estoppel was pushed into service in favour of a person who was appointed the Vice Chancellor of a University for one term on the assurance that his appointment would be extended for one more term and he had on that basis given up his political career and his seat in the Assembly. 64 Where the appointee accepted the terms and condition in the appointment letter and accepted monthly compensation, he could not subsequently contend that the appointment letter was not signed by an authorised person and hence its terms could not be complied with. 65 Where the petitioner holding an unrecognised diploma in tailoring was appointed by the University as Tailoring Instructor after considering his qualification and was continued in service for four years and was kept under the impression that he would not be removed from service, it was held that the University was estopped from terminating his service as unqualified Instructor 66 but employment snatched by a workman on the basis of bogus and forged casual labourer service cards was liable to be recalled and voidable at the option of the employer. His continuing in employment for a number of years, would not attract estoppel. 67 It is well-settled principle of law that, if the appointment made on probation/ ad hoc for a specific period of time, comes to an end by efflux of time, the person holding such post can have no right to continue in the post. 68 Where an employee accepts the terms and conditions stipulated in the appointment order and allows the period for which he is appointed, to have lapsed by efflux of time, he is not permitted to turn back and say that the appointment was de hors the Rules of the terms and conditions stipulated in the appointment, were not legally valid. 69 When a candidate appears at the examination without protest and subsequently found to be not successful in the examination, question of entertaining a petition challenging the said examination would not arise. 70 A candidate participating in the selection process is estopped from challenging the process. Omission in advertisement to state that it was a special recruitment was immaterial. 71 Where all the candidates were made aware of the procedure for promotion before they sat for the written test and before they appeared before the Departmental Promotion Committee, they could not turn around and challenge that procedure, when they found that they were not selected. 72 The conduct of appearing before a selection committee without any objection as to the constitution of the committee would create an estoppel preventing the candidate from challenging the Constitution of the committee even if the decision was against him. 73 Where the candidate knew that there was a change in the eligibility for the post yet he applied for the post and appeared at the interview without protest. He could not subsequently be allowed to contend that the eligibility criteria were wrongly framed. 74 The candidates, who were appointed after giving an undertaking in terms of the interim order passed by the High Court, knew that their appointments were precarious and subject to the outcome of appeal. The decision in appeal having gone against them, they were bound by their undertaking given to the Court and could not subsequently contend otherwise. 75 A person was allowed to appear for a competitive examination as being duly qualified. He was discharged from service after the expiry of the probationary period on the ground that he was not qualified to appear for the competitive examination, as the petitioner, was overage at the time of discharge and was not eligible for employment, it was held that plea of estoppel was available to him and the discharge was illegal. 76 Where the Bihar Electricity Board had made representations that graduates, who would be taken as Training Engineers, would be regularised against appropriate posts, its submission that such appointments would be contrary to statutory rules of the Board, was brushed aside and the Court directed the Board to act in terms of the representations made. 77 Where there was negligence of the Government in re-appointing the petitioner and, on discovering its own negligence subsequently discharged the petitioner who had become overage at the time of discharge, it was held that the discharge was illegal and estoppel operated against the Government. 78

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It may generally not be useful or wise to take recourse to strict legalistic principles like estoppel in deciding questions in industrial adjudications. 79 Retrenched workmen in starving condition who accepted retrenchment benefits are not estopped from challenging the legality of the retrenchment as the technical plea of estoppel is not applicable in cases of industrial disputes. 80 However in case of Voluntary Retirement Scheme the employee, having accepted the payment/benefits under the Scheme and appropriated the same for his benefit, was not permitted to withdraw his option and resile from the Scheme even before the cut-off date. 81 The employee, having written the letter of voluntary retirement and after having accepted the retiral benefits without any protest cannot thereafter turn round and say that he was compelled to submit his premature/voluntary retirement. 82 Though the claim of respondent to reappointment was overlooked while making appointments by the Manager of an Educational Agency and the Education Officer approved the action of the Manager, the respondent is not estopped from putting forward his right to reappointment in future proceedings in the absence of some positive act ion on his part which gives rise to the bar of estoppel 83 but employment snatched by a workman on the basis of bogus and forged casual labourer service cards was liable to be recalled and voidable at the option of the employer. His continuing in employment for a number of years, would not attract estoppel. 84 The doctrine of promissory estoppel does not apply to a contract between the employer and the employees as to the range of quantum of bonus. It cannot be said that, by the offer of bonus by the employer, the employees changed the position to their detriment as the offer is made in the context which the employees are presumed to know. 85 An employee is entitled to seek change in his date of birth only in case of bona fide mistake in recording the date of birth at the time of employment, otherwise principle of estoppel will apply.

86

Eligibility criterion, as to the preference to be given to the additional qualification on the basis of the superseded rule, stated in the advertisement, was held to be not binding on the Public Service Commission and cannot provide a legal basis for a right in favour of any candidate to the detriment of others. 87 Where the employee participated in the disciplinary proceedings initiated on the ground of dereliction of duty, misappropriation etc. by filing reply to the charges without any demur, he was estopped from raising the plea that the charge was vague. 88 Where the representation filed by the employee would clearly show that he knew that a departmental enquiry was initiated against him yet he chose not to participate in the enquiry proceedings at his own risk, he was estopped from raising the question of non-compliance with the principles of natural justice as the same was deemed to have been waived. 89 Objection as to the incompetence of the inquiry officer in a disciplinary proceeding must be raised at the earliest opportunity. It cannot be raised for the first time before the superior Courts. 90 A candidate can be excluded from consideration at interview stage also on account of the defect in his application making him ineligible for selection and the principle of estoppel will not apply in such a case. 91 Where the bank employees, having taken the benefit of Voluntary Retirement Scheme, sought for the enforcement of a certain clause in the Scheme providing that they will be eligible for pension under the Pension Regulations, 1995, they in fact did not resile from the Scheme and it was held that estoppel was not applicable in the case. 92 64 Hardwari Lal v. G.D. Tapase, AIR 1982 P&H 439 (FB). 65 Sociedade de Fomento Industrial Ltd. v. Ravindranath Subraya Kamat, AIR 1999 Bom 158 (para 8). See also Union of India v. Brahma Dutt Tripathi, AIR 2006 SC 3244, 3245-46 (para 8) : (2006) 10 SCC 220. 66 Gadde Nagabhushanam v. Krishna Zilla Parishad, ILR 1971 AP 633. 67 Union of India v. M. Bhaskaran, AIR 1996 SC 686 (para 6). 68 Management of Kalpataru Vidya Samasthe v. S.B. Gupta, AIR 2005 SC 3458, 3459 (para 7) : (2005) 7 SCC 524. See also Director, Institute of Management Development v. Pushpa Srivastava, AIR 1992 SC 2070 (para 20). 69 Management of Kalpataru Vidya Samasthe v. S.B. Gupta, AIR 2005 SC 3458, 3460 (para 8) : (2005) 7 SCC 524.

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70 Om Prakash Shukla v. Akhilesh Kumar Shukla, 1986 Supp SCC 285, followed in Madan Lal v. State of J&K (1995) 3 SCC 486. See also Chandra Prakash Tiwari v. Shakuntala Shukla, (2002) 6 SCC 127 (paras 32, 33 and 34) : AIR 2002 SC 2322; K.H. Siraj v. High Court of Kerala, AIR 2006 SC 2339, 2358 (para 75); Dhananjay Malik v. State of Uttaranchal, AIR 2008 SC 1913, 1914 (paras 7 and 8); P.S. Gopinathan v. State of Kerala, AIR 2008 SC 2768, 2777 (para 32); K.A. Nagamani v. Indian Airlines, (2009) 5 SCC 515, 527 (para 54). 71 University of Cochin v. N.S. Kanjoonjamma, AIR 1997 SC 2083. See also Amlan Jyoti Borooah v. State of Assam, (2009) 3 SCC 227, 236 (para 32). 72 Union of India v. N. Chandrasekhran, AIR 1998 SC 795 (para 13). See also Vijay Syal v. State of Punjab, AIR 2003 SC 4023 (para 12) : (2003) 9 SCC 401. 73 G. Sarana v. Lucknow University, AIR 1976 SC 2429. 74 G.N. Nayak v. Goa University, AIR 2002 SC 790 (para 22) : (2002) 2 SCC 712. 75 Vithal v. State of Karnataka, (2004) 10 SCC 162, 168 (para 10). 76 K. Jagannadhan v. District Collector, AIR 1966 AP 59. 77 Surya Narain Yadav v. Bihar State Electricity Board, (1985) 3 SCC 38 : AIR 1985 SC 941. 78 Pamandass v. Manikyam Pillai, 1969 AP 59. 79 Associated Cement Companies v. Their Workmen, AIR 1959 SC 967. 80 Hind Strip Mining Corpn. v. Raj Kishore, AIR 1967 Pat 12. 81 Punjab & Sind Bank v. S. Ramveer Singh Bawa, AIR 2004 SC 2334 (para 8) : (2004) 4 SCC 484, reversing L.P.A. No. 455 of 2001, dated 5.9.2001 (Delhi). The Court referred to Bank of India v. O.P. Swarnakar, AIR 2003 SC 858 : (2003) 2 SCC 721 and Punjab National Bank v. Virender Kumar Goel, (2004) 2 SCC 193 : AIR 2004 SC 1800. 82 Gyanendra Sahay v. Tata Iron and Steel Co. Ltd., AIR 2006 SC 2795, 2798 (para 14) : (2006) 5 SCC 759. See also Seema Ghosh v. Tata Iron & Steel Company, AIR 2006 SC 2936, 2940 (para 19) : (2006) 7 SCC 722; Bharat Coking Coal Ltd. v. Presiding Officer, 1995 Supp (2) SCC 598. 83 Janaki Amma v. State of Kerala, (1970) 2 Ker 24. 84 Union of India v. M. Bhaskaran, AIR 1996 SC 686 (para 6). 85 C.N. Sharma v. L.I. Corporation, (1979) 1 Del 525. 86 Union of India v. C. Rama Swamy, AIR 1997 SC 2055. 87 Secretary, A.P.P.S.C. v. Y.V.V.R. Srinivasulu, AIR 2003 SC 3961 (para 9) : (2003) 5 SCC 341. 88 Om Prakash Mann v. Director of Education (BASIC), AIR 2006 SC 3096, 3097 (para 8) : (2006) 7 SCC 558. 89 Board of Directors, Himachal Pradesh Transport Corporation v. K.C. Rahi, (2008) 11 SCC 502, 504 (para 8) : (2008) 3 JT 315. 90 H.V. Nirmala v. Karnataka State Financial Corporation, AIR 2008 SC 2440. 91 T. Jayakumar v. A. Gopu, (2008) 9 SCC 403, 406 (paras 12 and 13) : (2008) 10 JT 530. 92 Bank of India v. K. Mohandas, (2009) 5 SCC 313, 337 (paras 64 and 65).

54. EQUITABLE ESTOPPEL A man may be estopped, not only from giving particular evidence, but from doing acts, or relying upon any particular argument or contention which the rules of equity and good conscience prevent his using as against his opponent. 93 The law of estoppel by representation is confined to the provisions of this section and apart from the provisions of this section there is nothing like what is called "equitable estoppel" evolved by the English Judges. The provisions of this section are in a sense a rule of evidence. 94

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The doctrine of equitable estoppel rests on the principle that where a party with full knowledge or with sufficient notice or means of knowledge of his rights and of all the material facts remains inactive or abstains from impeaching a transaction or freely does what amounts to a recognition thereof, or act s in a manner inconsistent with its repudiation so as to effect the situation of the parties so that the other party is induced to suppose that it is recognised. This amounts to acquiescence and the transaction although originally impeachable becomes unimpeachable. One cannot ordinarily be estopped to assert the direct violation of a statutory provision but equitable estoppel being a rule of justice should prevail over all other rules. 95 A representation made by one party for the purpose of influencing the conduct of the other party and acted upon by him, will, in general, be sufficient to entitle the latter to obtain the assistance of the court in equity for the purpose of realising the fruits of such representation. 96 A claim for compensation by a tenant against his landlord for improvement effected to the demised property may be rested on the doctrine of equitable estoppel though the law does not generally recognise any right in a lessee to improve the lease-hold estate and claim compensation from the lessor for the same after the expiration of the lease. But mere standing by and failure to object by the lessor when the tenant builds on the demised land is not sufficient to attract the doctrine. What is required is that there should be act ive encouragement by the landlord and an implied promise that in case the tenant was ejected he would be paid compensation. The doctrine of "equitable estoppel" familiarly known as a rule in Ramsden v. Dyson 97 is outside the provision of T.P. Act and its applicability is not excluded by Section 51 of the T.P. Act . 98 When a person in bona fide belief that a certain property belongs to him, spends money upon it and the true owner stands by allowing him to spend money and make improvements upon the land, the true owner is estopped from asserting his title to the land as against the person making improvements in such bona fide belief. 99 Petitioner did not challenge merit list published for house jobs. Subsequently same merit list was published in respect of admission to M.D. Courses. The challenge by the petitioner to the subsequent list was held to be barred on equitable considerations. 1 A person tolerated an encroachment wall obstructing passage for nine years. He commenced proceedings but claimed removal only after four years of the proceedings. The Court would not allow him do so but ordered the defendant not to obstruct the passage further by dumping material. 2 Surrender of Government of its legislative powers to be used for public good cannot operate as equitable estoppel against Government. 3 93 Ganges Manufacturing Co. v. Sourujmull, (1880) 5 Cal 669, 678. 94 Maddanappa v. Chandramma, AIR 1965 SC 1812. 95 Uma Shanker v. H.S. & I.E. Board, AIR 1974 All 290; Kisto Chandra v. Anila Bala Dasi, AIR 1968 Pat 487; State Bank of India v. Jasroop Baijnath, AIR 1974 MP 193; Abdul Kader v. Upendra, 40 CWN 1370; Hemangini Devi v. Bejoy Singh Dudharia, AIR 1924 Cal 438; Jainarain v. Jafar Beg, ILR 48 All 353; Masooma Bibi (Mst.) v. Mohammed Said Khan, AIR 1942 All 77; Ram Avadit v. Ghisa, 1942 Ori 611; Lalta Prasad v. Brahmanand, AIR 1953 All 449(DB) . 96 Kamalendu Prasad v. Sambalpure University, AIR 1976 Ori 134(DB) . 97 (1866) LRI HL 129. 98 Alagarswami v. T.J. Andhoni, AIR 1961 Mad 293; See also Hiralal v. B.C. Co. Ltd., 1957 Pat 331. For equitable estoppel under T.N. General Sales Tax Act, see Mohan Breweries & Distilleries Ltd. v. Commercial Tax Officer, Madras, AIR 1997 SC 3497, affirming Mohan Breweries & Distilleries Ltd. v. CTO, (1990) 78 STC 461(Mad) . 99 Venkataswami Naidu v. Muniappa Mudaliar, AIR 1950 Mad 53; Hari Bhushan v. Sheikh Abdul, AIR 1927 Cal 54; Mahadeo Patel v. Narayan, 1927 Nag 348; See also In wards v. Baker, (1965) 2 QB 29; Ward v. Kirkland, 1967 Ch 194; Ives (E.R.) Investment Ltd. v. High, (1967) 2 Q.B. 379. 1 Dr. Ku. Nilofar Insaf v. State of M.P., AIR 1991 SC 1872. 2 K. Satyanarayan v. K. Ramaiah, AIR 1983 SC 452. 3 Gwalior Rayon Silk Mfg. Co. Ltd. v. State of Kerala, 1972 KLT 628(FB) .

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55. DOCTRINE OF LEGITIMATE/REASONABLE EXPECTATION "The doctrine of legitimate expectation has its genesis in the field of administrative law. The Government and its departments, in administering the affairs of the country, are expected to honour their statements of policy or intention and treat the citizens with full personal consideration without any iota of abuse of discretion. The policy statements cannot be disregarded unfairly or applied selectively. Unfairness in the form of unreasonableness is akin to violation of natural justice. It was in this context that the doctrine of legitimate expectation was evolved which has today become a source of substantive as well as procedural rights....." "The doctrine of legitimate expectation can be invoked if the decision which is challenged in the Court has some person aggrieved either (a) by altering rights or obligations of that person which are enforceable by or against him in private law; (or) by depriving him of some benefit or advantage which either (i) he had in the past been permitted by the decision-maker to enjoy and which, he can legitimately expect to be permitted to continue to do until there has been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment; or (ii) he has received assurance from the decision-maker that it will not be withdrawn without giving him first an opportunity of advancing reasons for contending that it should be withdrawn. . . . . . . " "The question whether the expectation and the claim is reasonable or legitimate, is a question of fact in each case. This question has to be determined not according to the claimant's perception but in larger public interest." 4 Doctrine of promissory estoppel and legitimate expectation cannot come in the way of public interest. Indisputably, public interest has to prevail over private interest. 5 The doctrine of legitimate expectation and the principle of promissory estoppel are invoked in the cases where one expects pecuniary or any other advantages of like nature. Where the petitioner was nominated as a member of syndicate of a university to render free services and the Vice-Chancellor suppressed the nomination, he could not invoke the doctrine of legitimate expectation or the principle of promissory estoppel. 6 The concept of just expectation or promissory estoppel cannot be made applicable in strict sense to the academic courses particularly in the field of education wherein with the change and advancement, educational needs are fast changing. 7 Where no assurance was given by the corporation that allowance claimed by the respondents would be payable to them, the doctrine of legitimate expectation was not attracted. 8 Where both the parties had been acting upon the letter granting to telecast a certain fixed number of T.V. serial episodes, the letter served as an agreement between them and the applicant/party could not compel the authorities to grant extension on the basis of 'revised policy.' Neither the principle of legitimate expectation could be invoked nor that of the promissory estoppel. 9 Where in the admission notice of a Homeopathic Medical College as well as in its brochure it was given that the Central Council had given approval for upgrading the Diploma into Degree from that session and petitioner-students act ed on it and passed the diploma but no document was found to be issued by the authorities to this effect prior to the advertisement, it was held that the authorities would not be bound by mere declaration by the colleges in the absence of any rule postulating such conversion of diploma into degree course. However, in view of the settled principles of "reasonable expectancy", the students were directed to be given promotion to 2nd year degree course after completion of 1750 hours of study and on passing the examination held thereafter. 10 Where the students admitted to an autonomous college pursued the courses of study and passed the examination of Part I, II and III and the university conferred degrees on them, the university was estopped from pleading non-compliance with statutes by the college. It would also defeat the legitimate expectation of the students. The university could not refuse admission. 11 The question whether public interest will override legitimate expectation can be decided by the Govt. itself and the Court's duty is only to see that it is not irrational nor perverse. 12 However, withdrawal of a facility extended by way of concession due to arising of chaotic situation does not attract the doctrine of legitimate expectation or the principle of promissory estoppel. 13 Where the services of a lady doctor, appointed on temporary basis, and having been extended several times against rules, continued for a period of about 14 years, the principle of legitimate expectation would not be applicable as it was not shown as to how an act was done by the authorities, which gave

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an impression that the conditions attached in the original appointment letter were waived and mere continuation did not imply waiver. No legitimate expectation could be founded on such unfounded impressions. It was not even indicated as to who, if any and with what authority created such an impression. Clear statutory words override any expectation, however, founded. 14 The non-statutory guidelines issued by the Government of India are enforceable on basis of promissory estoppel and legitimate expectation. 15 4 National Buildings Construction Corpn. v. S. Raghunathan, AIR 1998 SC 2779. 5 Union of India v. International Trading Co., AIR 2003 SC 3983 (para 13) : (2003) 5 SCC 437. 6 S.D. Kapoor v. Chancellor, Jai Narain Vyas University, AIR 1997 Raj 217. 7 Nupur v. Punjab University, Chandigarh, AIR 1996 P&H 132 (para 32). 8 National Buildings Construction Corpn. v. S. Raghunathan, AIR 1998 SC 2779, relying on Food Corporation of India v. Kamdhenu Cattle Feed Industries, (1993) 1 SCC 71; Union of India v. Hindustan Development Corpn., (1993) 3 SCC 499; M.P. Oil Extraction v. State of M.P., (1997) 7 SCC 592 and Navjyoti Coop. Group Housing Society v. Union of India, (1992) 4 SCC 477 and reversing S. Raghunathan v. National Buildings Construction Corpn. Ltd., (1996) 64 DLT 509(Del) . See also V.S. Krishnan v. Westfort Hi-Tech Hospital Ltd., (2008) 3 SCC 363, 375 (para 20) : (2008) 3 Scale 184. 9 AAA Film Motion Picture Producers v. Union of India, AIR 1999 Del 178 (paras 7 and 8). 10 Varinder Singh v. State of Punjab (FB), AIR 1998 P&H 42 (paras 52 & 54) : 1998 AIHC 1109(P&H) . Also see Osmania University v. R. Madhvi, AIR 1998 AP 130 (para 4). 11 Shruti Chaturvedi v. Allahabad University, Allahabad, AIR 1998 All 291 (paras 9 and 10), relying on Mohan Bir Singh Chawla v. Punjab University, Chandigarh, AIR 1997 SC 788 : (1996) 11 JT 226(SC) . See also Jeeja P.K. v. Director, School of Distance Education University, Calicut, AIR 2000 Ker 281 (paras 10 and 11). 12 G. Sreenivasan v. Principal, Regional Engineering College, Rourkela, AIR 2000 Ori 56 (paras 10, 21, 24 and 26). 13 G. Sreenivasan v. Principal, Regional Engineering College, Rourkela, AIR 2000 Ori 56 (paras 27 and 34). 14 Chanchal Goyal v. State of Rajasthan, AIR 2003 SC 1713 (para 24) : (2003) 3 SCC 485. 15 Persis Kothawala v. L.I.C. of India, Mumbai, 2004 AIHC 2613, 2636 (para 68) (Bom). The Court relied on Narerndra Kumar Maheshwari v. Union of India, AIR 1989 SC 2138 : 1990 (Supp) SCC 440 and Amarjeet Singh Ahtumalia (Dr.) v. State of Punjab, (1975) 3 SCC 503 : AIR 1975 SC 984 (para 9).

56. WAIVER For attracting the principle of waiver there are two essential elements which should be satisfied. Firstly, waiver should be voluntary and intentional , and Secondly , there should be two parties one waiving and the other getting benefit from such waiver. In order to constitute waiver, there must be voluntary and intentional relinquishment of a right. The essence of a waiver is an estoppel and where there is no estoppel, there is no waiver. Estoppel and waiver were questions of conduct and must necessarily be determined by the facts of each case. 16 In Mohanlal v. Krish Lal 17 , Rajasthan High Court in describing the word waiver observed as under. "Waiver means relinquishment of one's own right. It is referable to a conduct signifying intentional abandonment of right. It may be express or may even be implied but should be manifest from some overt act . Waiver involves a conscious, voluntary and intentional relinquishment or abandonment of a known existing legal right. Thus benefit, claim or privilege which except for such a waiver, the party would enjoy. Even in a case if a plea is taken and evidence is not led, it would amount to a waiver."

In an eviction proceeding against the tenant on default of payment of rent, withdrawal of amount of the monthly rent of default by the landlord subsequently amounts to waiver of the benefit of getting the

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tenant's defence struck off and the tenant would be entitled to get the benefit of waiver. 18 Where the appellant had not taken any benefit of the impugned order, the plea that the appeal was not maintainable on the ground of waiver and acquiescence, was not tenable. 19 Where in pursuance of the directions of the High Court, Sharma Committee was appointed by the Central Govt. to consider the submission of parties to the H.C. proceedings, the committee after hearing them assessed their needs in respect to leasing of mining area against which no objection was filed by the appellant/party and the Govt. acted upon the recommendations of the committee, the appellant was estopped from challenging the assessment as he had waived his right by acquiescence. 20 Where a certain non-agricultural land was included in the Town Planning Scheme and the inclusion was not objected by the Government, after the reconstitution of plots, plots were allotted to the owner in lieu of that land and necessary entries were made in relevant records and the owner sold one plot to the petitioner whereat the Collector issued show cause notice to the owner raising dispute about not allotting land in lieu of Government land included in the scheme, issuing of notice was held to be illegal and barred by estoppel and by not objecting to the inclusion of the said land, the Government would be deemed to have waived its right. 21 Where the Govt. instead of initiating appropriate proceedings against an assignee of land, assigned with the condition that he would surrender the same when required by the Govt. without claiming compensation, on his selling the land in violation of the condition of the grant, initiated acquisition proceedings, the Govt. thereby waived to avail the condition of non-payment of compensation under the assignment deed and could not deny to pay compensation. 22 Where the plaintiff filed a suit for recovery against the carrier without giving prior notice under the Carriers Act , objection in respect of which was raised very belatedly, it was held that right to objection would be deemed to have been waived by the defendant. 23 Where a party participated in the proceedings of a Court for more than four years without any objection to its jurisdiction and authority, his participation amounts to waiver of the right of objection. 24 Where at the time of accession of J&K in India, the valuables left by the former Maharaja or his son in the treasury of J&K was not claimed by them as their private property for over 30 years, it was held that that was relinquishment of right or waiver voluntarily. 25 Where the objections of both the parties against the arbitration award were time-barred and a review petition before the lower Court, the only remedial course available was not utilised, the appellant was estopped from raising the plea that objections were time-barred in appeal before the High Court. 26 Where objection to the maintainability of a suit is neither pleaded nor such an issue is raised, the objection must be deemed to have been waived. 27 The party present on all dates of hearing including the date on which the auction sale was confirmed without any objection having been raised on his behalf, the doctrine of waiver would be attracted in his seeking the setting aside of the said auction sale. 28 Where the Arbitrator appointed by the Court was transferred but he continued with the arbitration proceedings and passed award after giving opportunity of hearing to the parties, who participated in the proceedings, objection on the ground of lack of authority and jurisdiction could not be allowed as the parties would be deemed to have waived their right to challenge the validity of the proceedings and the award consequently by their conduct of participating in the proceedings without any protest. 29 Where the sale/purchase of the property in suit took place in full knowledge of the plaintiff and she did not at any point of time assert her right of preemption over it, filing of suit by her claiming right of her pre-emption over suit property after three months from such knowledge was held to be not tenable as she had waived her right of pre-emption by acquiescence 30 If there was non-compliance of any non-mandatory provision or any requirement of the arbitration agreement by a party to an arbitration agreement, and though the other party had knowledge of such noncompliance but failed to object without undue delay, or within time limit, if prescribed, such a party later on could not raise objection about such non-compliance as that party would be deemed to have waived its right of objection. 31 Where a tenant alleged the waiver of right of prior purchase under the J. & K. Right of Prior Purchase Act, 1983 on the ground that offer of sale was made to the tenant, the same was rejected as it was found that nobody had made offer to any of the heirs of the original tenant with the proposed sale price which was an essential pre-requisite under the Act. 32 Where the High Court had upheld the order of the District Inspector of Schools recognising the election of the Managing Committee and also directed the parties to make representation to the D.I.O.S. regarding some other points which both the parties did, it was held that by filing representation, right to appeal could not be said to have been

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waived. 33 Where the employees of an institute, which was not a 'local authority' but an autonomous body were appointed to perform election duties and they challenged its validity, they could not be said to have waived their right to challenge the validity of such an order simply because they had once performed the election duties. The principle of estoppel was also not attracted. 34 No waiver, which would be against requisite compliances, can be countenanced. 35 In a letter of appointment of an advocate by the Govt. it was mentioned that the fee payable to him would be at the maximum rate fixed by the Govt. However, the advocate wrote a letter to accept the fee at the minimum rate provided the payments were made without delay, but the payments were not made even thereafter for months together and hence, the advocate withdrew his letter. It was held that the counsel's claim for payment at the maximum rate was not barred by waiver. 36 Where initially the tenancy was granted by the predecessor of the plaintiff for eleven months subject to renewal at the option of lessee for a further period of eleven months and thereafter with the mutual consent of both the parties, the lease was not renewed and there was no evidence to show that the predecessors of the plaintiff consented to the defendant continuing in possession of the property in suit for perpetuity, it was held that the predecessor of the plaintiff had not waived her right in any way. 37 In absence of any documentary evidence, it cannot be said that by accepting principal amount the respondents have waived their right to interest on the mere fact that various amounts were accepted by them without reserving right to claim the interest for the delayed period. 38 Where the Deputy Secretary who passed the order on behalf of the State Government, was not holding the charge of Deputy Secretary at the time of signing of the said order, and there was no material on record to show that the petitioner had conscious knowledge of such facts, it was held that the petitioner could not be estopped from raising such objection and challenging the authority or power of Deputy Secretary to pass the order by applying principle of waiver. 39 The right to claim maintenance under Section 125 of CrPC has also been extended to the wife whose marriage has been dissolved by a decree of divorce and who, being destitute, is unable to maintain herself. Being a matter of public policy this right of maintenance can not be waived by the said person by mutual agreement as the agreement will be treated as unlawful and void. 40 In a case involving international contract for supply of steel products, the parties had agreed to settle their dispute by arbitration in London and in accordance with Rules of Arbitration of Great Britain. Merely because one of the parties agreed or concurred in principle that too without prejudice to the offer made by the other party to be guided by the (Indian). Arbitration and Conciliation Act , 1996, that cannot mean waiver of the British Rules of Arbitration. 41 Where there was no stand that notice under Section 80 of CPC was issued to the State Government which was a necessary party to the litigation and the plaint was silent with regard to the nature of notice, the doctrine of waiver would not be applicable. 42 In sale in execution of a mortgage decree the mandatory requirement of the provisions of Section 72-A(2)of C.P.C., the reserve price to be fixed could not be waived by the judgment-debtor. The said provisions are not solely for the benefit of the judgment debtor, they are also intended to remove a social evil; 43 but even though a provision of law is mandatory in its operation, if such provision is one which deals with the individual rights of the person concerned and is for his benefit, the said person can always waive such a right. 44 Inherent lack of jurisdiction cannot be cured by waiver.

45

16 Municipal Corporation of Greater Bombay v. Hakunwadi Tenants' (Dr.) Association, AIR 1988 SC 233 (para 14), as cited in Karan Singh v. State of J&K, AIR 2004 SC 2480 para 26 : (2004) 5 SCC 698. See also Duli Chand v. Jagmender Das, (1990) 1 SCC 169; Pulin Behari Lal v. Mahadeb Dutta, (1993) 1 SCC 629; Vaishakhi Ram v. Sanjeev Kumar Bhatiani, (2008) 14 SCC 356, 362 (para 24). 17 Basheshr Nath v. C.I.T., Delhi, AIR 1959 SC 149. See also Maeanshetty Satyanarain v. G. Yelioji Rao, AIR 1965 SC 1405; Associated Hotels of India v. Sardar Ranjit Singh, AIR 1968 SC 933 : 1968 (2) SCR 548 and Sikkim Subba Associates v. State of Sikkim, AIR 2001 SC 2062; Mohan Lal v. Krishan Lal, 2003 AIHC 2155, 2163 (para 29) (Raj). 18 Chetan Das v. Annusuiya, 1996 AIHC 1706, at pp. 1708-1709 (Raj). 19 Hindustan Copper Ltd. v. Rana Builders Ltd., AIR 1999 Cal 229 (para 35). 20 Ferro Alloys Corpn. Ltd. v. Union of India, AIR 1999 SC 1236, at pp. 1249 and 1250. See also Babulal Badriprasad Varma v. Surat Municipal Corporation, AIR 2008 SC 2919 (paras 32-35) : (2008) 12 SCC 401 : (2008) 7 SCR 564; Bharat Sanchar Nigam Ltd. v. Motorola India Pvt. Ltd., AIR 2009 SC 357 : (2009) 2 SCC 337.

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21 Chandulal H. Ghodasara v. State, AIR 1998 Guj 84. See also St. Anne's School Society v. Urban Improvement Trust, Jodhpur, AIR 2000 Raj 70 (para 8). 22 R. Abdul Jabbar v. State of T.N., 1997 AIHC 1033 (paras 14 and 15) (Mad). 23 Auto Trade & Transport v. National Insurance Co., AIR 1998 MP 147 (paras 3 and 6). 24 Mani v. Kishan Lal, AIR 1997 Raj 19. Also see Amena Bibi v. Sk. Abdul Haque, AIR 1997 Cal 59. 25 State v. Karan Singh, AIR 1997 J&K 132. The Court referred to Provash Chandra Dalur v. Bishwarnath Banerjee, AIR 1989 SC 1834 at p. 1840. See also Karan Singh v. State of J&K, AIR 2004 SC 2480 (paras 19, 28 and 35) : (2004) 5 SCC 698. 26 Shiv Lal v. Food Corporation of India, AIR 1997 Raj 93. 27 Raj Kumar Gupta v. Des Raj, AIR 1995 HP 107 (para 8). 28 B.M. Manjunatha v. M.G. Shivanagouda, 1998 AIHC 102 (para 5) (Kant). 29 Inder Sain Mittal v. Housing Board, Haryana, AIR 2002 SC 1157 (para 13) : (2002) 3 SCC 175, Contra : waiver cannot cure inherent lack of jurisdiction, State of Haryana v . District Judge, Chandigarh , AIR 2006 P&H 69, 71 (para 11); Seth Hiralal Patni v . Kali Nath , AIR 1962 SC 199 and Sushil Kumar Mehta v . Gobind Ram Bohra , (1990) 1 SCC 193. 30 Parveen Sahani v. Sushila Devi, AIR 2004 Raj 206, 210 (para 12) : 2004 (3) Raj LW 1400 : 2004 (2) Raj LR 237 : 2004 (2) WLC 780. 31 K.S.R.T.C. v. M. Keshava Raju, AIR 2004 Kant 109, 115 : 2004 AIR Kant HCR 3061 : 2004 (1) Arbi LR 507. See also Dove Investments Pvt. Ltd. v. Gujarat Industrial Inv. Corporation, AIR 2006 SC 1454, 1458 (para 20) : (2006) 2 SCC 619; Bharat Sanchar Nigam Ltd. v. Motorola India Private Limited, (2009) 2 SCC 337, 349 (para 39). 32 Shiv Kumar Sharma v. Wazir Ajay Vir Chand, AIR 1998 J&K 100 (para 8). 33 Amar Nath Misra v. District Inspector of Schools, Ballia, AIR 1997 All 358. 34 Mohinder Kumar v. District Election Officer, Sangrur, AIR 1997 P&H 272. 35 Chanchal Goyal v. State of Rajasthan, AIR 2003 SC 1713 (para 23) : (2003) 3 SCC 485. 36 Pushpa Verma v. U.O.I., AIR 2008 Jhar 54, 59-60 (paras 27 and 28). 37 Prithi Raj Bhalla v. Industrial Cables (India) Ltd., AIR 2002 Del 539 : 2002 (99) Del LT 139 : 2002 (64) Del RJ 574. 38 Shanska Cementation India Ltd., Mumbai v. Bajranglal Agarwal, 2003 AIHC 3735, 3741 (para 7) (Bom). 39 Shambhubhai Jethabhai Patel v. State of Gujarat, AIR 2004 Guj 155, 156 (paras 3&4). 40 Sushil Kumar v. Neelam, 2004, CrLJ 3690, 3692 (paras 9 & 10) (P&H) : 2004 (3) All CrLR 505 : 2004 (3) Chand LR (Civ & Cri) 498 : ILR (P&H) 2004 (2) P&H 527 : 2004 (2) Marri LJ 506 : 2004 (2) Rec Cri R 760. 41 Aurohill Global Commodities Ltd. v. M.S.T.C. Ltd., AIR 2007 SC 2706, 2708-09 (paras 14 and 15) : (2007) 7 SCC 120. 42 Municipality through Chief Municipal Officer Raghogarh v. Gas Authority of India Ltd., AIR 2006 MP 17, 22 (para 18). The Court relied on Amar Kumar Chaurasia v. State Transport Authority, 2003 (1) MPJR 541(DB) . 43 Anto Nitto v. South Indian Bank Ltd., AIR 1998 Ker 219 (para 21). 44 Commissioner of Customs v. Virgo Steels, Bombay, AIR 2002 SC 1745 : (2002) 4 SCC 316. 45 State of Haryana v. District Judge, Chandigarh, AIR 2006 P&H 69, 71 (para 11), relying on Seth Hiralal Patni v. Kali Nath, (1961) 2 SCR 747 : AIR 1962 SC 199 and Sushil Kumar Mehta v. Govind Ram Bohra, (1990) 1 SCC 193.

57. ESTOPPEL AND WAIVER

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Estoppel and waiver are different. Estoppel is not a cause of act ion. It may, if established, assist a plaintiff in enforcing a cause of action by preventing a defendant from denying the existence of some fact essential to establish the cause of act ion; or, in other words by preventing a defendant from asserting the existence of some fact the existence of which would destroy the cause of action. Waiver, on the other hand, is contractual, and may constitute a cause of act ion. It is an agreement to release or not to assert a right. If an agent, with authority to make such an agreement on behalf of his principal, agrees to waive his principal's rights, then, subject to any other question such as consideration, the principal will be bound, but he will be bound by contract, not by estoppel. There is no such thing as estoppel by waiver. 46 The principle of waiver although is akin to the principle of estoppel, the difference between the two, however, is that whereas estoppel is not a cause of action, it is a rule of evidence; waiver is contractual and may constitute a cause of act ion, it is an agreement between the parties and a party fully knowing of its rights has agreed not to assert a right for a consideration. A right can be waived by the party for whose benefit certain requirements or conditions had been provided for by a statute subject to the condition that no public interest is involved therein. Whenever waiver is pleaded it is for the party pleading the same to show that an agreement waiving the right in consideration of some compromise came into being. Statutory right, however, may also be waived by his conduct. 47 Waiver is distinguishable from estoppel to the extent that estoppel does not operate against statute while in a case of waiver unless it involves the public at large or the statutory requirement is in public interest, a private person can waive it. Waiver is an agreement to release or not to assert a legal right while estoppel is a rule of evidence. 48 The generally accepted connotation of 'waiver' is that to constitute 'waiver' there must be an intentional relinquishment of a known right or the voluntary relinquishment or abandonment of a known existing legal right, or conduct such as warrants as inference of the relinquishment of a known right or privilege. Waiver differs from estoppel in the sense that it is contractual and is an agreement to release or not to assert a right; estoppel is a rule of evidence. Waiver may give rise to a cause of action whereas estoppel does not give rise to a cause of act ion and it is only a rule of evidence. 49 Waiver need not be founded on contract or agreement. Right of presumption can be waived.

50

Abandonment is an aggravated form of waiver, acquiescence or laches and akin to estoppel. It cannot, be sustained as facts not sufficient to sustain waiver, etc. 51 Where a candidate for selection knowing fully well the relevant facts about the members of the Selection Board voluntarily appeared for interview without raising any kind of objection against the Constitution of the Selection Board and took a chance of favourable recommendation in his favour, it was not open to him to turn around and question the Constitution of the Board when the decision was unfavourable to him. 52 Where the Electricity Board awarded a contract to a concern in which its consultant engineering company had financial interest, it was held that the petitioner who was one of the tenderers but who failed to object to the consideration of the tender made, the petitioner was estopped from questioning the award of the contract to the awardee. 53 Where the Government constituted a Committee for selection of books for schools and colleges and the publisher submitted some books for selection and some books were selected it was held that the publisher was not precluded from raising an objection to the constitution of the Committee. 54 Mere request or expression of opinion cannot amount to waiver. 55 Where the services of a railway servant were terminated without any bar to his reinstatement, the servant could not be said to have waived his right to reinstatement by acquiescence, merely because he accepted in the same railway, after termination, a job inferior to the one he was holding prior to termination. 56 A decree holder who had obtained a charge for maintenance applied for execution but omitted to mention the charge in the execution petition. Subsequently she applied to enforce the charge in subsequent execution. Held, that the omission of the decree holder to disclose the charge in the first application could hardly be treated as waiver on her part for all time. At best, it was a waiver on her part in the first execution case. 57 Withdrawal of rent deposited by tenant under an order of court does not amount to waiver of the cause of action in a fresh suit for ejectment. 58 Mere waiver, acquiescence or laches not amounting to an abandonment of his right or to an estoppel against a person cannot disentitle that person from

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claiming relief in equity in respect of his executed, and not merely executory contract. 59 The plaintiff wrote to her bank manager that she had joined nunnery and, therefore, had no claim or interest in paternal property. This did not estop the plaintiff from claiming her share. The letter did not amount to surrender or waiver. 60 A person cannot be held bound by any waiver, unless he is aware of what he is waiving and what rights he is abandoning. 61 Where there was allegation of bias against the member and objection was raised for first time before the High Court. It was held that waiver can be proved only if and after it is shown that the party knew about the relevant facts and was aware of his right to take the objection in questions and mere omission would not amount to waiver. 62 On the fact that the payment of alimony pendente lite had not been sought by the wife during pendency of proceedings before trial Court, she cannot be estopped from claiming the same at the subsequent stage of the proceedings as the obligation of earning spouse to maintain non-earning spouse during matrimonial proceedings is continuous obligation and the same cannot be construed as an estoppel and waiver of right by the wife by non-claiming the same during pendency of the proceedings before the trial Court. 63 If a defence on the basis of principle of estoppel stood waived in earlier decision, it was held that the same could not be raised in second round of litigation. 64 An order which lacks inherent jurisdiction would be a nullity and, thus, the procedural law of waiver or estoppel would have no application in such a situation. 65 Similarly, the plea of estoppel or waiver cannot defeat the claim based on a fundamental right. 66 46 Dawsons Bank Ltd. v. Nippon Menkwa Kabushiki Kaish, AIR 1935 PC 79 : (1935) 37 Bom LR 544 : 62 IA 100; Metal Press Works v. G.M. Cotton Press Co., AIR 1976 AP 205; Shiv Ditta v. Kidar Nath, AIR 1972 HP 20(DB) ; Pannalal v. Union of India, AIR 1957 Cal 156. 47 Krishna Bahadur v. Purna Theatre, AIR 2004 SC 4282 (paras 8 and 9) : (2004) 8 SCC 229. 48 Mohanlal v. Krishan Lal, 2003 AIHC 2155, 2160 (para 25) (Raj). 49 Satyanarayana v. Yelloji Rao, AIR 1965 SC 1405; Bashesher Nath v. Commr. of I.T. Delhi, AIR 1959 SC 149; Dawsons Bank Ltd. v. Nippon Menkwa Kabushiki Kaish, AIR 1935 PC 79; Sentoo v. Mani Mala Sadhu, AIR 1980 SC 155; Nathmull Tolaram v. Killa & Co., AIR 1961 Cal 65; M.P. Sugar Mills Co. Ltd. v. State of U.P., AIR 1979 SC 621; Shrikrishnadas Tikara v. State of M.P., AIR 1990 SC 1691; LIC of India, Bombay v. Ramdas, AIR 1979 Pat 124. 50 Jagad Bandhu Chatterjee v. Nilima Rani, (1970) 2 SCR 925 : (1969) 3 SCC 445; Sukhnandan Singh v. Jamiat Singh, 1971 (3) SCR 784 : AIR 1971 SC 1158. 51 Sha Mulchand & Co. v. Jawahar Mills Ltd., AIR 1953 SC 98 : 1953 SCR 351. 52 G. Sarana v. Lucknow University, AIR 1976 SC 2428. 53 Bakatawar Singh v. State of M.P., AIR 1992 MP 318. 54 J. Mohapatra & Co. v. State of Orissa, AIR 1984 SC 1572. 55 Lokenath Bhattacharjee v. Union of India, AIR 1957 Cal 576. 56 Sachindra Nath Sengupta v. General Manager N.F. Railway, ILR 1967-19 Assam 66. 57 Jata Bhusan v. Krishna Bhamini Debi, AIR 1957 Cal 204; See also T.S. Mudaliar v. Meenakshi Ammal, 1963 Mad 144. 58 Ganesh Lal v. Mohd. Ismail, AIR 1976 Pat 223. 59 Sha Mulchand & Co. v. Jawahar Mills Ltd., Salem, AIR 1953 SC 98; Shri Krishnadas Tikara v. State of M.P., AIR 1977 SC 1691; Jorawarkhan v. Mukhram, AIR 1952 Nag 40. 60 G.K. Kempegowda v. Lucinda, AIR 1985 Kant 231(DB) . 61 Nathmull Tolaram v. Killa & Co., AIR 1961 Cal 65; Shyam Sunder v. Kaluram, AIR 1938 PC 230; Rameshwar Prasad v. State, AIR 1984 Pat 61; Associated Hotels v. Ranjit Singh, AIR 1968 SC 933; Bansilal v. Hukumchand, AIR 1963 Bom 230; Rajagopal v. Muthu Lakshmi, AIR 1969 Mad 5; K.O. Verkey v. State, AIR 1969 Ker 191 (Art. 30-

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Constitution); Arifuddin v. Chittall, ILR 1973 AP 276; Eyyakku v. Unnalachan, AIR 1974 Ker 139; (compromise without conscious forgoing of statutory rights); Kota Reddy v. Chandra Sekhara, AIR 1963 AP 42; Abdul Khair (Dr.) v. James, AIR 1957 Pat 308; (Both parties unware of their rights). 62 Manaklal v. Dr. Prem Chand, AIR 1957 SC 425. 63 Debnarayan Halder v. Anushree Halder, AIR 2005 Cal 251, 255 (para 11). 64 Amita Shekawat v. State of Rajasthan, AIR 2003 Raj 230, 232 (para 8) : 2003 (2) Raj LR 243 : 2003 (2) Raj LW 1075 : 2003 (2) WLC 766. 65 Bihar State Mineral Development Corporation v. ENCON Builders (I) (P) Ltd., (2003) 7 SCC 418 (para 31) : AIR 2003 SC 3688. 66 Narmada Bachao Andolan v. The State of M.P., AIR 2008 MP 142, 160 (para 44).

58. ABANDONMENT In Sha Mulchand & Co. Ltd. (in liquidation) v. Jawahar Mills Ltd.,

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Supreme Court stated :

"Two things are thus clear, namely, (1) that abandonment of right is much more than mere waiver, acquiescence or laches and is something akin to estoppel if not estoppel itself, and (2) that mere waiver, acquiescence or laches which is short of abandonment of right or estoppel does not disentitle the holder of shares who has vested interest in the shares from challenging the validity of the purported forfeiture of those shares."

In the same decision the Supreme Court also made it clear that : "A man who has a vested interest and in whom the legal title lies does not, and cannot, lose that title by mere laches, or mere standing by or even by saying that he has abandoned his right, unless there is something more, namely inducing another party by his words of conduct to believe the truth of that statement and to act upon it to his detriment, that is to say, unless there is an estoppel pure and simple. It is only in such a case that the right can be lost by what is loosely called abandonment or waiver, but even then it is not the abandonment or waiver as such which deprives him of his title but the estoppel which prevents him from asserting that his interest in the shares has not been legally extinguished, that is to say, which prevents him form asserting that the legal forms which in law bring about the extinguishment of his interest and pass the title which resides in him to another, were not duly observed." 67 AIR 1953 SC 98 (paras 12 and 21), as cited in Karan Singh v. State of J&K, AIR 2004 SC 2480 (paras 24 and 25) : (2004) 5 SCC 698.

59. MISTAKE Where a person who has not been appointed an executor described himself as an executor under a mistake about his legal position, there is no estoppel. 68 No person can be estopped where the conduct constituting the estoppel is founded on a mistake of facts. 69 Any act done under misapprehension of legal right does not create estoppel, nor does the knowledge of the parties about their correct position. 70 Where a decree holder mistakenly treated preliminary decree as final decree, he is not estopped from moving for passing of final decree. 71 Application of a Government servant for retirement on completion of his fifty fifth year under a misconception of law, would not estop him from claiming his right under the rules, to retire at the proper age of retirement. 72 Admissions made in ignorance of legal rights do not operate as estoppel. 73 Where even after the Scale of Rates, 1992 became effective, the Calcutta Port Trust continued to levy mooring hire charges for permitting use of the places for the purpose of dismantling of ships, but the said places were permitted to be used by the respondents only on payment of berth hire charges and when the Calcutta Port Trust, by rectifying his mistake, agreed to permit the respondents to use the

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said places with clear understanding and agreement of the respondents to pay berth hire charges and not mooring hire charges which was within the full knowledge of the respondents, in the absence of any statutory prohibition the Calcutta Port Trust could not be debarred from rectifying its past mistakes. 74 68 Atisukhlal v. Natvarlal, AIR 1939 PC 238. 69 Sukumar Chatterjee v. Kiran Chandra Mitter, AIR 1964 Cal 439. 70 Shankerlal v. Narendra, AIR 1967 All 405. See also Groupe Chimique Tunisien SA v. Southern Petrochemicals Industries Corpn. Ltd., AIR 2006 SC 2422, 2426 (para 9) : (2006) 5 SCC 275. 71 Madhava Menon v. Esthapanose, AIR 1952 TC 428. 72 Vaikuntham v. Registrar Orissa High Court, ILR 1972 Cut 44. 73 Shantilal v. T.A. Tribunal, AIR 1967 Raj 138. 74 Board of Trustees for the Port of Calcutta v. Jain Udyog, AIR 2004 Cal 153, 160 (para 23).

60. WAIVER AND CONSTITUTION Fundamental rights have not been put in the Constitution merely for the individual benefit, though ultimately they come into operation in considering the individual right, but they have been put there as a matter of public policy; the doctrine of waiver and the rule of estoppel does not apply to fundamental rights. 75 There can be no estoppel against the Constitution. Its provisions are conceived in public interest and are intended to serve a public purpose. There can also be no waiver of fundamental rights. No individual can barter away the freedoms conferred upon him by the Constitution. A concession made by him in a proceeding whether under a mistake of law or otherwise, that any particular fundamental right, cannot create an estoppel against him in that or any subsequent proceeding. Such a concession, if enforced, would defeat the purpose of the Constitution. If the argument of estoppel is valid, an all powerful State could easily tempt an individual to forgo his precious personal freedoms on promise of transitory immediate benefits. Merely because an undertaking was given before the High Court in writ proceedings on behalf of the pavement dwellers that they did not claim by fundamental right to put up huts on pavements or public roads and since they had given an undertaking to the High Court that they will not obstruct the demolition of the huts after certain date they could not be estopped from contending before the Supreme Court that the huts constructed by them on the pavements cannot be demolished because of their right to livelihood, which is comprehended within the fundamental right into life guaranteed by Article 21 of the Constitution. 76 Article 14 protects us from both legislative and executive tyranny by way of discrimination. On the language of Article 14 it is a command issued by the Constitution to the State as a matter of public policy with a view to implement its object of ensuring equality of status and opportunity which every welfare State, such as India, is by her Constitution expected to do and no person can, by any act or conduct relieve the state of the solemn obligation imposed on it by the Constitution. Whatever breach of other fundamental right a person or a citizen may or may not waive, he cannot certainly give up or waive a breach of the fundamental right that is indirectly conferred on him by this Constitution mandate directed to the State. It is not for a citizen or any other person who benefits by reason of the provisions of Article 14 to waive any breach of the obligation on the part of the State. S.K. D AS , J, however, observed that it is not quite correct to say that all the provisions of Part III of the Constitution grant fundamental rights. Where a right or privilege guaranteed by the Constitution rests in the individual and is primarily intended for his benefit and does not infringe on the right of others it can be waived provided such waiver is not forbidden by law and does not contravene public

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policy or public morals. In the instant case however there is no foundation on facts to sustain the plea of waiver. 77 Constitutional right to equality extends also to a procedural matter.

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75 Behram Khurshid v. Bombay State, AIR 1955 SC 123; Sakhar Kherda Edn., Society v. State, AIR 1968 Bom 91; Bhaskar v. Arjun, AIR 1962 Ori 167; C.V. Transport Ltd. v. State of H.P., AIR 1953 HP 8; Ram Rachhpal v. Union of India, AIR 1960 Punj 439; Yousuf Ali Abdulla Fazalbhoy v. M.S. Kasbekar, AIR 1982 Bom 135; Omega Advertising Agency v. State Electricity Board, AIR 1982 Gau 37; Ekta Arvindkumar Shah v. H.S. Shah, AIR 1993 Guj 90 (para 8); Ammini E.J. v. Union of India (SB), AIR 1995 Ker 252 (para 38); Gautam Morarka (Dr.) v. State of Rajasthan, AIR 2008 (NOC) 2026(Raj) . 76 Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180 : (1985) 3 SCC 545 : 1986 Cri LR 23(SC) : (1986) 1 Cur Civ LJ 230(SC) . 77 Bashesher v. C.I.T., Delhi, 1959 SCJ 1207. See also Subhash Chand Aggarwal v. Murli Manohar Lal, AIR 2000 Del 357 (para 15). 78 Ram Gopal v. Asst. Housing Commr., AIR 1969 All 278(FB) .

61. STATUTE OR LAW FOR THE BENEFIT OF THE INDIVIDUAL There cannot be a waiver of limitation or estoppel against the plea of limitation. 79 Unless it was clear that the owners of the land (here tribals) knew about the provisions of the Land Acquisition Act or that the provisions were explained to them, waiver of right could not be presumed, more so when the compensation was accepted under oral protest.80 An ex parte decree was passed in wife's petition under Sections 50 and 13Hindu Marriage Act . That decree was set aside in appeal and the case was remanded. The husband contested the petition in the trial court on merits and also raised objection as to be territorial jurisdiction of the court. Such objection had not been raised in appeal against theex parte decree. It was held that the husband had neither waived such objection nor submitted to the jurisdiction of the court. 81 A party cannot confer jurisdiction on a court when it had none. 82 The Supreme Court by transferring the proceedings to itself under the Criminal Law Amendment Act could not acquire larger jurisdiction. The fact that the objection was not raised before the Supreme Court while giving directions cannot amount to any waiver.83 Where one of the clauses in an agreement was that all disputes between them should be deemed to have arisen at a place D and only courts at D should have jurisdiction to determine the disputes. It was held that mere filing of certain suits at another place by a party will not operate as waiver so as to estop him from moving court at D. 84 Under the Delhi Rent Control Act , the consent of the landlord for sub-letting the premises must be in writing and the same cannot be regarded as discretionary as it is in public interest, and the requirement cannot be waived.85 Where a landlord who had taken land from the Improvement Trust on condition that it would be used for residential purposes only but he lets out the same for commercial purposes and both knew that the tenancy was not one permitted under the lease, the landlord is not estopped from claiming possession on account of himself being a party to the breach of the conditions. 86 It was held that the petitioner is not estopped from challenging the resolution of municipal council whereby the term of office was restricted, though he was a party to the resolution and from which he was benefited. 87 Impossibility of compliance with the requirement as to notice under Section 80of the C.P.C. cannot lead to inference of waiver of notice. 88 A notice under Section 80of C.P.C. is for the protection of the authority concerned, and if he does not require that notice in a particular case, he can waive his right to the notice. 1 Where during the tenancy (under the Rent Control Act ) the Government who was the landlord in 1962 entered into an agreement by which tenant was to vacate premises for reconstruction and landlord to redeliver same after reconstruction. No question of policy, much less public policy, could arise. The landlord can waive the exemption benefit available for constructions made after 1-1-1951. The agreement is neither illegal nor unlawful nor defeating provisions of any law within the meaning of Section 23 of the Contract Act. 2

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Res judicata not expressly pleaded will be deemed to have been waived.

3

Non-raising of objection to secondary evidence produced amounts to waiver. 4 Where two arbitrators did not appoint in umpire though it was one of the terms of reference, but the plaintiff waived that noncompliance by appearing before the tribunal; he could not later on object to the award being invalid on the ground that of non-compliance with cl. 2 of the First Schedule to Arbitration Act . 5 Where an assessee does not raise any objection as to the competency of the assessing authority to assess, such failure amounts to waiver of objection and it cannot be raised in the civil court challenging the authority of the Income Tax Officer. 6 When parties to a suit themselves agree to a procedure to be adopted before a local commissioner and do not raise any objection, thereto before him, it is not open to them to challenge the validity of that procedure afterwards either in the court of first instance or in a court of appeal. 7 In an application for execution of decree where notice was served on the judgmentdebtor and there was no objection to jurisdiction by the judgement-debtor, the petition was dismissed for non-prosecution. A second execution petition was filed, it was held that the judgement-debtor is estopped from raising objection to jurisdiction of court in the second application. 8 Where a restoration application under Order IX, R. 13, C.P.C. was presented by the pleader's clerk, and no objection that the presentation was not proper, was raised, the objection must be needed to have been waived. 9 Where a court has jurisdiction to pass an order of attachment, but such jurisdiction is exercised in an illegal or irregular manner, the defect can be waived. 10 If A, a teacher, who stands discharged on termination of vacancy waives the right under Rule 51-A, of Kerala Education Rules to be reappointed to a subsequent vacancy with the result that B was appointed thereto, then A cannot be allowed to claim preference over B for reappointment, to a vacancy raising after the waiver of his right. 11 Where the stipulation in a contract is for the exclusive benefit of contracting party and does not create any liability against him, he can waive it unilaterally. 12 In a case under the Madras General Sales Tax Act, the department did not raise any objection when affidavits were taken in evidence by the High Court. The objection must be taken to have been waived. 13 A particular private right is matter of fact though depending upon rules of law. Waiver of such right operates as an estoppel under Section 115. 14 In view of the provisions of a complicated statute of the type of the Kerala Land Reforms Act, and the recent nature of the amendments affected, so closely prior to the disposal by the execution court, the mere omission to urge before the execution court to make a reference to the Land Tribunal would not amount to a waiver of the right.15 Relinquishment of a future right of inheritance by a Muslim heir, for consideration, may debar him from setting up his right when it act ually arises. 16 Formalities required by Section 240(3)of the Government of India Act , 1935 could be waived.17 Where a person is aware of the illegality in election proceedings, but still participates in the election, he is precluded from challenging the validity of the election. 18 Where the petitioner pleads the aid of any section in an Act or an order, it is not open to him to challenge the validity of that section. 19 Tra-Co. Buildings (Lease and Rent Control) Order, 1950, which was solely intended for the benefit of the class of persons claiming under it, does not contain any provision prohibiting such persons from contracting out of it. 20 79 Ajab Enterprises v. Jayant Yegoiles & Chemicals Pvt. Ltd., AIR 1991 Bom 35. 80 Basant Kumar Jena v. State, AIR 1995 Ori 288 (paras 3-5 and 7). 81 Janak Singh v. Raji, AIR 1970 J&K 19. 82 Mahabir v. Narain, 1931A 490 (FB); Ramlal R. & Co. v. B.C. Paul & Sons. (P) Ltd., AIR 1960 Cal 547. 83 A.R. Antulay v. R.S. Nayak, AIR 1988 SC 1531. 84 Maltex Malsters (P.) Ltd. v. Allied Engineers, AIR 1975 Del 123. 85 Shalimar Tar Products Ltd. v. H.C. Sharma, AIR 1988 SC 145.

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86 Faqir Chand v. Ram Rattan, AIR 1973 SC 921. 87 C.N. Ramaswamy v. Town Municipal Council, Chickmagalur, AIR 1988 Kant 168. 88 State of Bihar v. Jiwandas, AIR 1971 Pat 141. 1 Vellayan Chettiar v. Govt. of the Province of Madras, AIR 1947 PC 197; Kathiyani v. Neelakanta, 1979 Ker 280. 2 Lachoo Mal v. Radhye Shyam, AIR 1971 SC 2213. 3 Sukhni v. Sukhbasi, AIR 1967 All 423. 4 Tara Ram Chand v. State, 1971 CrLJ 1201(Punj) . 5 Modern Builders v. Hukmatrai, AIR 1967 Bom 373. 6 Kamakhya Narain Singh v. Union of India, AIR 1966 Pat 305. 7 Kanshi Ram v. Tarlok Singh, (1970) 2 Punj 640. 8 Ram Dayal v. Smt. Kisturi, AIR 1970 Raj 246. 9 Md. Siddique v. Nand Kishor, AIR 1952 Bhopal 41. 10 Gaya Thakur v. Bhagwat Prasad, AIR 1963 Pat 286. 11 Sarojini v. Asst. Educational Officer, (1972) 1 Ker 266. 12 Jiwan Lal v. Brij Mohan, AIR 1973 SC 559; following Dalsukh v. Guarantee Life & Employment Ins. Co., AIR 1947 PC 182. 13 State of Madras v. Habibur Rehman and Sons, AIR 1968 SC 339. 14 Kunjammalu v. Sekhara Menon, AIR 1951 Tra/Co. 127. 15 George v. Thekkekkara, AIR 1979 Ker 1. 16 Gulam Abbas v. Haji Kayyum Ali, AIR 1973 SC 554. 17 State of Assam v. Harnath Barua, AIR 1957 Assam 77. 18 Deosaran Yadav v. State of Bihar, AIR 1972 Pat 439; Gurudeo Das v. Election Officer, AIR 1972 Pat 283. 19 Madhavan v. Asst. Excise Commer., (1969) 2 Ker 71; Gulabchandra v. State Govt. of M.P., 1963 MP 301; Narasappa v. Shaik Hazrat, AIR 1960 Mys 59; Shridhar v. Collector of Nagpur, AIR 1951 Nag 90; Dhan Singh v. Madan Singh, AIR 1951 HP 22. 20 T.K. Sivarajan v. Obbkal Receiver, AIR 1953 Tra/Co. 205.

62. PLEADINGS AND PROOF Whenever a waiver is pleaded, it should be shown by the party pleading the same that there was an agreement between them, that the person waving a particular right would not press that right in future in consideration of some compromise. 21 Where in the earlier round of litigation, the appellants had themselves urged before the Supreme Court that the entire matter on merits should be determined by the High Court, having lost before the Board of Revenue, the Single Judge and the Division Bench, they could not ask the Supreme Court to interfere with the findings of facts. 22 Therefore, where a party to a litigation not only fails to invoke the doctrine of estoppel before the judge but joins issue with the opposite party upon the question and accordingly an issue is raised and evidence adduced on this question, such a party is precluded from relying on the doctrine of estoppel to prevent the other party from proving that question. 23 Where in a case involving land acquisition, the petitioner failed to take the plea of delay in taking possession vitiating the acquisition in the earlier

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petition which was unconditionally withdrawn when such a plea was available to him, he was estopped to take that plea in a subsequent petition. 24 Where a plea of waiver is not taken in a written statement, the question of waiver need not be gone into by the trial court. 25 The plea of waiver could only be raised by a party who had accepted the representation of another and had acted to his detriment in relying upon it. 26 Plea of waiver cannot be raised for the first time in writ petition. 27 In order that, a legal remedy to which a party is entitled shall be deemed to have been waived or abandoned by it in express worded or by a deed there shall be clear indication by his conduct from which it can be inferred that there has been such a waiver or abandonment. 28 Waiver of a right cannot be lightly inferred and something more than inaction of the right holder in exercising the right is necessary. 29 Waiver may be express or implied. It may be intentional or due to inaction or gross-carelessness or absence of diligence on the part of the party having the right or advantage in his favour. The party having such right or privilege has a discretion to exercise the same. 30 A person cannot be said to agree unless there is a free and voluntary consent. Mere promise in an attempt to avoid imminent threat to one's property does not amount to waiver. 31 The rule of estoppel or waiver cannot be applied against retrenched workmen who have no freedom to refuse payment in view of their financial position caused by the retrenchment. 32 The defendant once having admitted the existence of certain fact in the written statement cannot be allowed to take the inconsistent plea which plea will irretrievably prejudice the plaintiff's case. 33 Where in a suit for possession the appellant claimed title to the suit property under a will and set up the plea of adverse possessions it was held that both the pleas, being alternative, were permissible.

34

21 R.C. Thakkar v. Gujarat Housing Board, AIR 1973 Guj 34. 22 Commissioner of Excise v. Manoj Ali, (2006) 13 SCC 88, 100 (para 37). 23 Rajendra Ram v. Devendra Doss, AIR 1973 SC 268. 24 Raj Kumar v. Union of India, 1998 AIHC 1419 (para 7) (Del). See also Haji Yaseen v. Commissioner, Indore, 2000 AIHC 1952 (para 3) (MP). 25 Mangal Sen v. Kanchhid Mal, AIR 1981 SC 1726. 26 Waryam Singh v. Chanan Singh, AIR 1960 Punj 308. 27 M.P. Sugar Mills Co. Ltd. v. State of U.P., AIR 1979 SC 621. 28 Kanniah Gupta v. Subbarami Reddi, 1952 Mad 687. 29 Ram Raksh Pal v. Brij Nandan, AIR 1967 All 325. 30 Chotalal v. Ram Golam, AIR 1975 Cal 436. 31 Tej Ram Chand v. State, (1970) 2 Del 681; Collector Customs & Central Excise v. Hindustan Motors, AIR 1975 Cal 368; Azra v. Silton Hotel, AIR 1975 Kant 225. 32 B.N. Elias & Co. v. Fifth Industrial Tribunal, AIR 1965 Cal 166. 33 Surendra Bhatia v. Punam Bhatia, AIR 2001 Raj 338 (para 35); See also Jawan v. Mewa Singh, AIR 2001 P&H 344 (paras 21, 22, 23, 25, 33, 34 and 43); Steel Authority of India Ltd. v. U.O.I., AIR 2006 SC 3229, 3234 (para 26) : (2006) 12 SCC 233. 34 A. Krishnappa v. Thimmarayappa, AIR 2001 Kant 470 (para 6), holding Danappa Revappa Kolli v. Gurupadappa Mallappa Pattanashetti, ILR 1990 Kant 610 not a good law in view of Karnataka Wakf Board Bangalore v. State of Karnataka, AIR 1996 Kant 55 : 1995 (4) Kant LJ 326.

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865

Ratanlal & Dhirajlal: Law of Evidence, Updated 23rd Edition/THE INDIAN EVIDENCE ACT (ACT 1 OF 1872)/PART III PRODUCTION AND EFFECT OF EVIDENCE/CHAPTER VIII ESTOPPEL/S. 115.

63. FINDING OF FACT The prima facie findings recorded by a single Judge at the stage of passing an ad interim order, would not bind the same judge much less would they bind the appellate Court or the parties thereto at subsequent stage of the same proceeding because it cannot operate as issue estoppel. 35 35 Modi Entertainment Network v. W.S.G. Cricket PTE Ltd., (2003) 4 SCC 341 (para 27) : AIR 2003 SC 1177. See also Bongaigaon Refinery & P.C. Ltd. v. Girish Chandra Sarmah, AIR 2007 SC 2860, 2864 (para 9) : (2007) 7 SCC 206.

64. COMPOSITE FEE Where composite fee was levied from the operators of the tourist transport vehicles for promoting tourism and the operators were spending substantial money on expensive vehicles and undertaking work of transporting tourists, the authorities were estopped from levying anything beyond the composite fee. 36 36 Indo Canadian Transport Co. v. Union of India, AIR 1999 P&H 130 (para 28).

65. PAYMENT OF INSTALMENTS A right created by contract, for example, in a consent decree may be waived. This waiver can be either express or implied. Where a party has two rights, the mere exercise of one right does not amount to waiver of the other but if there are alternative rights, the exercise of one right may imply that the party has waived to exercise of the other. 37 Life Insurance Corporation of India asserted that the policy lapsed since second instalment of premium was not paid. But it accepted 3rd, 4th and 5th instalments and also second with interest. It was held that by its conduct L.I.C., waived its right to claim the policy as lapsed; the nominee is entitled to the amount after the death of the assured. 38 Where an instalment decree was passed with a default clause, and there was a default by the judgement-debtor, the decree holder is not estopped from re-electing in favour of payment of instalment. 39 Where the allottee of a flat by the Delhi Development Authority paid the final instalment computed on the current cost basis under protest, otherwise he would not have got the possession, by reason thereof he never gave up his right to question the act ion on the part of the DDA as the rule of estoppel would have no application in a case. 40 37 Humayun Properties v. Ferrazzinis Ltd., AIR 1963 Cal 473. 38 L.I.C. of India v. Bhallah, AIR 1989 Pat 269. 39 Devi Dayal v. Ram Kumari Devi, AIR 1961 All 107; See also Rahmath Unnisa v. Shimaga Co-op. Bank, AIR 1951 Mys 59; Kunjammal v. Sekhara Menon, AIR 1951 Tra Co. 127. 40 Delhi Development Authority v. Joint Action Committee, Allottee of SFS Flats, (2008) 2 SCC 672, 696-97 (para 59) : AIR 2008 SC 1343.

66. WAIVER-NOTICE Where a restoration application under Order IX, Rule 13, C.P.C. is presented by the pleader's clerk, and no objection that the presentation was not proper, was raised, the objection must be deemed to have been waived.41

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Notice under Section 34,Income-tax Act , 1922 can be waived by an assessee. 42 Waiver of notice under Section 34,Income-tax Act (1922) by counsel does not bind the client. 43 Plea of want of notice under Section 106 can be waived. 44 Where a tenant was given notice to quit and vacate on the last day of English calendar month (monthly tenancy) and an objection, that the notice was invalid on the ground that period of notice should have commenced from the day of month in which tenancy was created, was not taken by the tenant in his pleadings. It was held that the tenant was estopped from contending that notice did not coincide with the last day of calendar month of tenancy and notice was held to be valid. 45 Notice under Sections 49 of Punjab Municipal Act (1911) is mandatory. If the plea as to want of notice was not taken in the written statement, amendment can be allowed even at the stage of revisions. 46 Where the owner filed a complaint without issuing notice which was mandatory under Rule 15(2) framed under the Bombay Provincial Municipal Corporations Act, Section 457, the principle of waiver applied. 47 A notice terminating tenancy and demanding arrears of rent was issued under Bombay Rents, Hotel and Lodging House Rents Control Act (47 of 1947) (as applied to Gujarat). Subsequently a second notice fixing another date for termination of tenancy was given. Landlord, by giving second notice, waived the termination of contract brought about by the first notice. 48 Where the assessee filed returns and books of account and other evidence in support of the returns in response to notice issued under Sections 148 and 143(2) of Income-Tax Act 1961, he cannot challenge the notice as he is estopped by acquiescence.49 Acceptance of smaller sum without prejudice to balance of claim does not create estoppel. 50 Merely because a person had waived his remuneration for earlier periods, it does not follow from it that he waived his remuneration for period subsequent to such waiver. 51 Where the appellant's did not challenge the auction sale of their assets but claiming bigger amount though they accepted smaller amount given under the award, it was held that there is no estoppel against them on account of accepting lesser amount and there is no estoppel by auction. 52 41 Md. Siddique v. Nand Kishor, AIR 1952 Bhopal 41. 42 Tansukhrai v. I.T. Officer, AIR 1961 Assam 35; Commer. of I.T. v. Kapasi, (1961) 2 Ker 32. 43 B.K. Gooyee v. I.T. Commissioner, AIR 1966 Cal 438. 44 Batoomal v. Rameshwar Nath, AIR 1971 Del 98; Ram Pratap v. Birla Cotton Spl. & Wig. Mills, AIR 1973 Del 124; K.N. Ramakrishnan v. Keral Chand, AIR 1971 Mad 150; Boota Singh v. Roshanlal, AIR 1971 Punj 269. 45 Gurdit Singh v. Tata Iron & Steel Co., AIR 1965 Pat 311. 46 New Delhi Municipal Committee v. Ramsaran Dass, (1972) 1 Del 708. 47 Municipal Corporation, Ahmedabad v. Oriental F&G Insurance Co. Ltd., AIR 1994 Guj 167 (paras 66 and 67). 48 Thakkar Manganlal Popat Lal v. Thakkar Bhikhan Bhai Devji, ILR 1972 Guj 24. 49 Shyamlal Ghashal v. Income Tax Officer, (1972) 1 Cal 455. 50 D ipc hand v. Abhechand & Co., AIR 1962 Cal 166; Union of India v. Babulal Firm, AIR 1968 Bom 294; Rupeshwari Debi v. Lokenath Hosiery, AIR 1962 Cal 608. 51 Krishna Swami v. S.C. Construction Pvt. Ltd., AIR 1964 Mad 191; See also Workers Textiles Mills v. Dhanalakshmi Mills, AIR 1961 Mad 212; Tata L. & E. Co. v. Kartar Singh, AIR 1961 Pat 37. 52 Budh Ram v. Om Prakash, (1969) 1 All 817.

67. ESTOPPEL AGAINST STATUTE In CIT v. B.N. Bhattachrjee , 53 the Court said :

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"The soul of estoppel is equity, not facility for inequity nor is estoppel against statue permissible because public policy animating a statutory provision may then become the casualty. H ALSBURY has noted this sensible nicety 54 "Where a statute, enacted for the benefit of a section of the public, imposes a duty of positive kind, the person charged with the performance of the duty cannot, by estoppel, be prevented from exercising his statutory powers." 55

The principle of estoppel cannot override the provisions of a statute. 56 The principle of estoppel cannot be invoked to defeat the plain provisions of a statute. 57 Doctrine of promissory estoppel cannot be invoked for the enforcement of a 'promise' made contrary to law 58 or constitutional provisions. 59 Promissory estoppel cannot be invoked against a statute imposing ceiling on incentive retrospectively. 60 There is no estoppel against an Act of Legislature 61 or ordinance. 62 The rule of promissory estoppel cannot be availed to permit or condone a breach of law. It cannot be invoked to compel the government to do an act prohibited by law. It would be going against the statute, which is not permissible under estoppel. 63 Estoppel only applies to a contract inter partes and it is not competent to parties to a contract to estop themselves or any body else in the face of an Act . 64 Where a statute imposes a duty by a positive action, estoppel cannot prevent it. Estoppel is only a rule of evidence which can be invoked under special circumstances but is not available to release a party from the obligation to obey a statute. 65 Where the document of family arrangement was required to be registered to be admissible in evidence, parties could not be estopped from questioning its validity though they were act ing upon it and benefiting by it. There is no estoppel against statute. 66 Nor it can be used to prevent legislative and executive organs of the State from performing their functions. Estoppel is not available for preventing a Municipal Committee from acting according to law. A Municipality granted exemption from octroi for developing a Mandi , but subsequently revoked it. It again granted exemption in keeping with the terms of the original sale of plots, but again levied the tax. Even so a claim of estoppel against its legislative power was not allowed. 67 Where a person had act ed on the terms and conditions of a code for several years even he was not estopped from challenging its validity. 68 Where an exemption from tax is granted to save an industry, the doctrine of estoppel is not attracted. 69 There can be no estoppel against a statute. If the law requires that a certain tax be collected, it cannot be given up, and any assurance by the Government that it would not be collected would not bind the State Government, whenever it chooses to collect it. 70 Even if it is assumed that the petitioner had the necessary knowledge of the proposals for the imposition of water tax this does not take away his constitutional right of challenging the validity of the new taxation measure. 71 The principle of estoppel cannot be made available in case of imposition of a tax not authorised by law simply because there was some discussion between the Govt. and the timber mill owners/the victims of impost. 72 There can be no estoppel in the matter of a statutory levy. The conduct of the Government in accepting the tax for September, 1950, and for the subsequent periods does not estop them from demanding tax in respect of August, 1950. 73 If a party, in order to clear the goods from customs, has given the classification under a particular item of tariff head in accordance with the wishes of the authorities or even under misapprehension, and if the law allows him a right to ask for refund on proper appraisement and the party cannot be estopped from asking for refund. 74 Where a classification of a product as a residuary item was approved by the department for purpose of levy of excise duty, it would not estop the department from revising that classification according to law. 75 When statute imposes positive duty upon public officers in the general interest of public, exemption from duty cannot be claimed by pleading estoppel. 76 Neither the Government nor any subordinate department has a right to modify the provisions of a statute and to recover less on the basis of such modification to the detriment of public treasury, under the Customs Act . The department is not estopped from demanding statutory amount of Customs Duty.77 Where the petitioners were permitted to install captive power plants in their industries under Sections 44 & 45of the Electricity Act , 1948 which do not prohibit imposition of conditions, by the State, it was held that the State could not be estopped from imposing conditions additional conditions and cess in exercise of its statutory powers. 78 Section 32(f)(1)(a) & (b) of the Bombay Tenancy and Agricultural Lands Act (67 of 1948) provided that in case of the landlord being a minor, he could terminate the tenancy of the tenant within one year of his attaining majority

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after intimating the tenant of his attainment of the majority, failing which the tenant would be entitled to exercise his right to purchase the land under his tenancy. In the instant case the landlord failed to intimate about his attainment of majority and his intention to terminate the tenancy of the tenant, during the said statutory period of one year. It was held that the landlord would be estopped to contend that the tenant had forfeited his right to purchase the land especially when the tenant had expressed his intention to purchase the land.79 Where the petitioner had not studied Sanskrit in Intermediate and the condition precedent for admission to B.A.M.S. course was that the candidate must have passed intermediate with Sanskrit, it was held the management could not be estopped from denying admission to him as the prescribed condition is a legal requirement. 80 Where the students in polytechnic failed to put in minimum prescribed percentage of attendance but the Principal permitted them to take the examination, their examination having been cancelled the students could not plead the principle of promissory estoppel as permission to take examination was contrary to the provisions of the statute and even contrary to the provisions of equity. 81 The Supreme Court held that the expression "wife" means legally wedded wife. In case of marriage of a woman with a man already having a living spouse, husband is not estopped from questioning it as a nullity and the second wife's right to maintenance as there is no estoppel in questioning the marriage. 82

If the terms of a Government notification are clear, the interpretation put upon it by an officer of the rank of an Assistant Collector of customs would not be binding on the Government so as to estop them from claiming afterwards that interpretation was wrong. 83 When the facts are fully set out and admitted, a party's opinion about the legal effect of those facts is of no consequence in construing the section. No estoppel arises by reason of the admission of the party as to such effect. 84 There can be no estoppel on a statement of law relating to the nomination of a person as a chela under the terms of a will. 85 No person can be precluded from pleading that certain orders are illegal or invalid, because the question as to whether orders are illegal or invalid is a pure question of law and there can be no estoppel against law. 86 An undertaking was given before the High Court in a writ proceeding on behalf of the hut and pavement dwellers that they would not claim any fundamental right to put up huts on pavements or public roads and that they would not obstruct the demolition of the huts after a certain date. They were not estopped from contending before the Supreme Court that their huts could not be demolished because of their right to livelihood comprehended in Article 21. 87 The provisions of Act 299 of the Constitution which are mandatory in character require that a contract made in exercise of the executive power of the State should satisfy three conditions laid down therein. Failure to comply with these conditions the contract would be void and unenforceable. There is no question of estoppel in a case where there is contravention of the provisions of Article 299(1) of the Constitution. 88 Though the plea of noncompliance with Article 299 of the Constitution is not raised earlier in the proceedings, a party is not estopped from raising it for the first time in revision under Section 115,C.P.C. There cannot be any estoppel against mandatory provisions of the Statute. 89 Where an exemption of stamp duty on sale deed of the land was claimed by the petitioner under Exemption Notification issued by State Government under Sections 9 of the Karnataka Stamp Act (34 of 1957) by submitting a certificate in respect of factual position of land issued by competent officer alongwith the said sale deed before Sub-Registrar at the time of registration of the document, and Sub-Registrar after accepting the same acted upon it, the Sub-Registrar could not be estopped from resiling from his stand as the certificate itself, being in respect of the land in question was not covered by the said notification, was not having the effect of granting exemption under the Notification which was issued under Section 9 of the Act having statutory character and no plea of estoppel could be put forth by the petitioner on the basis of the conduct of the Sub-Registrar for interpreting such a statutory Notification. 90 The plaintiff and the defendant exchanged adjacent plots of land each worth more than a hundred rupees by means of an unregistered deed, both believing that they had effected a valid transfer. Possession was taken by each party and defendant began to erect a very costly building placing a wall thereof in the land he had acquired in exchange. While the building was in progress, the plaintiff

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demanded and obtained Rs. 525 from the defendant on the ground that the plot he parted with was found to be more in extent than the defendant's. After the completion of the building the plaintiff sued the defendant for recovery of his plot after removal of the defendant's building on it. The defendant pleaded that the plaintiff was estopped by his conduct from recovering the plot. It was held that the plaintiff was not estopped and that he was entitled to recover his plot owing to the absence of a registered deed of exchange as required by Sections 54 and 118 of the Transfer of Property Act. 91 Even assuming that the executive by an order of Government had made a representation that an Act would not be brought into effect earlier than a certain date, that would not prevent the Legislature, when the legislation was actually introduced, from considering and makin it a law and bringing it into effect from a date earlier than what was notified in the Government order; 92 but where in a selection done by U.P.S.C. recommendations for appointment were made by the Commission in batches and the Commission had accepted the stand of the candidates that the period of validity of the waiting list was to be computed from the date of the last recommendation in the particular case but subsequently it took the stand that the period of validity was to be computed from the date when the first recommendation was made by the Commission and hence, the validity of the waiting period was over. The Supreme Court held that, though there cannot be any estoppel in law, a statutory body like the commission could not blow both hot and cold at the same breadth and there should be consistency it in its view. It is required to be more vigilant and constructive in its approach while dealing with the careers of a large number of candidates. 93 Any interpretation by the State Government of a legislative enactment, even though it has resulted in a citizen changing his position to his detriment cannot operate as an estoppel. 94 Where the Central or State Government Amendment of the Land Acquisition Act provides uniform rate of interest at 4% in Land Acquisition cases, the terms of the Acquisition Manual do not operate as estoppel against Government.95 Rules 28(1-A) and 57(2) of the Mineral Concession Rules (1949) being statutory rules, requirement of these rules cannot be waived by the State Government. 96 There is no basis for application of rule of estoppel to a matter arising under Section 5-Aof Bihar Private Irrigation Works Act as amended in 1939.1 Where a suit for rent is filed by one co-sharer alone without impleading others, defendant is not estopped from raising statutory bar under Section 246(1), Tenancy Act . 2 An occupancy right, once accrued, can be extinguished only in the manner provided in the C.P. Tenancy Act and not by mere rule of estoppel based on subsequent conduct. 3 Pursuant to a money decree based on a compromise, the land of a Santal was sold in execution. As the right of restoration is given by statute, it was held that the judgement-debtor was not barred by estoppel from applying for restoration of possession. 4 If a statute having prescribed certain thing, itself provides for exemption therefrom under certain circumstances or authorises some body to exercise the power of exemption then any thing done not in terms of those conditions or qualifications will not be ultra vires and will be said to be merely irregular and to such an act, the doctrine that there is no estoppel against statute will have no application. 5 Where fair rent is fixed by the consent of parties, a second application for the same relief is barred previous order operates as estoppel, by conduct. Plea that estoppel could not lie against a statute would not apply in this case. 6 A tenant sublet accommodation with the oral permission of the landlord. As sub-letting is unlawful under Clause 12-A of C.P. and Berar letting of Houses and Rent Control Order, 1949, oral permission by the landlord cannot operate as estoppel or waiver of benefit of the prohibition. The Landlord is not estoppel from pleading that subletting is unlawful. 7 Where a minority educational institution accepted the terms and conditions contained in the code for many years, they are not estopped from challenging the validity of the provisions of the code as no estoppel arises against statute. 8 A statute barred benefit of a regulation to improve prior performance in examination. A candidate who had failed earlier at M.A. examination was granted an admit card. It does not estop the university from denying the benefit, as the statute envisages a total bar. 9 Non-publication of the application for a permit under the Motor Vehicle Act by the authority is in violation of a mandatory provision. If a petitioner concedes the claim of the respondent bona fide believing publication of his application, the concession made by the petitioner is not binding as there is no estoppel against the statute. 10 Suit by an agent against the owner on the basis of Sections 8 of the Carriers Act (1865) is not maintainable even though no objection to maintainability is raised in the statement. 11

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In a case under Madras Hereditary Village Offices Act, 1895, it was held that the right recognised in Section 6(1) of that Act was a legal right and was enforceable and the same accrued to P's family in 1948 when division of the village took place and the order dated 31-1-1950 appointing D to the post of Karanam gave rise to the cause of act ion for the suit; Section 6(1) of the Act was held void by the S.C. in 1961; that since D at no stage had put forward any hereditary right in himself to be appointed to the post of the Karanam he was not estopped from contending that Sections 6(1) was opposed to the Constitution of India. 12 In an eviction suit under the Bihar Buildings (Lease, Rent and Eviction) Control Act (1947), though objection under Section 11 of that Act was not raised, it can be raised in execution proceedings. There is no estoppel against statute. 13 If the position of the occupier and the payment of rent by him do not give him the status of a tenant, the Municipal Committee in accepting rent is not estopped under the Punjab Municipal Act . 14 Notice to quit was sent telegraphically by a landlord to his tenant. It was held that the tenant, was not estopped from contending that the notice was invalid, though he had replied, as there cannot be an estoppel against statute. 15 Where a tenant agrees, under consent decree, to surrender possession after one year and the landlord files execution after expiry of one year for recovery of possession, the tenant is not estopped from claiming benefit under clause 9(1) of Travancore-Cochin Buildings (Lease and Rent Control) Order 1950. 16 Where a sale deed was followed by an agreement that the vendee or his heirs should not alienate the property, it was held that the bar of estoppel or waiver would not operate against the vendee as the agreement is in violation of Section 10T.P. Act and Section 23 of the Contract Act. 17 A party is not estopped from challenging the sale contrary to the Partition Act after it had taken place for there cannot be any estoppel against a statute.18 When a scheme of development of land and allotments thereunder are found to be in contravention of any law and contrary to general public interest, no claim based on so called vested right can be countenanced and neither the doctrine of 'legitimate expectation' nor 'estoppel' applies, even though full/part price was paid or formal possession given. 19 Whether or not the appellant agreed or participated in the meeting which was held before introduction of the voting machines if such a process is not permissible or authorised by law he cannot be estopped from challenging the same. 20 Statement made under misapprehension of legal right does not create estoppel. 21 A constructed a building as a residential one and let it out to the Government which located its office in it without any written permission from the Controller for converting the residential building into a nonresidential one. Later the building was sold by A to B who filed a suit against the Government for eviction on the ground of bona fide requirement for his own residence. It was held that estoppel would not arise as the building continued to be a residential one by the absence of any written permission for conversion of the residential building into non-residential building by the controller as required by statute. 22 Where a public limited company doing forward contracts business, in a special meeting passed a resolutions depriving certain class of its shareholders of their right to vote and to declare and receive dividend etc., it was held that neither their absence at the meeting nor their failure to object at the subsequent elections held in accordance with the amended Articles of Association estopped them from raising the plea under Sections 397 and 298 Companies Act , the rights sought to be deprived being fundamental statutory rights conferred on them under the Companies Act which no shareholder could be permitted to barter away. 23 Where the laws of money lending or monetary security are involved, the test is, whether the law that confronts estoppel can be seen to represent a social policy to which the court must give effect in the interest of the public generally or some section of it. 24 An agreement regarding raising of objections to the validity of a will or otherwise, is no concession on a point of law and does not have the effect of estoppel against statute. 25 Where there was no provision under Land Acquisition Act to provide alternative accommodation to the owners/occupants of the property sought to be acquired, it would not confer any legal right on the petitioners or any legal obligation on the part of the State to fulfil any assurance given by the State to them on humanitarian ground to provide any alternative accommodation, hence the petitioners' plea could not be accepted that, unless and until any alternative accommodation was provided to them, they would not vacate the premises sought to be acquired. 26

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There can be no doubt that ordinarily the doctrine of promissory estoppel would not be applied against a statute, but, while dealing with a question as to whether an act ion on the part of the State to make a representation is contrary to a statute or not, a distinction should be born in mind between an act which goes clearly contrary to the mandatory provision thereof and a case where irregularities have been committed. 27 Applicability of the doctrine of promissory estoppel would depend upon various factors including the nature and purport of the Statute, the object it seeks to achieve, the purpose for grant of concession/exemption etc. 28 53 AIR 1979 SC 1725 at 1738 : (1979) 4 SCC 121. 54 H ALSBURY ' S L AW OF E NGLAND (para 1515) (Volume 4). 55 Maritime Electric Co. Ltd. v. General Dairies Ltd., 1937 AC 610; Hudson v. Hudson, (1948) 1 All ER 748(PC) . 56 Ariff v. Jadunath Majumdar, AIR 1931 PC 79; followed in Kisto Chandra v. Anila Bala Dasi, AIR 1968 Pat 487. 57 Jagadbandhu Saha v. Radha Krishna Pal, (1909) 36 Cal 920; Abdul Aziz v. Kanthu Mallik, (1910) 38 Cal 512; Dhanu Pathak v. Sona Koeri, (1936) 15 Pt 589(SB) ; Ma Mo E v. Ma Kun Hlaing, ILR (1941) Ran 309; Workmen v. Hindustan Lever Ltd., AIR 1984 SC 516; Steuart & Co., Ltd. v. Mackertich, AIR 1963 Cal 198; Baghat Transport Service Ltd. v. State of H.P., AIR 1951 HP 36; Municipal Committee v. Shah Raiasi Hirji & Co., AIR 1960 MP 217; State of Bihar v. Dukhulal Das, AIR 1962 Pat 140; Vanguara Fire & General Insurance Co. v. Sarladevi, AIR 1959 Punj 297; Virendra Kapur v. University of Jodhpur, AIR 1964 Raj 161; Qura Bali v. Govt. of Rajasthan, AIR 1960 Raj 152; Bhanwar Lal v. Mangi Bai, AIR 1955 Raj 129; J.J.S. Rodrigues v. Union of India, AIR 1967 Goa 169; Liberty Talkies v. State of Gujarat, AIR 1968 Guj 280; Commer. of H.R.E. v. Basta Patra, AIR 1952 Ori 152; Indra Bahadur Singh v. Bar Council of Allahabad, U.P., AIR 1986 All 56; Hansraj v. Pyarchand, (1957) 7 Raj 87; Ramesh Narang v. Rama Narang, 1995 Cr LJ 1685 (para 13) (Bom); K.M. Seth v. Competent Authority & Addl. Collector (Ceiling), Rajkot, AIR 1994 Guj 130 (para 18); Aliakutty Paul v. State, AIR 1995 Ker 291 (para 24); Vishnu Kumar Khatar v. State (FB), AIR 1995 Pat 168 (paras 15 and 16); Jagdish Chandra Mitra v. District Municipal Election Officer, 1996 AIHC 101 (para 7) (Cal); N.S.V. Ramanuja Jeer Swamigal v. State of T.N., 1996 AIHC 204 (para 27) (Mad); Estate Manager, Housing Deptt. v. Dilip Kumar De, 1996 AIHC 4562, at p. 4569 (Cal); Hukam Chand v. Om Chand, 1998 AIHC 1509 (para 8) (P&H); validity of document required to be registered can be challenged, if unregistered, even if parties to it acting and benefiting by it, Bankey Bihari v. Surya Narain, AIR 1999 All 167 (paras 8 and 13); Committee of Management, L.B.S.S. Degree College v. Gorakhpur University, 1999 AIHC 3907 (paras 18 and 19) (All); Punjab Travel Co., Ahmedabad v. Union of India, AIR 2000 Raj 294 (para 21); Mudunri Surye Narayana Raja v. State, 2003 CrLJ 75(Kant) : 2002 AIR Kant HCR 3196; Nazirkhan Mohammed v. Damodhar M. Patri, 2003 AIHC 3297, 3305 (para 26) (Bom); Jit Sing v. Piara, AIR 2003 P&H 258, 259 (para 4); Commissioner of Income Tax, Madras v. Firm Muar, AIR 1965 SC 1216; Indian Charge Chrome Ltd. v. U.O.I., (2006) 12 SCC 331, 342-43 (para 18); The Saharanpur Electric Supply Co. Ltd. v. State of U.P., AIR 2007 (NOC) 145(All) : 2006 (6) ALJ 588(DB) ; Saini Alloys Private Limited v. U.P. Power Corporation, Lucknow, AIR 2007 (NOC) 978(All) : 2007 (2) ALJ 5; State of Uttar Pradesh v. Uttar Pradesh Rajya Khanij Vikas Nigam Sangharsh Samiti, (2008) 12 SCC 675; Prabir Kumar Moitra v. Maitraiee Rooj, AIR 2009 (NOC) 1546(Cal) ; Krishi Upaj Mandi Samiti, Beawar v. Shree Gopal Products, AIR 2009 Raj 121 (paras 5 and 6). 58 Ashok Kumar Maheshwari v. State of U.P., AIR 1998 SC 966, p. 969; Direction of remanding case by appellate authority against statutory provisions, ab initio void, no estoppel, National Textile Corpn. v. Bank of Madura Ltd., AIR 1998 Mad 113 (para 22); Phoneix Impex v. State, AIR 1998 Raj 100, p. 103; Jalandhar Improvement Trust v. Sampuran Singh, AIR 1999 SC 1347 (para 13); Abu Zaid v. Principal, Madarsa-Tul-Islah, Saraimir, Azamgarh, AIR 1999 All 64 (para 12); Shiv Kr. Pandit v. State of Assam, AIR 1999 Gan 68 (para 10); State of Gujarat v. Vishnu Automobiles, AIR 1999 Guj 92 (para 21); Ganga Retreat & Towers Ltd. v. State of Rajasthan, (2003) 12 SCC 91 (para 41); Baldev Singh Rana v. State of H.P., AIR 2002 HP 41, 47 : 2001 (1) Shim LC 473. 59 Lohia Mandilia v. C.E.S.C. Ltd., AIR 2003 Cal 233, 239 : 2003 (2) Cal HN 215, relying on Central Inland Water Transport v. Brojnath Ganguly, AIR 1986 SC 1571 : (1986) 3 SCC 156, followed in L.I.C. India v. Consumer Education & Research Centre, AIR 1995 SC 1811 : (1995) 5 SCC 482. 60 Sree Rayalaseema Alkalies & Allied Chemicals Ltd. v. Govt. of A.P. (FB), AIR 1993 AP 278 (paras 40, 41 and 42). 61 Shridhar Balkrishna v. Babaji Mulla, (1914) 16 Bom LR 586 : ILR 38 Bom 709; Ahmed Bhauddin v. Babu, (1929) 31 Bom LR 778 : ILR 53 Bom 676; Mathra Parshad & Sons. v. State of Punjab, AIR 1962 SC 745; B.N. Elias & Co. v. Fifth Industrial Tribunal, AIR 1965 Cal 166; Gopi Krishan v. Anil Bose, AIR 1965 Cal 59; Gadigeppa v. Balangowda, AIR 1931 Bom 561; Development Control Rules have statutory force, no estoppel against them, Pune Municipal Corporation v. Promoters and Builders Association, AIR 2004 SC 3502 (paras 5 and 6). No estoppel against rules Sudarshan Trading Co. Ltd. v. Government of T.N., AIR 2004 Mad, 124, 127 (para 17); T O THE SAME EFFECT , Anees Ahmad v. University of Delhi, AIR 2002 Del 440. No estoppel against statute, Devasahayam v. P. Savithramma, (2005) 7 SCC 653, 664 (para 33) : AIR 2006 SC 779; T.N.E.B. v. K.S.V. Cotton Mills Pvt. Ltd., AIR 2005 Mad 400, 405 (para 29); Promoters & Builders Association of Pune v. Pune Municipal Corporation, AIR 2007 SC 1956, 1961 (para 10) : (2007) 6 SCC 143; Ajay Kumar Agrawal v. O.S.F.C., AIR 2007 Ori 37, 41 (para 20); Samarendra Nath Dash v. Utkal University, AIR 2007 (NOC) 1046(Ori) ; U.P. Power Corporation Ltd. v. Sant Steels & Alloys (P) Ltd., (2008) 2 SCC 777,

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802-03 (para 34) : AIR 2008 SC 693; Vipin Kumar Dubey v. Mahatma Gandhi Chitrakoot Gramodaya Vishwavidyalaya Chitrakoot, Satna, AIR 2009 (NOC) 441(MP) . 62 Bhaskar Tiwari v. Vice-Chancellor , U.P. Technical University , 2005 AIHC 1043, 1051 (para 38) (All). 63 Bangalore Development Authority v. R. Hanumaiah, (2005) 12 SCC 508, 528 (para 34). 64 Barrow's case, (1880) 14 ChD 432, 441, Madras Hindu Mutual Benefit Permanent Fund v. Ragava Chetti, (1895) 19 Mad 200. 65 Harda Municipality v. H. Electric Supply Co., AIR 1964 MP 101; Shankerrao v. Vinayak, AIR 1951 Nag 307. 66 Bankey Bihari v. Surya Narain, AIR 1999 All 167 (paras 8 and 13). 67 Jit Ram Shiv Kumar v. State of Haryana, AIR 1980 SC 1285. Relying upon, Excise Commr. U.P. v. Ram Kumar, AIR 1976 SC 2237 : 1976 Supp SCR 532; N. Ramanatha Pillai v. State of Kerala, (1974) 1 SCR 515; AIR 1973 SC 2641 and State of Kerala v. Gwalior Rayon, (1974) 1 SCR 671 : AIR 1973 SC 2734. 68 Monte de Guirim Educational Society v. Union of India, AIR 1980 Goa 1, Minority Institutions; Preethi Srinath v. Selection Committee, Govt. and Private Medical College, AIR 1981 Kant 58, no reversation made for sportmen. K.R. Shenoy v. Udipi Municipality, AIR 1974 SC 2177, exercise of statutory power. The right of a Road Transport Corpn. to allot routes to a fresh lot of unemployed graduates cannot be questioned because the earlier allottees had been allowed good time. Krishana Gopal v. M.P.S.R.T. Corpn., AIR 1986 MP 103. 69 Filterco. v. Commissioner of Sales Tax, AIR 1986 SC 626. 70 Mathra Parshad v. State of Punjab, AIR 1962 SC 745; Virendra Kumar Saklekha v. Jagjiwan, (1972) 1 SCC 826; Kashmir House v. Dy. Commr. of Commercial Taxes, (1971) 28 STC 297(AP) ; Paradise Printers v. Union Territory of Chandigarh, AIR 1988 SC 354. 71 R.R. Chari v. State, AIR 1959 All 152. 72 S. Veneer and Saw Mills, Dimapur v. State of Nagaland, AIR 1995 Gau 37 (para 13), reversing Civil Rule No. 101 (k) of 1992, Dt. 6-8-1993 (Gau). 73 Sundareswaran v. State of T. Cochin, AIR 1956 Tra/Co. 85. 74 Dunlop India Ltd. v. Union of India, AIR 1977 SC 597. 75 Plasmac Machine Manufacturing Co. v. Collector of Central Excise, AIR 1991 SC 999. 76 Dhone Gopal v. Secretary, Land and Land Revenue Dept. Govt. W.B., AIR 1966 Cal 348. 77 Hindustan Motors Ltd. v. Union of India, AIR 1954 Cal 151. 78 M.P. Cement Manufacturers Assocn. v. State of M.P., AIR 2002 MP 62, 79 : 2002 (1) MPHT 84 : 2002 (2) MP LJ 195. 79 Balkrishna v. Banabai Lahu Patil, 2002 AIHC 4865, 4869, (paras 12 & 13) (Bom). 80 Dilip Singh v. Pracharya & Adhikshak, Sri L.B.S.S.R.A. Mahavidyala, 1986 All 158. 81 M.R. Jayaseel v. Secretary, State Board of Technical Education & Training, AIR 1998 AP 263 (para 10). 82 Yamunabai Anantarao v. Anantarao Sivaram Adhav, AIR 1988 SC 644. 83 Collector of Customs v. Lala Gopikishen, 1955 Mad 187; Mathra Parshad v. State of Punjab, AIR 1962 SC 745. 84 Kalidas Dhajibhai v. State of Bombay, AIR 1955 SC 62; Shanti Prasad v. Kalinga Tubes Ltd., AIR 1962 Ori 202. 85 Kartar Singh v. Dayal Das, AIR 1939 PC 201. 86 Dinbai Petit v. Dominion of India, AIR 1951 Bom 72 : (1950) 53 Bom LR 229; S.B. Noronah v. Prem Kumari, AIR 1980 SC 193 where a tenant was not estopped from challenging the validity of a lease under Delhi Rent Control Act , 1958;Indra Bahadur Singh v. Bar Council of U.P., AIR 1986 All 56. No esoppel against State. Kakubhai & Co. v. Nathmal, AIR 1980 Bom 25, proceeding about validity of lease withdrawn, no estoppel against proceeding again. 87 Olga Tellis v. Bom MC, AIR 1986 SC 180.

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88 Bihar E.G.F. Co-op. Socy. v. Sipahi Singh, AIR 1977 SC 2149. 89 Harischandra Senena v. Union of India, (1972) 1 Del 110. 90 Florica Agro Tech (Pvt.) Ltd. v. State of Karnataka, 2004 AIHC 1744, 1747 (para 13) (Kant). 91 Ramanathan v. Ranganathan, (1917) 40 Mad 1134. 92 Madras Race Club v. State, AIR 1976 Mad 238. 93 Sheo Shyam v. State of U.P., AIR 2004 SC 1938 (para 10). 94 Virendra Kumar Saklecha v. Jagjiwan, (1972) 1 SCC 826. 95 Y. Yenkanna Chowdary v. Spl. Dy. Collector, LA (General), AIR 1981 AP 232(DB) . 96 N. Setharamiah v. Kotiah, AIR 1970 SC 1354. 1 Collector of Monghyr v. Keshav Prasad Goenka, AIR 1964 SC 1694 : (1963) 1 SCR 98. 2 Bahul Begam v. Herm Chandar, AIR 1960 All 519. 3 Reghu Singh v. Govt. of Orissa, AIR 1951 Ori 95. 4 Ashiruddin v. Pitu Majhi, (1969) 2 Cal 127(Cal) . 5 University of Delhi v. Ashok Kumar Chopra, AIR 1968 Del 131. 6 Autar Singh v. Sohanlal, AIR 1970 J & K 26 (FB). 7 Thakurain v. Shivnath, AIR 1969 MP 130. 8 Monte de Guirim Educational Society v. Union of India, AIR 1980 Goa 1. 9 Anant Kumar v. Vice-Chancellor, Magadh University, AIR 1990 Pat 205(DB) . 10 Anwar Ahmad Khan v. R.T.A. Lucknow, AIR 1963 All 38. 11 Narasa Reddy v. Venkata Subbayya, AIR 1964 AP 71. 12 Venkata Subbarao v. Rama Krishna Rao, ILR 1963 Andh 337. 13 Bhagwati Prasad v. Radha Kishun, AIR 1950 Pat 354. 14 New Delhi Minicipal Committee v. H.S. Rikhy, AIR 1956 Punj 181. 15 Maduri Satyanarayna v. Veerabhadra Swamy, AIR 1990 AP 169. 16 Korah Pannen v. Parameshwara Kurup, AIR 1956 Tra/Co. 1 (FB). 17 Brahmanand v. Roshanidevi, AIR 1989 HP 11. 18 Sita Ram v. Joginder Kumar, AIR 1963 Punj 531. 19 Hira Tikkoo v. Union Territory, Chandigarh, AIR 2004 SC 3648 (paras 19, 20 and 25) : (2004) 6 SCC 765. 20 A.C. Jose v. Sivan Pillai, AIR 1984 SC 921 : (1984) 2 SCC 656 : 1984 UJ 558(SC) : (1984) 3 SCR 74. 21 A.C. Jose v. Sivan Pillai, AIR 1984 SC 921; Shanker Lal v. Narendra Bahadur Tandon, AIR 1967 All 405; Sukumar Chakraborty v. Ast. Assessor Collector, AIR 1991 Cal 181. 22 P. Varadarajan v. State of A.P., AIR 1976 AP 90. 23 Mohanlal v. Punjab Co. Ltd., AIR 1961 Punj 485. 24 Kok Hoong v. Leong Cheong Kweng Mines, 1946 AC 993(PC) . 25 Pritam Kaur v. Harpal Singh, AIR 2001 P&H 306 (para 15).

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26 Bhatt Indravan Nathalal v. State of Gujarat, 2004 AIHC 2343, 2351 (para 37) (Guj). 27 LML Ltd. v. State of U.P., (2008) 3 SCC 128, 145 (para 44) : AIR 2008 SC 1032. 28 Tamil Nadu Electricity Board v. Status Spinning Mills Ltd., AIR 2008 SC 2838, 2846-47 (paras 31-32) : (2008) 7 SCC 353.

68. TAX LAWS Doctrine of estoppel does not apply to Income Tax Act, as equity is out of place in tax laws. Whether a particular income is to be taxed or not is a matter under the taxing statute. If it is not taxable under the statute, it cannot be taxed on the basis of estoppel or under any other equitable doctrine. 29 Income cannot be taxed on the basis of estoppel or any other equitable doctrine. 30 Income Tax Commissioner's power to object to settlement proceedings cannot be nullified by doctrine of estoppel. 31 There is no question of an assessee waiving any right accrued to him under the statute. 32 Written down value and depreciation determined under Section 35 of Income Tax Act, 1922 does not operate as estoppel orres judicata . 33 Estoppel does not apply in case of successive assessments, as an assessment for each year is complete in itself 34 but in respect of assessment of land, land already assessed and certificate exempting it from future liability already issued, could not be reassessed for depositing one time tax. 35 Where a firm was dissolved and the individual partners were invited by the taxing authorities to pay their shares, and on payment of their shares they would not be required to pay anything further. The income tax officer was estopped from realizing the balance of tax from a partner who had paid his share. 36 An assessee company cannot be estopped from claiming the benefit of deductions under provisions of Income tax Act by reason of the fact that it had erroneously allocated a part of it towards profits earned at its branch at a foreign country. 37 Where a party gave classification of goods in accordance with the wishes of the customs authorities or under some misapprehension, for clearance of his goods, he is not estopped from claiming for refund of tax paid on proper appraisal 38 and payment of tax voluntarily pursuant to clause in terms and conditions of an auction, would not preclude the tax payer from claiming refund 39 but where the importer accepted the test reports indicating misdeclaration of the goods confiscated under Customs Act and agreed to adjudication by authorities after waiving the show cause notice against the confiscation of goods and imposition of penalty and the goods were released on that basis, they could not challenge the valuation on the basis of the test reports and the penalty and fine imposed. 40 Issue of clarification or circulars by the Govt. regarding taxability of a certain item does not prevent the state from recovering the tax leviable according to law. 41 The principle of promissory estoppel does not apply in case of demand of additional tax. 42 Where the Government has granted exemption from sales tax for growth of industry under a package, State Government cannot be estoppel from imposing cess under the provisions of other Act s. 43 29 Commr. of I.T. v. Bharat General Re Insurance Co. Ltd., 1971 Tax LR 883(Del) ; Dwarkadas K. Morarka v. C.I.T., Bombay, (1962) 44 ITR 529(SC) ; New Jehangir Vakil Mills Co. v. C.I.T. Bombay, AIR 1964 SC 318; Firm Bhagatram v. Commer., of Excess Profits Tax, AIR 1956 SC 374. 30 I.T. Commr. v. Firm Muar, AIR 1965 SC 1216. 31 I.T. Commer. Calcutta v. Bhattacharyjee, AIR 1979 SC 1725. 32 Basheshar Nath v. Commer. of I.T., AIR 1959 SC 149. 33 Maharana Mills v. I.T. Officer, AIR 1959 SC 881. 34 Kantilal v. Commer. of I.T., AIR 1955 Bom 53. 35 East India Hotels Ltd. v. State of Rajasthan, AIR 2001 Raj 286 (paras 26-28). 36 I.T. Officer v. Khanjan Lal, (1973) 89 ITR 120(All) .

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37 I.T. Commr. v. C. Parekh & Co., AIR 1958 SC 775, 778 (para 8). 38 Dunlop India Ltd. v. Union of India, AIR 1977 SC 597. 39 Divisional Forest Officer, Kalpetta v. C.C. Aravindan, AIR 2000 Ker 121 (paras 13 and 14). 40 Pine Chemical Suppliers v. Collector of Customs (Bombay), AIR 1993 SC 1185. 41 Bengal Iron Corporation v. Commercial Tax Officer, AIR 1993 SC 2414 (para 18). 42 Theatre, Sangamesh v. Entertainment Tax Dy. Commissioner, Kurnool (FB), AIR 1993 AP 137 (paras 16 to 19), approving Sri Ram Theatre v. Dy. C.T.O., Kakinada, 1982 (2) AP LJ (HC) 209 : (1982) 2 Andh LT 178. 43 Pioneer Agro Extracts Ltd. v. State of Punjab, AIR 2002 P&H 135, Principles of 'equitable estoppel' as laid down in Moti Lal Padampat Sugar Mills Co. Ltd. v. State of U.P., AIR 1979 SC 62 reld to be in applicable ILR (P&H) 2002 (1) P&H 544 : 2001 (3) Punj LR 885 : 2002 (1) Rec Civ R 166 : 2002 (125) STC 532.

69. RENT CONTROL When there is total lack of jurisdiction in the authorities under the Orissa House Rent Control Act, no amount of concession by party's counsel can confer any jurisdiction on them. 44 Fair rent fixed during compromise arrived at between parties before a Civil Court, would be outside the ambit of the Rent Control Act and it would not act as estoppel from getting the fair rent fixed under the Rent Control Act . 45 Where there is an agreed rent between the landlord and the tenant prior to the Amending Act , 1988 providing that the provisions of Delhi Rent Control Act , 1958 would not apply to the premises whose monthly rent exceeded Rs. 35000/-, the tenant was estopped from taking a plea that it was not the standard rent.46 44 Dukhi Shyam Das v. Satyabadi Sahu, ILR 1972 Cut 706. 45 Kunjilal v. Madan Lal, 1997 AIHC 1006 (paras 11-13) (J&K). 46 Vishwant Kumar v. Madan Lal Sharma, AIR 2004 SC 1887 (para 7) : (2004) 4 SCC 1.

70. ARBITRATION Award of an arbitrator can be filed only in the court in which the suit would lie with regard to the subject-matter of reference. An agreement between parties to file in a different court is against the statute and cannot be given effect to. 47 Appearance of a party in arbitration proceedings in terms of a contract which was void under some Act, could not later on be claimed by the opposite party as estoppel and prevent the party from repudiating the award as void. 48 The fact whether a clause in the agreement can be construed and considered as an arbitration clause, has to be decided by reference to the intention of the parties by reading the language of the clause and not on the basis of a petition filed by a party admitting the existence of such a clause. Filing of the writ petition will not operate as an estoppel. 49 Plaintiff agreed to an arbitration under as agreement, clause 9 of which provided for reference to a sole arbitrator who is to be appointed by the Managing Director even if he be an employee. It was held that the plaintiff was estopped from raising the plea against the appointment of an employee. 50 Parties taking part in arbitration proceedings cannot later contest any want of formality in the appointment of the arbitrator and order of reference or the proceedings. 51 The party agreeing to refer the disputes to the arbitration cannot raise the plea that the disputes were beyond the scope of arbitration agreement only because the award is passed against it. 52 The party participating in the arbitration proceedings without any protest was estopped from challenging its proceedings after the award was passed. 53 However, it was held that mere participation in arbitration proceedings and raising objections would not operate as estoppel in challenging the jurisdiction of the arbitrators to give

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an award. 54 The Supreme Court observed that an arbitrator has to give an award within four months unless the time was extended by court. An award given beyond that time is without jurisdiction and invalid and the parties are not estopped from challenging the validity of such an award merely because they participated in the proceedings after the expiry of the prescribed period. 55 Where the agreement provided for the appointment of an arbitrator only by one of the parties but an arbitrator was appointed by the court at the instance of the other party; it was held that the award made by such arbitrator can be set aside and the appearance of the parties does not estopped the party from challenging the award. 56 Party participating in arbitration proceedings without protest cannot after awards challenge the whole proceedings as without jurisdiction on ground of known disability of the other party. 57 Where a contract with Government contained arbitration clause and reference to arbitration was made accordingly, and the Government took part in the arbitration proceedings is, it estopped from raising objection that the contract and the arbitration clause were void owing to noncompliance with Section 175(3)of the Government of India Act , 1935. 58 It was however held in the undermentioned case that where a party takes part willingly in the arbitration proceedings after expiry of the period for submitting the award and the award was made thereafter, the party is estopped from challenging the award on the ground that the award was made after expiry of the period. 59 When arbitrators failed to make an award within the time, the court directed, on consent of the parties, the umpire to act as sole arbitrator and make the award. When parties took part before the umpire, it was held they were estopped from questioning the award given by the umpire on the ground of lack of jurisdiction. 60 The award passed by an Agricultural Tribunal after the prescribed period, is enforceable, particularly when the party challenging the award participates in the proceedings without protest. 61 Where an objection is raised to an award that it was delivered out of time, it is open to the other party to contend that the first party was barred by estoppel by his conduct from raising that plea. 62 Where the Government and the contractor submitted to arbitration, it was held that the parties could not resile and the Government was not competent to direct the arbitrator not to act and to terminate the proceedings. 63 Where the court set aside the award of the arbitrator and appointed a second arbitrator, and the State filed an appeal against the order of court appointing the second arbitrator but participated in the proceedings before the second arbitrator, it was held that the statutory right of appeal is not affected by the principle of estoppel. 64 Where the arbitrator was the Managing Director of the petitioner company, it was held that he can continue arbitration proceedings even after his retirement from the service of the company and the parties are estopped from questioning the reference. 65 Res judicata not expressly pleaded will be deemed to have been waived.

66

Admission by contractor of Government's claim for extra expenditure cannot estop contractor from challenging the claim and seeking arbitration regarding it under the arbitration clause. 67 An agreement to be bound by arbitration at the instance of some partners, though not originally binding on other partners, might become binding later on by acquiescence or acceptance of benefit tendered and they would be estopped from challenging the award. 68 Where a company enters into contract with the Government in its pseudo or trade name, and deposits earnest money as well as security deposit and also tenders part of contracted stores for inspection, the company is estopped from challenging the contract and reference to arbitration. 69 An invalid reference does not amount to waiver or estoppel. 70 An order passed by an arbitrator which lacks inherent jurisdiction would be a nullity and the procedural law of waiver or estoppel would not apply. 71 The fact that the earlier application under the Arbitration Act , 1940 was got dismissed as not pressed in the teeth of the repeal of the said Act, cannot constitute any legal impediment for having recourse to and avail of the avenues thrown open to the parties under the Arbitration and Conciliation Act , 1996. Similarly, having regard to the distinct purposes, scope and object of the respective provisions of law in these two Acts, the plea of estoppel can have no application to deprive the appellants of the legitimate right to invoke an all-comprehensive provision of mandatory character of Section 8 of the 1996 Act to have the matter relating to the disputes referred to arbitration, in terms of the arbitration agreement.72

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47 Narasimhan v. Ramdayal, AIR 1966 AP 134. 48 Hiralal Pannalall v. Dal Housie Jute Co., AIR 1978 Cal 119; Albion Jute Mills v. Jute and Gunny Brokers Ltd., 1953 Cal 458. 49 Garg Builders & Engineers v. U.P. Rajkiya Nirman Nigam Ltd., AIR 1995 Del 111 (para 6). 50 Vijay Singh v. Hindustan Zinc Ltd., AIR 1992 Raj 92. See also Noble Engineering Works v. H.P. State Electricity Board, AIR 1994 HP 153 (paras 50 and 51); Kamala Solvent v. Manipal Finance Corporation Ltd., AIR 2001 Mad 440 (paras 9 and 10). 51 Assaudullah Mokhdoomi v. Lassa Baba, AIR 1966 J&K 1; New India Assurance Co. v. Dalmia Iron & Steel Ltd., AIR 1965 Cal 42; Tasapore & Co. v. Cochin Shipyard Ltd., AIR 1984 SC 1072; (Company agreeing to refer without prejudice--cannot contend that award is not binding as reference was made without prejudice); Dhar B.K. v. Union of India, AIR 1965 Cal 424; Union of India v. K.P. Mandal, AIR 1958 Cal 415; Union of India v. B.M. Sen, AIR 1963 Cal 456; Jupiter & Co. v. Corporation of Calcutta, AIR 1956 Cal 470; State of W.B. v. A.K. Ghosh & Brothers, AIR 1975 Cal 227; Neelkantan and Brothers v. Supt. Engineer National Highways Salem, AIR 1988 SC 2045; Union of India v. Sohan Singh & Co., AIR 1989 J&K 14; R.C. Bhalla v. N.C. Bhalla, AIR 1996 Del 24 (para 17); State of Rajasthan v. Nav Bharat Construction Co., AIR 2005 SC 2795 (paras 12 and 13) : (2005) 11 SCC 197; Agra Development Authority v. Sheikhein International, 2008 AIHC 131, 134 (para 10) (All). 52 International S.&I. Agency Ltd. v. Delhi Municipal Corporation, AIR 2001 Del 283 (para 23). 53 Vaish Brothers & Co. v. Union of India, AIR 1999 Del 105 (para 3). 54 Khardah Co. Ltd. v. Raymon & Co., AIR 1962 SC 1810; Waverly Jute Mills Co. v. Raymon & Co., AIR 1963 SC 90; Ajit v. Fateh, AIR 1962 Punj 412; Omprakash v. Union of India, AIR 1963 All 242; Jagannath v. Premier Credit Inst. Corp., AIR 1973 All 49; Ramkinkar Rai v. Tufani Ahir, AIR 1931 All 35. 55 State of Punjab v. Hardyal, AIR 1985 SC 920. 56 Food Corp. of India v. A. Md. Yunus, AIR 1987 Ker 231. 57 Jupiter Insce Co. v. Calcutta Co-operation, AIR 1956 Cal 470; B.K. Dhar Pvt. Ltd. v. Union of India, AIR 1965 Cal 424. 58 Union of India v. Rallia Ram, AIR 1960 Punj 567; Union of India v. Khem Chand Raj Kumar, (1973) 1 Cal 529. 59 Bokaro & Ramgur Ltd. v. Prasun Kumar, AIR 1968 Pat 150(FB) ; State of Bihar v. S.K. Sahay, AIR 1971 Pat 37; N.M.T. Co-op. Society v. Dy. Registrar Co-op. Society, AIR 1977 Raj 233; Ganesh Chandra v. Artatrana, AIR 1965 Ori 17. 60 Chellappan v. Kerala State Electricity Board, AIR 1975 SC 230. 61 Padmanabhan Nair v. Thankappan, AIR 1980 Ker 156. 62 Kamta Pd. Nigam v. Ram Dayal, AIR 1951 All 711. 63 State of Maharashtra v. Ranjeet Construction, AIR 1986 Bom 76. 64 State of Kerala v. Valliammal Bhaskaran, AIR 1990 Ker 42. 65 National Research Development Corpo. of India v. Britelite Carbons Ltd., AIR 1987 Del 317. 66 Sukhni v. Sukhbasi, AIR 1967 All 423. 67 Union of India v. Rishi Raj & Co., AIR 1973 Del 15. 68 Rai Dwarkanath v. Haj Mohammad, AIR 1914 PC 33; See also 1971 Cur LJ 604. 69 Modi Industries Ltd. v. Union of India, (1970) 1 Del 621. 70 Union of India v. S.N. Das & Brothers, AIR 1962 Cal 82. 71 B.S.M.D.C. v. Encon Builders (I) Pvt. Ltd., AIR 2003 SC 3688 (para 33) : (2003) 7 SCC 418. 72 Kalpana Kothari v. Sudha Yadav, (2004) 1 SCC 203 (para 9) : AIR 2004 SC 404.

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71. CIVIL PROCEDURE CODE A decree holder's right to execute the decree is controlled by O. XXI, C.P.C. There can be no estoppel against right conferred by statute.73 Executing court cannot sell property which is admittedly nonsaleable. Failure to raise objection in time does not create any estoppel because there is no estoppel against statute. Doctrine of estoppel or waiver is not applicable to the protection under Section 60 of the Code of Civil Procedure Code (5 of 1908).74 Second appeal under Section 100of C.P.C. respecting finding of facts is not barred where the finding is based on non-appreciation of the conduct of the parties in proper perspective and misapplication of law. 75 73 Narayana v. Godavarma, AIR 1952 Tra/Co. 561. 74 Gowranna v. Basavana Gowda, AIR 1975 Kant 84; Ram Naresh v. Ganesh Mistri, AIR 1952 All 680. 75 Bijan Kumar Barman v. Bhaskar Chandra Barman, AIR 2001 Cal 98 (para 17).

72. EXCISE ACT A bidder at an auction of liquor shop held under the Punjab Excise Act is not estopped from challenging the legality of the conditions of sale announced at the time of the auction, if they are at variance with the conditions laid down by the statutory rules. 76 76 Union of India v. Narain Singh, AIR 1953 Punj 274.

73. EVIDENCE ACT Evidence of oral agreement contrary to written agreement is excluded by virtue of Section 92 of the Evidence Act. Section 115 does not override Section 92 as there is no estoppel against statute. 77 77 Ranbaxy Laboratories Ltd. v. Doon Apartment (P) Ltd., (1979) 1 Del 84.

74. COMPANY ACT In a case, the entire scheme regarding the purchase of shares of a company in the name of the mother, the majority share holder, was suggested by the Managing Director himself and thereafter he himself saw to it that those shares were transferred in the name of the majority shareholder and his wife which was recorded and corrected in the company register of members. On the ground of all these facts themselves, the Managing Director filed a petition for rectification of register of members. He also alleged the violation of FERA. The Supreme Court held that the Managing Director who himself was the initiator of all this could not turn around raise the question of FERA violation. 78 78 Dale & Carrington Invt. (P.) Ltd. v. P.K. Prathapan, (2005) 1 SCC 212, 235 (para 33) : AIR 2005 SC 1624.

75. LAND ACQUISITION ACT Once on a conscious decision of the authorities while deciding the objections of the petitioners against the acquisition of the land in question the land was released from acquisition, the state Government was estopped from acquiring the same land of the petitioner for the same purpose especially when the land in question was being developed and used for the very same purpose by the petitioners. 79 Where a person receives compensation of land acquired under land Acquisition Act, without protest, he cannot be estopped from filing application for reference under Section 18 of that Act. 80

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Lands of 'A' and 'R' were acquired and compensation was awarded. 'A' did not accept the award and challenged it for enhancement of compensation. 'R' accepted the award but tried to challenge it after 20 years when the award had become final, by impleading himself as a party in the appeal filed by 'A'. It was held that he was estopped from doing so after the award had become final when a Civil Court has no jurisdiction. He could not file even a collateral proceedings. 81 Acquisition of land cannot be questioned by invoking Sections 27 of the Land Acquisition Act in absence of material to show dereliction of duty on the part of the authorities. 82 Where in a land acquisition matter, writ petition was filed after the possession was taken over and the award had become final, it was held that the petitioners could be said to have waived their right to objection by their own inaction. 83 Where it was evident form the letter written by the Attorney on behalf of all the landowners that they had in fact been willing to negotiate the price for the land at the time when the acquisitions were still incomplete as only the notification under Sections 4 of the Land Acquisition Act had been issued at that stage and the declaration underSection 6 was issued and award rendered later on. This makes evident that the landowners had, in fact, acquiesced to the acquisition and could not then turn around to say that the acquisition was bad in law. 84 79 Roshanlal v. State of Haryana, 2003 AIHC 4264, 4266 (para 8) (P&H). The Court relied on Ghaziabad Sheromani Sahkari Avas Samiti Ltd. v. State of U.P., AIR 1990 SC 645 and Sube Singh v. State of Haryana, (2001) 7 SCC 545 : AIR 2001 SC 3285. 80 Sunil Kumar Das v. State of Tripura, AIR 2004 NOC 479(C) (Gau) : 2004 AIHC 3108, 3112 (para 9) (Gau) : 2005 (1) Gau LR 314 : 2004 (2) LACC 401 : 2004 (3) Gau LT 686. Consensus settlement of compensation, estoppel, M.L. Dhar v. Collector Land, AIR 2007 J&K 15, 17 (paras 17-19). 81 Ram Karan v . Union of India , AIR 2006 (NOC) 342(Del) : 2006 AIHC 152. See also Union of India v. Parmal Singh, (2009) 1 SCC 618, 625 (para 15). 82 Anantha Shishu Sevashrams v. State of Karnataka, 2007 AIHC 3471, 3475-76 (para 14) (Kant). 83 Swaika Properties (P) Ltd. v. State of Rajasthan, (2008) 4 SCC 695, 700 (para 19) : (2008) 2 JT 280, relying on Municipal Corpn. of Greater Bombay v. Industrial Development Investment Co. (P) Ltd., (1996) 11 SCC 501; State of Rajasthan v. D.R. Laxmi, (1996) 6 SCC 445; Municipal Council, Ahmednagar v. Shah Hyder Beig, (2000) 2 SCC 48 and C. Padma v. Dy. Secy. To the Govt. of T.N., (1997) 2 SCC 627. 84 Urmila Roy v. Bengal Peerless Housing Development Company Limited, (2005) 5 SCC 242, 263 (para 60).

76. SPECIFIC RELIEF ACT In a sale agreement the vendor was given entire options as to the performance of contract and the purchaser was given no right of specific performance in case the vendor failed to perform his part. On the contrary both the parties agreed that in the event of breach remedy would be compensation. Clauses in the agreement appeared most unusual and it could be said that the vendor executed the sale deed only by way of security towards loan amount borrowed by him from the purchaser the property in dispute and it was purely a loan transaction. It was held that the aggrieved party was estopped from claiming anything other than compensation. 85 85 Sharadamma v. Gunashekar, AIR 2009 (NOC) 1370(Kar) .

77. MUNICIPAL ACT There is no estoppel against the statutory provisions of a municipal enactment and the municipality is entitled to remove illegal encroachments. 86 A piece of vacant land was granted on lease by Municipal Corporation under the Bombay Provincial Municipal Corporation Act , 1949 but statutory requirements for such grant were not fulfilled and the grant stood cancelled, hence question of raising any plea of estoppel by the grantee would not arise. 87

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86 Ramjidas v. State of Assam, AIR 1964 Assam 60. 87 Bahadursinh Lakhubhai Gohil v. Jagdishbhai M. Kamalia, AIR 2004 SC 1159 (para 16) : (2004) 2 SCC 65.

78. BANK Where a depositor nominated his two wives as his nominees while making the deposit and the bank accepted it, it was held that the bank is estopped from refusing to pay the nominees on the ground that the nomination of two nominess was irregular. 88 Where a money decree in respect of a bank loan was passed in favour of the bank but as a result of compromise proposal by the judgment-debtor, a deposit of part of money was made during the period of negotiation, it can not create estoppel against the bank to reject the proposal and to execute the decree. 89 Where in a suit for recovery of loan, the defendants acknowledged their liability, subsequently they could not refuse to make payment of the amount of loan due to the bank on the ground that higher rate of interest could not be charged, moreso because they had acknowledged their liability of the amount due which was calculated on the basis of enhanced rate of interest. 90 The bank is not estopped from claiming any lien over the pledged goods even after the payment of the amount due if the debtor has not cleared his amount in connection with another loan. 91 88 Chandramma v. General Manager, State Bank of Hyderabad, AIR 1988 AP 289. 89 Thakur Steel Tubes Ltd. v. State Bank of India, Chandigarh, AIR 1997 P&H 215. 90 Syndicate Bank v. R. Yeeranna, AIR 2003 SC 2122 (para 8) : (2003) 2 SCC 15. 91 State Bank of India, Kanpur v. Deepak Malviya, AIR 1996 All 165 (paras 16, 18, 20 and 27).

79. ESTOPPEL ON POINT OF LAW There is no estoppel on a point of law 92 or a settled proposition of law. 93 There can be no estoppel on a pure question of law and that a question of jurisdiction in a case is a pure question of law. 94 Operation of law can not be prevented by estoppel. 95 Estoppel refers to a belief in a fact and not in a proposition of law. A person cannot be estopped for a misrepresentation on a point of law. An admission on point of law is not an admission of a "thing" so as to make the admission matter of estoppel. 96 Where certain claims have been allowed in a tax matter, there is no estoppel as against similar claims in future. 97 Any act done under misapprehension of legal right does not create estoppel, nor does a question of estoppel arise when the parties know the correct position. 98 Where persons merely represent their conclusions of law as to the validity of an assumed or admitted adoption, there is no representation of a fact to constitute an estoppel. 99 No question of estoppel can ever arise where both the parties are labouring under a mistake of law and one party is not more to blame than the other. Estoppel arises only when the plaintiff by his act or conduct makes a representation to the defendant of a certain state of facts which is act ed upon by the defendant to his detriment; it is only then that the plaintiff is estopped from setting up a different state of facts. Even if this position can be availed of where the representation is in regard to a position in law, no such occasion arises when the mistake of law is common to both the parties. The other circumstances would be such as would entitle a Court of Equity to refuse the relief claimed by the plaintiff because on the facts and circumstances of the case it would be inequitable for the Court to award the relief to the plaintiff. These are, however, equitable considerations and could scarcely be imported when there is a clear and unambiguous provision of law which entitles the plaintiff to the relief claimed by him. Observations of K AUSHALENDRA R AO , J. in AIR 1951 Nag 372, Not approved. 1 In a suit for partition of properties purchased in the names of minor son, it was found that they were acquired by the father himself and on his death the properties devolved on his heirs. Any subsequent admission of wife and sons in the alleged partition deed or in some previous case, would not change

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the legal position and principle of estoppel would not be attracted. 2 No estoppel arises by reason of the admission by a party as to the legal effect of facts fully set out and admitted. 3 No amount of admission contrary to law can create as estoppel. 4 Interpretation of a document is a question of law and there can be no estoppel in such matter. 5 Whether a suit is bad for partial partition or not, is a question of law. Hence the plea of estoppel is not available. 6 When a person applies for a stay order under Sections 34 of the Arbitration Act without representing that he is a party to the agreement and obtains an order but the contract containing the arbitration clause itself is found to be illegal, he is not estopped from saying that he was not a party to the agreement.7 Relinquishment of future inheritance does not operate as estoppel as such relinquishment is prohibited by Mohammedan Law as void. 8 Where future right of inheritance is relinquished for consideration, estoppel applies. There is no conflict between Section 6(a)T.P. Act and Section 115 Evidence Act. Jamma Masjid v. K. Deviah 9 , where it was held that Section 6(a) does not conflict with Section 43, as Section 43 also is a species of estoppel. 10 The wrong act s of the court would not estop the party to support his claim. 11 Where the wife of a judgment-debtor claimed that the attached property belonged to her, the court referred her claim to a regular suit under Order XXI, R. 58, C.P.C. The opposite party was not estopped from contending that the suit was barred underSection 47,C.P.C.12 Where on a writ petition the High Court directed the Government to pass an order under Fundamental R. 54 in favour of the petitioner and the Government accordingly passed an order, there is no estoppel against the petitioner from denying the applicability of the rule to his case and the order of the High Court in the writ petition will not operate as a bar to the High Court going into the validity of the order. 13 In an election petition, the tribunal set aside the election of the returned candidate, A writ petition was preferred against that order on the ground that the Tribunal failed in its duty to summarily dismiss the election petition for non-compliance with Rule 75 of Bihar Panchayat Election Rules. An objection was taken that the writ petitioner having contested the election petition had acquiesced to the jurisdiction and was estopped from taking such plea. It was held that the principles of acquiescence and estoppel would not apply in such cases. 14 The dispute, relating to the number of votes secured by the candidates in an election and whether any valid vote of the opposite party was rejected while accepting invalid votes of the petitioner, cannot be adjudicated upon effectively without recounting of votes and the consent of the parties/candidates securing equal number of votes for draw of lots cannot operate as estoppel. 15 But when the parties themselves requested the judge to decide the case contrary to the ordinary procedural law of the court and had taken part in the proceedings, they could not be allowed to complain against the procedure adopted by the judge. 16 Where the municipality has no legal power to effect closure of an existing market, it cannot do so even with the consent of the concerned party for such consent does not validate closure. 17 Where the decree holder obtained decree on the basis of tenancy, he is estopped from pleading in the execution proceedings that the judgment debtor was not a tenant. 18 Where a party proceeded on the basis that certain rules are valid, cannot during argument challenge the validity of those rules. 19 92 Raghava Rajagopala Chari v. State of Assam, AIR 1965 Assam 109. Appointment in clear violation of Regulation, no estoppel, Ravinder Sharma v. State of Punjab, AIR 1995 SC 277 (para 12); Union Territory, Chandigarh Administration v. Managing Society Goswami GDSDK, AIR 1996 SC 1759 (paras 3 and 4), reversing Decision of P&H High Court, Dt. 22-10-1991; M. Pyarali v. M. Sarifbhai, 1996 AIHC 716 (para 14) (Guj); B.S. Balaji v. T. Govindaraju, 1996 AIHC 2184 (para 7) (Kant); undertaking to not to approach Court will not act as estoppel Abu Zaid v. Principal, Madarsa-Tul-Islah, Saraimir, Azamgarh, AIR 1999 All 64 (paras 11 and 12); Kennedy Sigamani v. Kiruba Gnanaseeli Prema, AIR 2000 Mad 337 (para 17); Rijhan Nag v. State of Bihar, 2000 AIHC 2455 (paras 5, 6 ad 8) (Pat); Adhartal Shiksha Samiti v. State of M.P., AIR 2001 MP 3 (paras 13, 15 and 16). 93 C. Doctor and Company Ltd. v. B.S. Mills Ltd., AIR 1995 All 19 (Para 3 ). 94 Isabella Johnson v. Susai, AIR 1991 SC 993 : (1990) 2 Ker LT 968.

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95 C.I.T. v. B.N. Bhattachargee, ITR (1979) 118 461 : 1979 Tax LR 1180; Jairam v. Laxmidevi, (1963) 2 All 976; Prasun Kumar v. R.S. College, AIR 1954 Pat 486; Chinto v. Niranyan Singh, 1957 Punj 217; Dinbai v. Dominionof India, AIR 1951 Bom 72; Life Insurance Corporation of India v. Advani & Co., 2001 AIHC 421 (para 22) (All). 96 Jagwant Singh v. Silam Singh, (1899) 21 All 285. 97 Dunlop India Ltd. v. Union of India, AIR 1977 SC 597. 98 Shanker Lal v. Narendra, AIR 1967 All 405. 99 Dhanraj v. Soni Bai, (1925) 27 Bom LR 837 : 52 IA 231 : ILR 52 Cal 482. 1 Sales Tax Officer, Banaras v. Kanhaiya Lal Makund Lal Saraf, AIR 1959 SC 135. 2 Girindranath Mukherjee v. Soumen Mukherjee, AIR 1988 Cal 375. 3 Kalidas v. State of Bombay, AIR 1955 SC 62 : 1955 SCR 88. 4 D.B. Dey & Co. v. Sib Thakur Jiu, AIR 1969 Cal 565. 5 Sudesh Kumar v. Mool Chand, AIR 1969 Raj 22. 6 Amarnath v. Ganesha Ram, AIR 1971 Punj 241. 7 V.K. Murthi v. C.V. Rama Iyyer, (1974) 2 Cal 1. See also Shrawan Ram v. State of Rajasthan, AIR 2008 (NOC) 2812(Raj) . 8 Sulaiman Sahib v. Kader Ibrahim, AIR 1953 Mad 161. 9 AIR 1962 SC 847. 10 Damodaran v. Rajappan, AIR 1992 Ker 397. 11 Balgobind v. Sheo Kumar, 22 All LJ 79. 12 Machamma v. Kanakamma, AIR 1935 Mad 923. 13 Raghava Raja Gopala Chari v. State of Assam, AIR 1965 Assam 109. 14 R.P. Singh v. Baidhyanath Prasad, 1973 Pat 289. 15 Basanti Das v. Kamala Nayak, AIR 1999 Ori 187 (para 4). 16 Atro Ram Paul v. Balai Chandra Paul, (1973) 1 Cal 64. 17 Ramanlal v. Piparia, AIR 1963 MP 134. 18 John v. Karthiayani, AIR 1953 Tra-Co. 581. 19 Adarsha Fishery Co-op. Society v. State of Assam, AIR 1968 Assam 48.

80. SUBORDINATE/DELEGATED LEGISLATION In the absence of an enabling provision for retrospective amendment of Rules at the relevant time, it was held that the Govt. resorting to such exercise would attract the doctrine of promissory estoppel. Doctrine of promissory estoppel operates even in the legislative field. 20 20 Mahabir Vegetable Oils (P) Ltd. v. State of Haryana, (2006) 3 SCC 620, 629 (paras 22-25) : (2006) 3 JT 544.

81. SUPREME COURT DIRECTIONS There is no estoppel insofar as the duty of all concerned to enforce and comply with the directions of the Supreme Court is concerned. 21 However, where the owner of the land constructed building after completing the formalities after he received a letter of the Development Authority that the notification

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for acquisition had been quashed but subsequently the Supreme Court upheld the acquisition proceedings and the owner applied for release of that part of the land, the Supreme Court directed the Govt. to consider the same sympathetically. 22 21 Managing Society, D.M. C. & Hospital v. State of Punjab, AIR 1995 P&H 225 (para 21). See also Lalitha E.P. v. State, AIR 1996 Ker 133 (para 11). 22 Delhi Administration v. Gurdip Singh Uban, AIR 2000 SC 3737 (para 64).

82. ESTOPPEL AGAINST PUBLIC POLICY AND PUBLIC INTEREST Where a statute prohibits sub-letting the premises on the ground of public policy, even when the owner gives oral permission to the tenant allowing him to sub-let the premises, he is not estopped from pleading that subletting was unlawful. 23 The Rajasthan Land Reforms and Resumption of Jagirs Act 6 of 1952 confers no authority on the Government to grant exemption from resumption and an undertaking by the Government not to resume will be invalid, as there can be no estoppel against a statute. 24 A person, who had earlier consented to an agreement, can plead that the agreement is a nullity being opposed to public policy: In Union Carbide Corporation v. Union of India , 25 the Supreme Court observed the observation of A TKIN LJ "Illegalities are incurable" citing In re A Bankruptcy Notice (1924) 2 ChD 76 at 97: "It is well established that it is impossible in law for a person to allege any kind of principle which precludes him from alleging the invalidity of that which the statement has, on grounds of general public policy, enacted shall be invalid". In Maritime Electric Co. Ltd. v. General Dairies Ltd., 26 it was observed ".... an estoppel is only a rule of evidence which under special circumstances can be invoked by a party to an act ion, it can not therefore avail in such a case to release the plaintiff from an obligation to obey such a statute, nor can it enable the defendant to escape from statutory obligation of such a kind on his part. It is immaterial whether the obligation is onerous or otherwise to the party suing. The duty of each party is to obey the law..... The court should first of all determine the nature of the obligation imposed by the statute and then consider whether the admission of an estoppel would nullify the statutory provision...... There is not a single case in which an estoppel has been allowed in such a case to defeat a statutory obligation of an unconditional character." 27 The State Government announced a policy declaring incentive and concessions, one of them being refund of sales tax to selective industries. It was held that as the scheme of refund was opposed to public policy the doctrine of promissory estoppel is not applicable. 28 Transfer of hereditary office being opposed to public policy, the transferor or his representative in interest is not estopped from contesting its validity. 29 Any prohibition made by law on the ground of public policy, cannot be defeated by raising the plea of estoppel. 30 The declaration of a Minister in public function that the Govt. had decided to withdraw certain lands from acquisition, does not amount to policy decision. The newspaper report cannot also form the basis of claiming that the Govt. was estopped from proceeding further with acquisition. 31 Where the defendant claimed deduction on the ground that by virtue of an agreement entered into between the ancestors of the parties to deduct Rs. 96 per annum from the amount received by way of pension in order to enable him to maintain the dignity of his office, it was held that this agreement was an assignment of future interest in a portion of a pension and governed by Sections 12 , Pensions Act . Since the agreement of this kind was rendered void bySection 12, the plaintiff's right to claim her full share, was not affected. 32 Government can change its policy in public interest and promissory estoppel would not apply 33 but where the Govt. act ion is arbitrary, say in violation of a stay order, the Court would interfere. 34 No estoppel is available against public interest. 35 However, where the Development Authority failed to satisfy that due to supervening circumstances fulfilment of promise would be contrary to public interest, the principle of estoppel would apply. 36

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23 Waman Shriniwas v. R.B. & Co., AIR 1959 SC 689; Thakurain v. Shivnath, AIR 1969 MP 130; P.P. Chaami v. State of Karnataka, AIR 2008 (NOC) 2558(Kar) : 2008 (4) AIR Kar R 354. 24 Amar Singhji v. State of Rajasthan, AIR 1955 SC 504. 25 AIR 1992 SC 248. 26 AIR 1937 PC 114 at 116-117. 27 Also referred State of Kerala v. Gwalior Rayon Silk Manufacturing Co., AIR 1973 SC 2734 at 2745; Union Carbide Corpn. v. Union of India, AIR 1992 SC 248. 28 Amrit Banaspati Co. Ltd. v. State of Punjab, AIR 1992 SC 1075. 29 Nallasami v. Sadasiva, 67 MLJ 759. 30 Adinarayana v. Chengiah, AIR 1937 Mad 918; Ramakrishnamma v. Venkatasubbbaiah, ILR 58 Mad 389; State of Gujarat v. Vishnu Automobiles, AIR 1999 Guj 92 (para 21); G.T.N. Textiles Ltd. v. Asstt. Directors, R.O.T. Commissioner, AIR 1993 SC 1596 (paras 9-12); Shakti Tubes Ltd. v. State of Bihar (FB), AIR 1994 Pat 162 (para 11); Darshan Oils Pvt. Ltd. v. Union of India, AIR 1995 SC 370 (paras 7 and 8); Principal, Madhav Institute of Technology and Science v. R.S. Yadav, AIR 2000 SC 2487 (paras 8, 9 and 11), reversing LPA No. 218 of 1997, Dt. 15-10-1997 (MP); N.K. Metalia High School v. State of Gujarat, AIR 2001 Guj 63 (para 11); Ajantha Travels Trivandrum v. Govt. of India, AIR 2001 Ker 112; Laxmi Udyog Rock Cement Pvt. Ltd. v. State of Orissa, AIR 2001 Ori 51 (para 12), following Sales Tax Officer v. Shree Durga Oil Mills, AIR 1998 SC 591 : 1998 AIR SCW 186. 31 Mohmadbhai v. State of Maharashtra, 2000 AIHC 1945 (para 18) (Bom). 32 Parwati Bai v. Sakharam, AIR 1953 Nag 221. 33 Sales Tax Officer v. Shree Durga Oil Mills, AIR 1998 SC 591. See also Sanjaya Sales Corporation v. National Mineral Development Corporation, AIR 1993 AP 62 (para 12); A.J. Joy v. Govt. of Tamil Nadu, AIR 1993 Mad 282 (paras 36 and 37); Nagappa v. State, AIR 1994 Kant 77 (paras 20 and 23); Union of India v. Binani Consultants (P) Ltd., AIR 1995 Cal 234 (para 17); P.T.R. Exports (Madras) P. Ltd. v. Union of India, AIR 1996 SC 3461 (para 5); Shrijee Sales Corporation v. Union of India, (1997) 3 SCC 398 (paras 3 and 4). 34 Md. Ehsan v. Union of India, 1998 AIHC 2477 (paras 8 and 12) (Cal). 35 Himalaya Rice Mill, Motinagar v. State, AIR 1997 All 155. Also see Y. Konda Reddy v. State of A.P., AIR 1997 AP 121, tenders cancelled even after informing of acceptance to lowest tenderer. Withdrawal of whole scheme of development of tourism and inter-related activities at certain places by the Govt. in public interest, after petitioner's proposals were accepted, no estoppel Lotus Constructions v. Govt. of A.P., AIR 1997 AP 200. Also see K.A.S. Senthilnathan v. Union of India, AIR 1997 Mad 208. Government can change its industrial policy in public interest, no estoppel, Sales Tax Officer v. Shree Durga Oil Mills, AIR 1998 SC 591 (paras 14, 17 and 20) reversing OJC No. 2090 of 1980, decided on 15.9.1987 (Ori); National Oxygen Ltd. v. Tamil Nadu Electricity Board, AIR 1996 Mad 229 (para 16); Bharat Wools, Ludhiana v. State of Punjab, AIR 1996 P&H 215 (para 30); State of Rajasthan v. Mahaveer Oil Industries, AIR 1999 SC 2302 (para 14); Cosmopolitan Club v. Government of T.N., AIR 2000 Mad 120 (para 27.17). 36 Adikanda Biswal v. Bhubaneswar Development Authority, Bhubaneswar, AIR 2006 Ori 36, 41-42 (para 14).

83. VOID TRANSACTIONS Where a sale deed is void ab inito , there would be no question of estoppel as against the transferor. 37 When prior proceedings are held void, the decision therein cannot operate as estoppel. 38 Government is liable to compensate for goods, delivered in pursuance of a contract which is void and cannot be ratified by the Government. 39 Where the alternative plea was raised by the plaintiff at the outset alongwith the contention that the transaction in question was void and the defence itself was willing and ready to act in accordance with the plea, the alternative plea was maintainable. 40 37 Biranchi Narayan v. Biranchi Narayan, AIR 1953 Ori 333. 38 Kameshwar v. Deolal, AIR 1964 Pat 247. 39 In re : Reghubansh Narain, AIR 1962 Pat 330. 40 Krishnabai C. Kadam v. Wellworth Developers, AIR 2001 Bom 9 (paras 27 and 28).

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84. SOME INSTANCES OF ESTOPPEL Where the owner of property clothes a third person with apparent ownership of property and right of disposition thereof and the third party disposes of that property, the real owner is estopped from asserting his title against the transferee in good faith and for value. 41 Where a mother was appointed by the court as guardian of the minor daughter on the basis of a statement by the mother that she would not claim interest in the property adverse to the daughter, she is estopped from filing a suit for possession of property on the basis of her title in respect of the son's property. 42 Where the grant in favour of the highest bidder in an execution was cancelled, and a second auction was held, in which the previous highest bidder participated, he is estopped from questioning the validity of the cancellation of the earlier auction in his favour. 43 41 Li Tse Shi v. Pong Tosi Ching, AIR 1935 PC 208. 42 Harchand Singh v. Mohinder Kaur, AIR 1987 P&H 138. 43 Rahaman Bhai v. State of Orissa, AIR 1989 Ori 233.

85. TRUSTEE MORTGAGING TRUST PROPERTY AS HIS OWN CANNOT DISPUTE SALE BY MORTGAGEE A trustee, alleging that the trust property, consisting of land was his own property, mortgaged it. The mortgagee took the mortgage in good faith, for valuable consideration, and without notice of the trust. The mortgagee obtained a decree against the trustee for the sale of the land, and the land was sold in execution of that decree. The trustee subsequently brought a suit to recover the land from the purchaser on the ground that it was trust property and that he had no power to transfer it. To this none of the beneficiaries under the trust were parties. It was held that the plaintiff was estopped by his conduct from recovering possession of the land. 44 A person, who act ed as a trustee of a public temple and obtained a decree of Court in that capacity, cannot subsequently turn round and claim the temple to be a private temple and its properties as his absolute properties. 45 44 Gulzar Ali v. Fida Ali, (1883) 6 All 24. 45 Venkata Ramana v. Rama Mandiram, AIR 1966 AP 197.

86. JOINT FAMILY--ESTOPPEL IN CASES OF ALIENATION BY A WIDOW, ETC. There are three classes of estoppel that may arise for consideration in dealing with reversioner's challenge to a widow's alienation. They are (1) that which is embodied in Section 115 of the Evidence Act, (2) election in the strict sense of the term whereby the person electing takes a benefit under the transaction and (3) ratification i.e., agreeing to abide by the transaction. A presumptive reversioner coming under any one of the aforesaid categories is precluded from questioning the transaction, when succession opens and when he becomes the actual reversioner. But if the presumptive reversioner is a minor at the time he has taken a benefit under the transaction, the principle of estoppel will be controlled by another rule governing the law of minors. If after attaining majority he ratifies the transaction and accepts the benefit thereunder, there cannot be any difference in the application of the principle of election. 46 Where a widow had taken a loan from the reversioners and alienated the property to pay off that debt, the reversioners are not estopped from challenging the alienation on ground of want of legal necessity. 47 A compromise by a presumptive reversioner under which he takes a benefit cannot debar his descendants who happen to be the act ual reversioners from claiming to succeed to the reversion, when the succession open. 48

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Where a Hindu woman gave consent to her son to alienate her absolute property, she is estopped from claiming the property. 49 Where the son, who was the Karta , alienated property alleging, it was for legal necessity and his widowed mother consented, she is estopped from challenging the sale. 50 Where a managing member of the joint family consented to the execution of a mortgage by a widow of the family and had an agreement from the mortgagee to have the option of having the mortgage transferred to him, he was estopped from challenging it. 51 A sale deed was executed by a widow and the daughter of the last male holder of a property. The sale was challenged by the daughter's son on the ground, the sale was not for legal necessity. The widow died during the pendency of litigation and the daughter became the absolute owner of the property under Sections 14 of the Hindu Succession Act . It was held her son's suit was not maintainable and the daughter who was a co-executant was estopped from challenging the alienation.52 A Hindu widow alienated most of her husband's property by three deeds among which one was a sale-deed in favour of A, a reversioner. A survived the widow and did not challenge the alienation. In a suit for the recovery of the properties by the heirs of A, it was held that the three deeds were part and parcel of the one transaction, and the plaintiffs were precluded from questioning them. 53 Where in a dispute between a limited owner and a claimant there was a compromise dividing the property between them which was act ed upon for several years and later when succession opened to the claimant as s reversioner and he claimed the rest of the estate, it was held that he was estopped. 54 By making averment in the plaint that the defendant filed tax returns showing suit properties as joint, he was estopped from claiming them as separate properties. 55 Where the father of a join Hindu family mortgages the family property and the mortgage deed is signed by the coparceners, the coparceners are estopped from questioning the validity of the mortgage. 56 Where in a suit by mortgagee against the widow mortgagor, the reversioners stated in their written statement that they had no objection to the sale of property, their successors in interest cannot subsequently challenge the sale. It was not open to them to take a contrary plea to the prejudice of the person who, on the faith of the concession, got the property auctioned and purchased it. 57 A person taking a share of properties, by accepting an arbitration on the footing that they were self acquired, is estopped from setting up the plea of joint acquisition. 58 A co-sharer who has sold away a portion of a joint family dwelling-house without intimation to other co-sharers and thereby has parted with his share in the said house cannot once again be allowed to opt for re-purchase, inasmuch as by his own conduct he is estopped from making offer to re-purchase. 59 46 S. Shanmugam Pillai v. K. Shanmugam Pillai, AIR 1972 SC 2069; Seetharamayya v. Sarva Chandrayya, AIR 1955 Andhra 68; D . Subba Reddy v. G. Govinda Reddy, AIR 1961 AP 430; Ramgowad Annagowda Patil v. Bhausaheb, 1927 PC 227; Pullayya v. Appanna, AIR 1957 AP 846. 47 Narainu v. Sant Ram, AIR 1952 Bail 6. 48 Bindu Kuer v. Lalita Prasad, AIR 1936 PC 304. 49 Jagari Bai v. Ramkhilawan, AIR 1976 MP 106. 50 K.C. Kapoor v. Radhika Devi, AIR 1981 SC 2128. 51 Bhagwan v. Ujagar, AIR 1928 PC 20. 52 Gobardhan Manton v. Hariram Mahta, AIR 1963 Pat 335. 53 Ramgowda v. Bhausaheb, AIR 1927 PC 227. 54 Kanhailal v. Brijlal, AIR 1918 PC 70. 55 Lt. Col. Sawai Bhawani Singh v. Maharaj Jagat Singh, 1996 AIHC 4165(Del) . 56 Sohan Lal v. Chhagan Lal, AIR 1957 Raj 355. 57 Somnath Singh v. Ambika Prasad, AIR 1950 All 121. 58 Md. Wali Khan v. Mohiuddin Khan, AIR 1919 PC 47. 59 Purna Chandra Mallik v. Renuka Jena, AIR 2007 Ori 65, 68-89 (para 11).

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87. ADOPTION Even in the case of an invalid adoption which was made under the belief that it was valid, the principle of estoppel by conduct would apply. 60 Where an adoption was recognised by the family members for a very long time and it altered the position of the adopted boy, if questioned after a long lapse of time, estoppel by conduct would arise in such a case. 61 The doctrine of estoppel cannot confer on a person the status which an adoption alone can give him. But the doctrine can be invoked to prevent a challenge to the adoption by one who has induced the adopted boy to change his position so irrevocably as to render it impossible for him to revert to his original position in his natural family. 62 A Hindu widow's power to take a son in adoption to her deceased husband was extinguished due to the presence of her widowed-daughter-in-law. The senior widow adopted 'X' and induced the daughter-inlaw, to change her status of being a legal heir on the date of the adoption, by marrying the adopted son X. It was held, that the widow was estopped by her conduct both before and after the adoption from changing her ground and challenging the adoption by her of X. 63 In a suit to set aside an adoption brought by the adoptive mother against her adopted son it was found that the plaintiff had represented that she had authority to adopt, and this representation was acted on by the defendant; that the ceremony of adoption was carried out on the faith of this representation; that the marriage of the defendant was likewise on the strength of it celebrated, and the defendant performed the shradha ceremony of his adoptive father. It was further found that the defendant had been obliged to defend a suit brought against him by an alleged reversioner to the estate of his adoptive father, and that for this purpose he had incurred heavy liabilities. It was held that the plaintiff was estopped from maintaining a suit for a declaration that the adoption was without authority and void. 64 There can be no estoppel against law. Therefore when an adoption is not legally valid, no conduct can estop an interested person from challenging the validity of the adoption. Moreover, mere participation in the ceremonies of adoption in the absence of evidence showing consent to such adoption, or act s subsequently to such adoption not leading to the adoption, cannot estop a person from challenging the validity of the adoption. 65 A childless Hindu widow agreed with the plaintiff's father to adopt the plaintiff, stating that her husband had given her authority to adopt. Subsequently she adopted the plaintiff and had his thread-ceremony performed in the adoptive family next day, and administered her husband's property as the minor's guardian for about eighteen months, when she repudiated the adoption and refused to maintain the plaintiff. It was held that the adoption being invalid on the ground that the widow had not as a fact, acted under authority from her husband, she was not estopped from denying the adoption by the fact of her having treated it as effective for the period of eighteen months. In order that an estoppel by conduct may raise the invalid adoption to the level of a valid adoption, there must have been a course of conduct long continued on the part of the adopting family, and the situation of the adoptee in his original family must have become so altered that it would be impossible to restore him to it. 66 Where a person belonging to unreserved category was adopted by a person belonging to reserved category, such a person was not entitled to benefit of reservation, and where such a person got admission without disclosing such adoption, and on subsequent detection of fraud he could not claim for continuance and completion of the course of studies by applying principle of equities and promissory estoppel which would create hindrance in achieving the goal set out by framers of the constitution by providing reservation to the scheduled castes and scheduled tribes. 67 60 Sarat v. Gopal, (1892) 20 Cal 296(PC) ; disagreeing with Vishnu v. Krishna, (1883) 7 Mad 3(FB) ; Kannammal v. Virasami, (1892) 15 Mad 486; Ravji Vinayakraw v. Lakshmibai, ILR 11 Bom 381; Chitko v. Janaki, (1874) 11 BHCR 199. 61 Rajendra v. Jogendra, 14 MIA 67; Rama Krishna v. Tirunarayana, AIR 1932 Mad 198; Umaram Gogoi v. Puruk, AIR 1925 Cal 993. 62 Laxman v. Bayabai, AIR 1955 Nag 241; Fullamoni v. Netrahanda Sahu, AIR 1967 Ori 103. 63 Draupadi v. Sambari, AIR 1958 Ori 242. 64 Kumal Sheriff v. Mi Shwe Ywet, (1875) SJLB 49.

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65 Babu Ram v. Kishan Dei, AIR 1963 All 509 relied on in Satya Gupta v. Om Prakash, 2001 AIHC 1276 (para 45) (All); Tirkangauda v. Shivappa, (1943) 19 Bom 706 : AIR 1944 Bom 40; Ramchandra v. Murlidhar, AIR 1938 Bom 20; Permanand v. Laxminarayan, AIR 1955 Mad 129. 66 Parvatibayamma v. Ramakrishna, (1894) 18 Mad 145. 67 Amar Satyam v. State of Bihar, AIR 2004 Pat 83, 86, (para 12) : 2004 (2) Pat LJR 80 : 2004 (2) BLJ 175. On this point High Court discussed numerous decisions of the Apex Court.

88. ILLATOM ADOPTION Where neither any document was executed by the illatom son-in-law relinquishing his right in his natural family nor was there any evidence to show that since the year of his marriage he was excluded from enjoyment of the joint family properties and had ceased to be a member of the joint family, the illatom son-in-law was not estopped from claiming his share in the joint family property. 68 68 Papanna v. Madappa, AIR 1993 Kant 24 (paras 14-17).

89. MAINTENANCE Where a compromise was reached between the parties upon an application for enhancement of maintenance under Section 127,Cr.P.C., subsequent application underSection 127,Cr.P.C. in the changed circumstances will not operate as estoppel or waiver. 69 Cohabitation after a compromise decree for maintenance obtained by the wife against the husband, would have no effect on the decree. 70 Where the order of maintenance under Section 125,Cr.P.C. was passed after the commencement of the Muslim Women (Protection of Rights on Divorce) Act, 1986 without obtaining the necessary consent of the husband in writing preferring to be governed by the provisions ofS. 125,Cr.P.C., the order will not be binding on the husband and even if he had paid some amount in the first execution petition, he is not estopped from contending that the order was not binding upon him. 71 Where an application under Section 125 , for maintenance filed by the wife against her husband was withdrawn by her by joint application which showed that she had received articles of Jahej as per list submitted alongwith the amount of Mehar and after two years she filed an application under Section 3 of Muslim Women (Protection of Rights on Divorce) Act (25 of 1986) for reasonable fair provision and maintenance for Iddat period, it was held that the withdrawal of the application under Section 125 , CrPC on the basis of mutual settlement would create an estoppel against the wife to move an application under Section 3 of the said Act. 72 Where the wife had accepted maintenance under the ex parte foreign judgment in petition filed by the husband which was held to be a nullity, she was not estopped from filing a subsequent petition for divorce. 73 Where the wife was granted maintenance under Section 18 of Hindu Adoption and Maintenance Act (78 of 1956), she was estopped from claiming the maintenance under Section 125 of CrPC (2 of 1974). 74 Where the husband neglected his wife and she was granted maintenance in her maintenance proceedings without the husband filing a written statement, it was held that the husband was estopped from challenging the award of maintenance. 75 69 Joydel Kumar Biswas v. Maduri Biswas, 1994 Cr LJ 3342 (para 11) (Cal). 70 K.L. Veera Venkataratnam v. Kudupudi Sri Krishna Vara Prasad, AIR 1999 AP 226 (paras 6, 7 and 8); holding B. Anusuya v. B. Rajaiah, AIR 1971 AP 296 not a good law in view of Mahua Biswas v. Swagata Biswas, 1998 (4) JT (SC) 252 and dissenting from P. Ammal v. Amavasikan, AIR 1957 Mad 113. 71 Nazimunnisa Begum v. Abdul Mujeeth, 1995 Cr LJ 3156 (para 7) (Mad). 72 Sayeed Khan Faujdar Khan v. Zaheba Begum, AIR 2006 Bom 39, 40 (para 11). 73 Veena Kalia v. Jatinder Nath Kalia, AIR 1996 Del 54 (para 4).

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74 Bansidhar Mohanty v. Jyoshnarani Mohanty, AIR 2002 Ori 182 : 2002 AIHC 2212 : 2002 (93) Cut LT 24 : 2002 (1) Ori LR 136 : 2003 (1) Civ LJ 34 : 2002 (3) Civil Court C 397 : 2002 (94) Cut LT 329 : 2003 (1) DMC 270 : 2003 (1) Marri LJ 128 : 2003 Mat LR 163 : 2002 (2) Ori LR 15 : 2003 (1) Rec Civ R 108. 75 Dinakara Londe v. Deeksha D. Londe, 2006 CrLJ 448(NOC) (Kar) : 2006 (4) AIR Kar R 142. See also Anant Tukaram Nalawade v. Sou. Latika Anant Nalawade, AIR 2009 (NOC) 210(Bom) : 2008 (5) AIR Bom R 554.

90. FAMILY ARRANGEMENT A widow claiming through her husband cannot impeach a settlement made by her husband with other members of the family whereby he released, by necessary implication, the interest which he had in the property. 76 Where an arrangement was entered by the father and his sons to settle a family dispute and even the normal succession was altered, any party to a family arrangement cannot subsequently question the legality thereof. 77 Where under compromise the presumption reversioners purported to give a portion of the suit properties absolutely to the widow in consideration of her giving up her claim in respect of the other properties, they would be estopped from contending that they are entitled to succeed to the properties given to the widow. 78 Parties taking advantage under a family settlement cannot resile on the ground that the settlement was not registered 79 and the party, who has himself gone against the provisions of the family arrangement, cannot take the plea of estoppel to enforce the said provisions strictly against the other party or parties. 80 Where a Hindu widow the next reversioner and the remote reversioners were all parties to a family settlement entered into in order to bring harmony in the family and to avoid disputes and litigation, and the remote reversioners were greatly benefited by the compromise, after the death of the next reversioner, the remote reversioners, who were the heirs when the succession opened, could not be permitted to say that at the time of the settlement, they had no title and could not enter into a compromise with the next reversioner. The principle of estoppel was clearly applicable under the circumstances. 81 In a family settlement by the award of an arbitrator one reversioner gave up his half share in the property in the possession of widow after her death, it was held that it is not a transfer of spes successionis or an agreement to transfer the same and was not hit by Section 6 of the T.P. Act. The reversioner, having taken advantage of the settlement is estopped from claiming the entire property. 82 Where there was a representation in an agreement that the vendor was the owner of the property and there was no evidence to reveal that the property belonged to the joint family of which the vendor was the Karta , it was held that he was estopped from raising a plea of want of title in a suit for specific performance on the ground that the property belonged to the family. 83 A plea of estoppel can be invoked only in support of or to maintain a family arrangement where the Court finds that the parties should not be allowed to resile from a particular arrangement under which they had taken benefit but where continued enforcement of the family arrangement was wholly impracticable, unnecessary and unjust in the changed circumstances of the case, there was no question of applying the equitable principle of estoppel, especially where the arrangement was only for a limited time or purpose. 84 The Supreme Court granted relief on the ground of promissory estoppel and fair play to a daughter-inlaw who was married pursuant to some arrangement between her father and her father-in-law settling some property in her favour. 85 76 Dadabhoy Framji v. Cowasji Dorabji, AIR 1925 PC 306. 77 Chinnathayi v. Kulasekara, AIR 1952 SC 29; Shriniwas v. Chandra Bhaga Bai, AIR 1958 Bom 420; Partha Talukdar v. Mina Hardinge, AIR 1993 Cal 118 (para 27, relying on AIR 1966 SC 323. See also Radhey Shyam Nigam v. Jyoti Shrivastava, 2001 AIHC 3706 (para 19) (MP) : AIR 2001 NOC 116(MP) ; M.A. Raju v. Annaiah, AIR 2003 Kant 497, 502 (para 22) : 2003 AIR Kant HCR 2137. On this point decisions of various High Courts and that of Apex have been discussed at length. See also Gangotri Bai v. Jeevrakhanlal, AIR 2006 Chh 88, 91 (para 10); Hasan Khani Rawther v. Muhammed Rawther, AIR 2008 (NOC) 1126(Ker) ; Tarabai Prabhakarrao Nalawade v. Kesharbai, AIR 2009 (NOC) 1917(Bom) : 2009 (3) AIR Bom R 467. 78 Krishna Beharilal v. Gulabchand, AIR 1971 SC 1041; Sakerlal v. Chunilal, AIR 1953 Sau 146.

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79 Kale v. Dy. Director of Consolidation, AIR 1976 SC 807; Thayyullathil Kunhikannan v. Thyyullathil Kalliani, AIR 1990 Ker 226. 80 P.G. Hariharan v. Padaril, AIR 1994 Ker 36 (para 32). 81 Ram Charan v. Girijanandani Devi, AIR 1959 All 473. See also Bakshi Ram v. Brij Lal, AIR 1995 SC 395 (para 4). 82 Mukandilal v. State, AIR 1952 All 212. 83 Chand Rani Mehra v. Om Shankar Mehra, AIR 1987 Del 194. 84 P.G. Hariharan v. Padaril, AIR 1994 Ker 36 (para 31). 85 N.A. Mohammed Kasim v. Sulochana, AIR 1995 SC 1624 (para 6).

91. PARTITION DEED One of the brothers alleged that the partition deed effected between the two brothers was only nominal, though he sold the property allotted to him under the deed and utilised the proceeds for himself, it was held that he was estopped from alleging that the partition was nominal. 86 86 Azeez Sait v. Aman Bai, AIR 2003 SC 4444.

92. WIFE The legislature considered it necessary to include within the scope of Section 125 , CrPC an illegitimate child but it has not done so with respect to a woman not lawfully married. Principle of estoppel cannot be pressed into service to defeat the provision of Section 125. 87 87 Savitaben Somabhai Bhatiya v. State of Gujarat, AIR 2005 SC 1809 (paras 8, 16, 17 and 18) : (2005) 3 SCC 636 : 2005 CrLJ 2141.

93. ESTOPPEL BY CONSENT OR COMPROMISE DECREE Decree passed by a court on compromise. Judgment by consent or compromise operates as an effective estoppel, between the parties as a judgment in a contested case may create an estoppel by conduct. 88 Where an order is passed by the court by the consent of a party on some assumption, the party cannot turn round and say that the very foundation of order was erroneous. The earlier compromise decree operates as an estoppel by judgment. 89 In a suit filed against the order of the Road Transports Authority parties came to a compromise and the authority issued orders in terms of the compromise. It was held that the parties had taken benefits under the orders of authority and a writ of certiorari would not be granted. 90 S died leaving a daughter M and subsequently there was dispute between M and B who was S 's father's brother's son. B claimed S 's entire estate by survivorship which dispute was referred to arbitration and subsequently award was delivered. M was given suit properties as absolute owner. Rest of estate was given to B . Later M died in 1929 survived by two grandsons D and J . B died in 1890 survived by his sons L and P . L died in 1940 leaving two sons K and N . There was suit by K and N against D and J claiming property given to M as next reversioners. M 's son having predeceased her, even if the award was invalid, plaintiff's claim was held to be completely answered by plea of estoppel. 91 Where the plaintiff, who was entitled to a sum of money under a compromise entered into by his mother on his behalf, during his minority, withdrew that money under an order of the court at a time when a suit on his behalf challenging the very compromise was pending, the plaintiff clearly elected to abide the compromise. He thereby precluded himself on the broad principles of estoppel from challenging the compromise subsequently on the ground that it was brought about wrongly and against his interests. Where the judgment-debtor and decree holder had made a pre-decretal agreement against execution of the decree and the judgement-debtor, act ing on the agreement,

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refrained from pressing his contention the decree holder was held to be precluded from challenging the agreement. 92 Where the compromise was entered into by all petitioners including the minor through their counsel voluntarily by taking the same in the best interest of all of them and no application was filed by them before the same authority that the aforesaid compromise was wrongly entered into by their counsel as he was not authorised by them, without filing such application the petitioners were estopped by their conduct to challenge the compromise in appeal or revision. 93 Where on the basis of a compromise decree, the tenant had occupied the premises for next fifteen years by getting executed a registered lease deed in his favour and by erecting a new structure in place of old one and also paid enhanced rent as per compromise decree, the tenant could not be permitted to contend, after expiry of fifteen years that the decree was a nullity. The tenant would be bound by the decree. 94 In a compromise, the parties acknowledged their respective title and rights for the purpose of the compromise, with a view to avoid determination of their true nature. Even if one or both the parties may have been under a mistake in respect of the title as was subsequently discovered, that circumstances will not detract from the finality and binding character of the compromise. When a matter is compromised, it binds the parties and mistake has no place therein. 95 If the parties to a suit agree that they shall not proceed with the suit and consequently the suit was dismissed due to non-appearance of the plaintiff, it cannot be said as a dismissal for default as ontemplated under O. IX, R. 8, C.P.C. and the principle of estoppel will bar the defendant from contending so;1 but if Rule 3B of Order XXIII of CPC (5 of 1908) is not complied with while passing a compromise decree in a representative suit, any person who is affected by such decree, but not a party to it, may file a separate suit seeking appropriate relief in regard to such compromise decree or he may file a suit for appropriate relief ignoring the compromise decree and such a suit will not be barred either by the principle of res judicata or estoppel. 2 Persons taking active part in the matter of framing scheme, are estopped by conduct from questioning the validity of the scheme. 3 Where the petitioner-bidder along with others had handed over the possession of the ferry to the Zila Parishad, he was subsequently estopped from challenging the right of the Zila Parishad to settle the ferry. 4 Where a person by a consent decree got his suit against vendee for setting aside sale of certain land dismissed on conditions that the vendee gave up his claim for the costs of the suit, he was estopped by his conduct from claiming any right in that land in subsequently proceedings. 5 But, a compromise entered into in a proceeding under Section 145,Cr.P.C., as to possession, would not create any title as to estop either of the parties in a subsequent civil suit in regard to title. 6 In an insolvency petition filed under the Presidency Towns Insolvency Act by a creditor against a firm and its partners A, B and C, acts of insolvency were proved. By consent of parties, payment of debt in monthly instalments was ordered. In case of default, order of adjudication was deemed to have been passed. Only B and C appealed. It was held that the order cannot be impeached as it was a consent order, and the plea that the court did not find as a fact that insolvency was committed, is not open to B and C who participated in the proceedings. 7 Where a reversioner enjoyed the benefit for a long time under a compromise by the Hindu widow, he is estopped from challenging the compromise. 8 Where a society, already knowing that a party was a member of another society allowed that party dual membership, the society could not thereafter turn around and deny the benefit of membership to that party. 9 An estoppel by consent decree can arise only when the question raised in the subsequent suit was present to the minds of the parties and was act ually dealt with by the consent decree. In order to effect an estoppel it is also necessary that it should appear on record that the question had been put in issue. 10 Any judgement or order passed even on consent of parties by a court having no jurisdiction, cannot operate as an estoppel. 11 Consent decree containing terms contrary to law or public policy, unless set aside in proper proceedings, will operate as res judicata or estoppel. 12 Where a compromise was arrived at between the self-styled leaders of Hindu and Muslim Communities of a village in respect of taking out procession on public roads before mosques accompanied with music and it was filed in proceedings under Section 107,Cr.P.C., it is not binding on the Hindu Community, when the compromise was not arrived at in a suit filed in a representative capacity. The law of estoppel does not debar the parties from asserting their right in a civil court. 13 Where in an earlier writ petition the

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licensee of a corporation filed a compromise which the corporation did not admit and filed its objection resisting the same as a result he abandoned the same and withdrew his writ petition, it was held to be no compromise and he was not bound by the statement in the compromise. 14 When the petitioner himself made application requesting the Superintending Engineer to inspect the site himself to decide the matter properly upon which the site was inspected by him and the petitioner actively participated in the proceedings, after getting the order against himself, he could not be permitted to question the jurisdiction of the Superintending Engineer in deciding the matter. 15 88 Subba Rao v. Jagannadha Rao, AIR 1967 SC 591; Garaj Narain v. Babulal, AIR 1975 Pat 58; Sundarabai v. Devaji, AIR 1954 SC 82; Autar Singh v. Sohanlal, AIR 1970 J&K 26 (FB); Baldevdas v. Filmistan Distributors, AIR 1970 SC 406; Indirabai v. B.A. Patel, AIR 1974 AP 303; Chandi Charan v. Nabagopal, AIR 1957 Pat 365; C.H. Kinch v. E.K. Welcott, AIR 1929 PC 289; Sailendra Narayan v. State of Orissa, AIR 1956 SC 346; Narasimham v. Atchayya, AIR 1954 Mad 739; Krishna Subala v. Dhanpati Dutta, AIR 1957 Cal 59; Karunakar v. State of Mysore, AIR 1963 Mys 153; Kailash Chandra v. Kulamani Chakra, AIR 1956 Ori 210; Hindu Rao v. Shorilal, (1962) 2 Punj 108; Chander v. Indraj, ILR (1959) Raj 1264; Bunga Sarkar v. Raghbir Singh, AIR 1951 Punj 257; Kesavan v. Padmanabhan, AIR 1971 Ker 234; Bhanwarlal v. Raja Babu, AIR 1970 Raj 104; Ibrahim v. Dy. Director Consolidation, AIR 1973 All 379; Shivadas Subarao v. Divekar, AIR 1969 Mys 73; Rikhi Ram v. Dhanpat Rai, AIR 1928 PC 190; H.S.B.C. Bank, U.S.A. v. Silverline Technologies Ltd., AIR 2006 Bom 134, 139 (para 15). 89 Sailendra Narayan v. State of Orissa, AIR 1956 SC 346; Kesavan v. Padmanabhan, AIR 1971 Ker 234; Radha Kishan v. Election Tribunal-cum-Sub-Judge, Hissar (FB), AIR 2000 P&H 1 (paras 28 and 29) : 2000 AIHC 34; Veena Mehra v. International Amusements Ltd., 2000 AIHC 1283 (para 8) (Del); Wester Press Pvt. Ltd., Mumbai v. Custodian, AIR 2001 SC 450 (paras 8, 11 and 12); Radha Kishan v. Election Tribunal-cum-Sub-Judge, Hissar (FB), AIR 2001 P&H 68 (para 29) : 2001 AIHC 1355; A.P. Sarpanchs Association v. Govt. of A.P. (FB), AIR 2001 AP 474 (para 13). 90 M.S.R.T. Copn. v. B.R.M. Service, AIR 1969 SC 329. 91 Dhiyan Singh v. Jugal Kishore, AIR 1952 SC 145; Kanhailal v. Brijlal, AIR 1918 PC 70 : 45 IA 118 followed. 92 Usman v. Mammooty, AIR 1961 Ker 179. 93 Girnari Devi v. Gopal Dass, 2003 AIHC 1126, 1129 (para 8) (P&H). 94 Krishna Kashinath Patil v. S. Mohandas Kamath, 2002 AIHC 578, 585 (para 38) (Bom). 95 Subramoniaru v. State, AIR 1954 Tra Co 128. 1 Ramalingam v. Venugopal, 2000 AIHC 2450 (paras 17, 19 and 20) (Mad) : AIR 2000 NOC 56(Mad) . 2 Siddalingeshwar v. Virupaxgouda, AIR 2003 Kant 407, 413 (para 14) : 2003 AIR Kant HCR 2050 : 2003 (3) ICC 702 : ILR (Kant) 2003 (4) Kar 2559 : 2003 (7) Ind LD 639. 3 Janaradana v. Cochin Dewaswom Board, AIR 1957 Tra Co. 307. 4 Samsuddin v. State of W.B., 1996 AIHC 930(Cal) . 5 Ibrahim v. Dy. Director, Consolidation, AIR 1973 All 378. 6 Gopidas v. Madho, ILR 45 All 162. 7 Sita Ram Sawhney v. Kundanlal Sahni, (1968) 1 Cal 257. 8 Ekkari Ghosh v. Chittarekha, AIR 1958 Cal 447. 9 S.K. Tandon v. Registrar of Co-operative Societies, 1997 AIHC 378, at pp. 386 and 387 (Del). 10 Gokul Prasad v. Hari Saran Das Mahant, (1947) 22 Luck 270. 11 Ahsan Dar v. Md. Dar, AIR 1963 J&K 15; Bhurey v. Pri Bux, (1973) 1 All 486. 12 Bhima Rama v. Abdul Rahib, AIR 1968 Mys 184. 13 Shaikh Piru Box v. Kalandipati, AIR 1970 SC 1885; reversing Shaik Piru v. Kalindipati, AIR 1964 Ori 18. 14 M.S. Baliga v. Mangalore City Corpn., AIR 1998 Kant 76 (para 24). 15 Satya Narain v. State of Rajasthan, 2003 AIHC 3163, 3164 (para 7) (Raj).

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94. ESTOPPEL BY OPTION Where the claimant under the fire insurance policy got the dispute decided before the Consumer Forum and thus gave up right of adjudication by an Arbitrator, he could not subsequently agitate the dispute before arbitrator. 16 16 The New India Assurance Co. Ltd. v. R.K. Industries, AIR 2006 (NOC) 1195(Chh) : (2005) 3 Arbi LR 412. See also Indian Airlines Officers' Assn. v. Indian Airlines Ltd., (2007) 10 SCC 684, 704-05 (para 36) : AIR 2007 SC 2747.

95. CONTRACT AND AGREEMENT Where the first contract of sale between the parties was held to be not a concluded contract and opportunity was given to the plaintiff by the High Court to amend the plaint and plead that there was a concluded contract at the second meeting between the parties which he refused to do, no relief could be given on the basis of such second agreement. 17 Where a contractor-petitioner realised fees and tolls on vehicles entering a Zila Parishad Territory but he did not remit the part of the amount to the Zila Parishad, it was held that the petitioner was under an obligation to pay it back to Zila Parishad, even if the contract was void. However, the Zila Parishad could not recover the amount due as arrears of land revenue. 18 The bidder, taking part as per procedure adopted, could not challenge the said procedure as being illegal and contrary to the principles of natural justice and fair play. 19 Where all the tenders for contract having been found defective, the tenderers were given opportunity to remove the defects after extending the last date and the petitioner also availed this opportunity, he could not challenge the said act of giving the opportunity. 20 Rate of payment accepted in the contract cannot be subsequently revised after the completion of the job. 21 The Government entered into an agreement to sell land to the respondents who constructed houses on the said land and resided there for a period of almost twenty four years, in the circumstances of case, the Govt. was estopped from serving them with notice that the transactions were in breach of the provisions of the Act, though there was no time bar. 22 The Food Corporation of India entered into an agreement to hire plinth from a company for a period of three years with an option to extend the same for one year and the company constructed the plinth by taking a loan and investing the same but the corporation vacated the plinth before three years. It was held that the corporation could not do so, though the agreement was not registered. 23 Where the seller failed to raise the plea that the agreement to sell was only as a security for the repayment of a loan advanced by the purchaser in an earlier suit filed by the purchaser for permanent injunction restraining her from alienating the suit property, she would be estopped from raising that plea in a suit for specific performance of the agreement of sale. 24 Once a person gives a certificate of final settlement of his contractual claims, it will be rather unfair on his part to go back on his words so as to ask for settlement of some new claims allegedly remaining to settle under the same contract on the plea of being misled in giving such certificate or that he gave such certificate under duress or under some compulsion. 25 However, where the contractor accepted the bill as full and final settlement contrary to the very terms of the contract, no estoppel would be attracted against the same. 26 A person signing an agreement and taking benefit from it, cannot wriggle out of it and demand benefit 27 and where the respondent, alongwith other draftsmen agreed to pay enhanced licence fee and others started to pay also, he was estopped from challenging the rise in licence fee. 28 Also the party cannot invoke the principle of promissory estoppel in case he subsequently dishonours the terms and conditions of the agreement. 29 Where parties agreed that agreement including arbitration clause between the parties would be governed by laws of India, the arbitral award to be deemed to be a domestic award made under Part I of Arbitration & Conciliation Act (26 of 1996) though made on foreign soil according to the International Court of the Arbitration of International chamber of commerce (ICC) Rules and Procedure. Further, it was held that the recourse to a Court under Section 34 of the said 1996 Act, not being a derogable provision could not be said to have been waived by subscribing to ICC Rules of Arbitration. 30

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There was a clause in the notice inviting tenders (NIT) disqualifying those tenderers facing blacklisting proceedings. The tenderer chose to file his tender pursuant to the notice inviting tenders without reserving his right to challenge the said clause or challenging the same subsequently. It was held that he was bound by the said clause and was estopped from challenging its validity. 31 Where the contract was not entered in the prescribed manner and form, it was not binding and could not be enforced. 32 In a contract entered into by the Electricity Board, the Board was not bound by the act s of its officer done on certain basis, not mentioned in the terms of the contract. 33 The claim for the extra-expenditure by the contractor based on a mere internal correspondence namely a letter written from a lower official to an higher official of the department would not attract the principles of promissory estoppel as the parties were clearly bound by the agreement in the form of the contract. 34 In respect of a further claim by the contractor after accepting the final bill, it was held that acceptance of such a bill would not mean that the contracting company was not entitled to raise any claim as it was not shown that while accepting the bill, it would not raise any further claim. Hence, it was not estopped or precluded from raising any claim. 35 The principle of promissory estoppel has no application in a case of concluded commercial contract and to persons not parties to the contract. 37

36

To attract the principle of estoppel, it is not necessary that there must be a contract in writing entered into between the parties. 38 The principle of estoppel would not apply for that part of a contract which, being against the rules, was not enforceable. 39 17 Ganesh Shet v. C.S.G.K. Setty, AIR 1998 SC 2216 (para 10). 18 Surendra Kumar Rai v. Zila Parishad, Jhansi, AIR 1997 All 387. 19 H.S. Sethi v. Union of India, 1996 AIHC 3369 (para 11) (Del). 20 N U Calcutta Construction Co. v. National Aluminium Co. Ltd., AIR 2000 Ori 186 (para 13). See also Sushila Devi Jhawar v. State of Tripura, AIR 2007 Gau 169, 171 (para 16). 21 Badan Lahkar v. State of Assam, 1996 AIHC 4632 (paras 5 and 6) (Gau). See also S. Srinivasulu v. APSRTC, AIR 2006 (NOC) 659(AP) : 2005 (6) Andh LD 829. 22 Abdul Hameed K. v. State of Karnataka, 1999 AIHC 693 (paras 5, 7 and 8) (Kant). 23 Food Corporation of India v. Babulal Agrawal, AIR 2004 SC 2926 (paras 7 and 8) : (2004) 2 SCC 712. 24 C.C. Karthiayani Amma v. T.V.G. Namboodiri, 1996 AIHC 5291 (para 5) (Ker). 25 Union of India v. Raj Brothers, AIR 2000 Gau 132 (paras 8 and 13). 26 Pandit Construction Company v. Delhi Development Authority, 2007 AIHC 3636, 3643 (para 30) (Del). 27 Shitla Prasad Dubey v. State of U.P., AIR 1999 All 260 (para 28) : 1999 AIHC 4168(All) . see also Bhopal Singh v. Chatter Singh, AIR 2000 P&H 34 (para 10); Anil Shyamsundar Agre v. State of Maharashtra, AIR 2007 (NOC) 1097(Bom) : 2007 (2) AIR Bom R 776; Deo Narayan Jaiswal v. Special Judge (E.C. Act) Court No. 5, Deoria,AIR 2008 All 163, 169 (paras 23 and 24); Dipti Engineering, Bharuch v. General Manager, Gujarat State Financial Corpn. Ltd., Ahmedabad, AIR 2008 Guj 169 (paras 9, 10 and 12). 28 Municipal Council, Pali v. State, AIR 2000 Raj 157 (para 6). See also Kundan Mal v. District Collector, Pali, AIR 2000 Raj 152 (para 8); N.P. Ponnappa v. State of Karnataka, AIR 2000 Kant 384 (para 11); Haryana Co-op. Transport S.W. Assocn. v. State of Haryana, AIR 2000 P&H 231 (para 13); Commissioner of Customs v. Bureau Veritas, (2005) 3 SCC 265, 272 (paras 13 and 14) : AIR 2005 SC 1292; State of Maharashtra v. Ramdas Shrinivas Nayak, (1982) 2 SCC 463; Bhavnagar University v. Palitana Sugar Mills (P.) Ltd., (2003) 2 SCC 111 : AIR 2003 SC 511. 29 Meera Devi v. Varanasi Development Authority, 1999 AIHC 1401 (para 8) (All). See also Meera v. State, 2001 AIHC 2115 (paras 9 and 10) (Raj). 30 Nirgma Ltd. v. Lurgi Energie Und Entsorgung GMBBH, Germany, AIR 2003 Guj 145, 154 (para 10), relying on Bhatia International v. Bulk Trading SA, AIR 2002 SC 1432 : (2002) 4 SCC 105 and International Tank and Pipe Sak v. Kuwait Aviation Fuelling Co. KSC, (1975) 1 All ER 242(CA) .

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31 Satyendra Kumar Construction Pvt. Ltd. v. State of Bihar, AIR 2007 (DOC) 21(Pat) : 2006 (3) PLJR 508. 32 B.C. Raju v. Karnataka Housing Board, AIR 1995 Kant 356 (para 12). 33 T.N. Electricity Board v. N. Raju Reddiar, AIR 1996 SC 2025 (para 9), reversing OSA No. 112 of 1987, Dt. 6-9-1995 (Mad). 34 State of Karnataka v. Stellar Construction Co., AIR 2003 Kant 6, 15 (para 31) : 2002 AIR Kant HCR 2568 : 2002 (3) ICC 676 : ILR (Kant) 2002 (3) Kar 3369 : 2002 (3) Kant LJ 551. 35 Bharat Coking Coal Ltd. v. Annapurna Construction, AIR 2003 SC 3660 (para 9) : (2003) 8 SCC 154. 36 Trident Tubes Ltd. v. Govt. of Bihar, AIR 1995 Pat 50 (para 22). 37 H.P.A. International v. Bhagwandas Fateh Chand, Daswani, AIR 2004 SC 3858 (para 98) : (2004) 6 SCC 537. 38 State of Orissa v. Mangalam Timber Products Ltd., (2004) 1 SCC 139 (para 4) : AIR 2004 SC 297. 39 M.D., Army W.H.O. v. Sumangal Services Pvt. Ltd., AIR 2004 SC 1344 (para 103) : (2004) 9 SCC 619.

96. LANDLORD AND TENANT Where a notice was sent by a tenant that he would vacate the premises and it was accepted by the landlord, the tenant was estopped from claiming that the notice was defective. 40 Mere giving of undertaking by the tenant to vacate the premises for obtaining stay to the execution of eviction decree, does not foreclose a tenant from availing of any statutory remedies available to him by way of appeal or revision or under the constitution. In the instant case, the tenants had no doubt requested for a stay of the execution of the decree. That had been granted by the High Court subject to furnishing of an undertaking by the tenant to vacate the premises within a period of six months. But the tenants did not in fact give any such undertaking. Even if they had, they could not be denied the right to appeal to the Court on any principle of estoppel unless the landlord could show that the tenants thereby gained an advantage which otherwise was not available to them. As no undertaking was in fact given by the tenants, the question of deriving any advantage by the tenant on the basis of such undertaking therefore did not arise. 41 The tenant appeared before the tenancy authorities and made a voluntary statement that he was not interested in purchasing the suit property and handed over physical possession of it to the landlady and also alongwith his brother acted as a witness during the execution and registration of the sale-deed in favour of the third party, he could not subsequently challenge the validity of the proceedings. 42 Where the landlord states that he does not require the premises for a limited period and the tenant accepts it, the landlord is estopped from claiming possession within that period. 43 When the tenant did not raise the objection that no decree for eviction could be passed for want of permission of the rent controller for eviction, but raised that objection in execution proceedings, it was held that the tenant would be estopped from raising such objection when he failed to do so when the decree was passed. 44 Estoppel will prevent the landlord from raising objection to the competency of the legal representative of deceased tenant to appeal from the Tribunal's order, whom she herself impleaded as respondent in the pleadings before the Tribunal. 45 Where a landlord took proceedings under the Rent Control Act on the ground that respondent was a tenant it was held that he was estopped in a subsequent civil suit to assert that the respondent was a licensee. 46 The Madras Act 26 of 1948 authorising the Government to take over Estates does not authorise the Government to repudiate a lease created by them, and does not free them from estoppel to which they are subject as lessors. 47 Even if no formal tenancy is created estoppel would arise, if the position accepted is virtually that of a tenant. 48 Where it was not shown that the lessee had committed any fraud or violated any covenant of the lease, the lease could not be cancelled. Once the lease was executed for a period of 30 years and lessee had made investments, the doctrine of promissory estoppel would apply. Even if there was some defect in the grant of lease, it was for the state to rectify the defect instead of penalising the lessee. 49 Where a lessor, being either ignorant of his rights or uncertain of their extent, by his own act or representation created or induced in the mind of his tenant a mistaken belief that he had a

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permanent interest in the land and might build thereon, and the tenant, relying upon the act or representation so made, treated his interest as permanent and incurred expense in building which he would not otherwise have done, it was held that the lessor was estopped from denying the truth of that which it represented. 50 In 1894 the appellant agreed in writing to give the respondent a lease of a plot of land "for the purpose of erecting buildings....... from year to year at an annual rental of Rs. 180", and the respondent took possession. In 1903 the respondent wished to build a pucca house upon the land, and in answer to inquiries the appellant wrote a letter stating that the lease was a permanent lease though the rent was liable to enhancement. Acting upon that letter the respondent built a house; the appellant knew of the building and received a bonus in respect of it. In 1916, the appellant sued to eject the respondent from the land. It was held that, whether or not the letting was a permanent one upon the construction of the agreement, the statement in the letter that it was so was a representation of fact, not an expression of opinion and that the appellant was estopped from denying that the letting was of that character though subject to enhancement of rent. 51 Where the tenant admitted before the Court that there was a lease for a specified period on a monthly rental of the specified sum and the lease was admitted to be a valid lease in his written statement, he could not resile from that position. 52 Where a landlord accepts rent from the successors of the lessee he is estopped from contending that the successor-in-interest of lessee has no interest in land. 53 Withdrawal by the landlord of rent deposited by the tenant under the Rent Control Act, does not constitute waiver of notice to quit. 54 It is only when the landlord accepts rent with the intention to treat lease as subsisting, the acceptance of rent can be regarded as waiver. 55 Withdrawal by landlord of rent deposited by the tenant beyond due date, has no effect on the question of default by tenant in an eviction petition. 56 The acceptance of rent without objection or grievance by the landlord after the forfeiture of a lease or in the event of failure to perform a statutory obligation by a tenant would amount to waiver. 57 Where in an eviction suit filed by landlord against the tenant, the tenant failed to raise objection regarding non-giving of notice by the landlord before trial Court, it was held that the same could not be raised subsequently at appellate stage and it would amount to waiver on the part of the tenant. 58 However where rent is a accepted under protest there is no estoppel.

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The tenant is estopped from denying the title of person to whom he is paying rent 60 and once he has taken the plea that he was entitled to possession of the suit land in his own rights, he cannot subsequently take the plea that he was a tenant. 61 Where the tenant had accepted one of the two coowners initiating proceeding for eviction against him, he was estopped from contending that since the other two co-owners had not joined the proceedings of eviction on the basis of bona fide requirement, it was not maintainable. 62 Where the appellant admitted that the respondent was his landlord, he was estopped from denying the relationship between him and the respondent as such. 63 Where a tenant surrendered his tenancy right in favour of a registered society without the consent of the landlord and handed over the possession of the premises, mere acceptance of rent tendered by the tenant in the name of the registered society could not constitute legal and valid sub-tenancy in favour of the registered society and the landlord was not estopped from seeking eviction on the ground of unauthorised sub-letting. 64 A tenant would be estopped from claiming anything contrary to what he had agreed to in writing. 65 The principle of estoppel cannot come in aid of the sub-tenant who was an unauthorised occupant to defeat the claim of the landlord. 66 The mere fact that the landlord was aware of sub-tenancy, is no ground to estop the landlord from saying that the sub-tenancy is illegal. 67 Where the tenant had indicated in Form 'C' at the time of allotment that his brother and his wife would be occupying the premises and the Form 'C' was accepted by the Development Board, his tenancy could not be terminated subsequently on the ground of sub-letting and be regularised in favour of the brother of the tenant. 68 Where the landlord himself inducted the tenant in violation of provision of the Rent Control Act without allotment order by the competent authority, such a landlord disentitled himself from seeking release and he was estopped to take a plea that he was not a tenant but an unauthorised occupant and the tenant was also estopped by his conduct to deny the title of landlord in a case for eviction and arrears

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of rent. 69 Where a landlord himself inducted a person as a tenant without complying with provisions of the Rent Act acquiescence by conduct and principle of estoppel was attracted against him and his release application was liable to be ignored. 70 Where the landlady had gifted the premises in favour of her daughter before the latter filed the eviction petition against the tenant, the petitioner could not claim benefit of estoppel on the basis of the judgment in the previous suit for injunction filed by the tenants against the previous landlady in which he had admitted that of he was a tenant under the previous landlady. 71 A 'service tenant' cannot question the title of the successor company on the ground of ownership as one can be a landlord without being an owner. 72 40 Dipak Kumar Ghosh v. Mirasen, AIR 1987 SC 759. 41 A.V.G.P. Chettiar & Sons v. T. Palanisamy Gounder, AIR 2002 SC 2171 (paras 22 and 23) : (2002) 5 SCC 337. 42 Radhabai Balkrishna Deshpande v. Babu Dhondu Shewale, 2000 AIHC 4219(Bom) . 43 Inder Mohan Lal v. Ramesh Khanna, AIR 1987 SC 1986. 44 Kamlabai v. Mangilal, AIR 1988 SC 375. 45 Banaridas v. Smt. Mewa Devi, ILR 1980-2 Del 925. 46 Ramachandra Sahu v. Pramila Sahu, AIR 1992 Ori 183. 47 Govinda Reddy v. Pattabhi Rama, AIR 1954 Mad 161. 48 India Electric Works & Co. v. B.S. Mantosh, AIR 1956 Cal 148; following Krishna Prosad Lal Singh Deo v. Baraboni Coal Concern Ltd., AIR 1937 PC 251. 49 Atar Singh v. Addl. Chief Revenue Commissioner, 2006 AIHC 1931(Utr) . 50 Forbes v. Ralli, (1925) 27 Bom LR 860 : 52 IA 178 : ILR 4 Pat 707; Bansi Singh v. Chankradhar Prashad, (1938) 17 Pat 358. 51 Forbes v. Ralli, ibid; Bahir Das Chakravarti v. Nobin Chunder Pal, (1901) 29 Cal 306. For an example of estoppel by acceptance of rent see Narendra Bahadur Tandon v. Shanker Lal, AIR 1980 SC 575 at 579. 52 Rajendra Pratap Singh v. Rameshwar Prasad, (1998) 7 SCC 602. 53 Narendra Bahadur Tandon v. Shanker Lal, AIR 1980 SC 575; Devassia v. Micheal Joseph, AIR 1990 Ker 261 (acceptance of rent after notice-no waiver.) 54 Bhagat Ram v. Keshab Deo, AIR 1965 Assam 55. 55 Kamaksha Prasad v. Paruatibai, AIR 1960 MP 192; Abdul Karim Bhai v. Abdul Rehman, AIR 1960 MP 16. 56 Kali Kumar v. Makhan Lal, AIR 1969 Assam 66. 57 Sen & Co. v. Mani Mala Sadhu, AIR 1980 Cal 155. 58 Jagdish Prasad v. Vishnu Kumar, 2004 AIHC 3790, 3793 (paras 14 & 15) (Raj). 59 Basant Lal v. State of U.P., AIR 1981 SC 170. 60 Rajendra Kumar v. District Judge, Jaunpur, AIR 1996 All 178 (para 11). See also Harivansh Lal Rabra v. Madan Lal Jolly, 1997 AIHC 2068 (para 17) (Del); Nopany Investments (P) Ltd. v. Santokh Singh (HUF), (2008) 2 SCC 728, 73435 (para 13) : AIR 2008 SC 673, Tribhovandas Haribhai Tamboli v. Gujarat Revenue Tribunal, (1991) 3 SCC 442. 61 Voocha Pitchayya v. Gade Venkateswara Rao, 1997 AIHC 1261 (para 9) (AP). 62 Yashwant Prabhakar Kamble v. Prasad Narhari Karanjikar, 1998 AIHC 1388 (para 9) (Bom). 63 Gopilal v. Manilal, 2005 AIHC 3741, 3742 (para 10) (Bom). 64 Ram Saran v. Pyare Lal, AIR 1996 SC 2361.

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65 Gujarat State Road Transport Corporation v. Yusuf Ali Ahmad Ali, 1997 AIHC 2611 (para 12) (Guj). 66 Savitri Devi v. IInd Addl. Dist & Sessions Judge, Deoria, 1998 AIHC 1371 (para 49) (All). 67 Babubhai Jugalkishore N. Bhatt v. Jaichand Jayantilal, 1998 AIHC 4271 (paras 15 and 16) (Guj). 68 Dattaram S. Vichare v. Thukaram S. Vichare, AIR 2000 SC 103 (para 9), reversing WP No. 123 of 1989 Dt. 3-121990 (Bom). 69 Ram Shanker Yadav v. XVth Addl. District Judge, Kanpur, 2003 AIHC 745, 746, 748 (paras 18, 27) (All). 70 Jaadishon v. District Judge, Kanpur Nagar, 2002 AIHC 2438, 2440 (para 12) (All). 71 Devammadas v. V. Ramachandran, AIR 2005 NOC 404(Ker) . 72 Kamla Rani v. Texmaco Ltd., AIR 2007 Del 147, 149 (paras 24-30).

97. ESTOPPEL AND PRE-EMPTION Where a pre-emptor assured the purchaser that he would not pre-empt, it does not amount to making any representation of any fact, except showing his intention at that time as a fact which cannot be revoked. There is no estoppel unless the relationship between the parties is such that the truth of the representation is a necessary step in the constitution of the action. 73 Where the vendor informs the pre-emptor about his intention to sell, orally or otherwise, and the preemptor refuses to purchase the property, he is disqualified from subsequently maintaining a suit for pre- emption as he is estopped from seeking to enforce his right by virtue of the provisions of Section 115. 74 There would be no waiver of the right of a person to pre-empt if his consent is not obtained prior to the sales. 75 73 C & D Sugar Co. v. Canadian National Steamships, AIR 1947 PC 40; Govindsa Marotisa v. Ismail, AIR 1950 Nag 22, 29. 74 Gopi Nath v. Nand Kishore, AIR 1952 Ajmer 26; Narayan Das v. Jagan Nath, AIR 1950 MB 85; Bagga Singh v. Chuni Lal, AIR 1952 Punj 255; Abdul Kaseem v. Babulal, 1953 Bhopal 26; Ravindra Khanwalkar v. Ganpati Khanwalkar, AIR 2007 MP 225, 228 (para 11); Rukamani Devi v. Prabhu Narayan, AIR 2007 (NOC) 1748(Raj) . 75 Fakira v. Ganpat, AIR 1954 Nag 92.

98. DECREE HOLDER AND JUDGEMENT-DEBTOR Where conduct of plaintiff unequivocally showed that he was not willing to accept trial court's decree, the mere fact that he sought the execution of the decree cannot disentitle him to the relief he sought in the suit. 76 Creditors under a decree who applied for reteable distribution of assets held in an executing court of another decree, cannot challenge that decree on the ground that the court had no territorial jurisdiction to pass that decree. 77 A judgment-debtor is estopped, after sale in which he took part, from contending that sale is liable to be set aside on the ground that the sale was not advertised 78 , so also on the ground of non-mention of encumbrance on the property in question in the sale proclamation. 79 A decree holder who induces the judgment-debtor to pay the decretal amount, is estopped from questioning the decree. 80 The decree holder who objected to the sale of the property of judgmentdebtor, allowed the sale to proceed and also shared the sale proceeds, is estopped later to contend that the sale was void. 81 Where a judgment-debtor mortgagor agreed, after the preliminary decree, to pay higher rate of interest for extending the time to pay the mortgage debt, he would be estopped from objecting to the agreement in execution. 82 Where the judgment-debtor did not raise the plea that all the claims in separate suits filed regarding the same property should have been consolidated in one suit on service of the sale notice, he was prevented to raise such a contention in appeal. He was

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estopped also because he had consented to the decrees being passed separately. 83 Where the legal representatives of a judgment-debtor, who expired during the pendency of an appeal, prosecuted the appeal without getting impleaded, they could not raise the point that the judgment in appeal passed after the death of the judgment-debtor was unenforceable in law. 84 76 Ramesh Chandra v. Chunilal, AIR 1971 SC 1238. 77 Abdul Jabbar v. Venkata Sastry, AIR 1969 SC 1147. 78 Karnataka Bank v. K. Shamanna, AIR 1972 Mys 321. 79 Tippamma v. Annarao, 1999 AIHC 847(Kant) . 80 Bhrigunath v. Annapurna, AIR 1934-1943 Pat 644. 81 Bonagiri v. Karumuri Venkatanarasimham, AIR 1938 Mad 1004. 82 Subramania v. Corera, 48 MLJ 121 : AIR 1925 Mad 457. 83 Annapurna Industries v. Syndicate Bank, AIR 1993 Kant 279 (para 9). 84 Mina Devi Kedia v. Sita Devi Kedia, 1996 AIHC 5313 (para 4) (Cal).

99. ESTOPPEL AS TO VALUATION OF SUIT OR APPEAL In respect of a suit which is not required to be valued according to the real or market value, the parties are not precluded from showing, for the purposes of an appeal to the Supreme Court, under Art. 133(1)(a ) of the Constitution of India ; that the value of the subject-matter in a court of first instance was Rs. 20,000 or over, where the question of valuation had not been decided at an earlier stage and where the lower valuation put upon the plaint had not involved recourse to a different forum. 85 The parties who undervalue their documents, for the purpose of payment of stamp duty, cannot be allowed to claim that their own documents do not reflect the correct market value. 86 If the plaintiff does not correct the valuation of suit in trial court at the proper stage, he is precluded from pleading undervaluation for changing the forum of appeal. 87 In the absence of any evidence that defence was prejudiced by undervaluation of the suit property by the plaintiff in the plaint, the plaintiff is not estopped from claiming compensation of suit property at market rate on the date of filing suit even if the market rate exceeded valuation given in plaint. 88 85 Annapoorna Cotton Mills v. S. Bhaduri, AIR 1958 Cal 187; Zaraton Nessa v. Faizur Rahman, AIR 1955 Assam 126; Kuppanna v. Peruma, AIR 1961 Mad 511; Venkatasubba Iythal v. T. Venkatarama Upadhyaya, ILR 1960 Mys 931; see contra:-- Budhi Panigrahi v. Bhagirathi, AIR 1962 Ori 159. 86 Krishi Utpadan Mandi Samiti, Sahaswan v. Bipui Kumar, (2004) 2 SCC 283, 285 (para 7) : AIR 2004 SC 2895. 87 Koshalya Wanti v. Jeet Singh, AIR 1963 Punj 400. 88 Srinivas v. Narayan, AIR 1971 Mys 174.

100. NON-FILING OF APPEAL Where the High Court decides the matter on the basis of an earlier judgment, which decision has not been challenged by the Revenue by filing an appeal, the Revenue must, therefore, be bound by the principle laid down therein and it is not open to the revenue to accept the judgment in the case of the assessee in that case and challenge its correctness in the case of other assessees without just cause; 89 but a three-judge Bench of the Apex Court has expressly repelled such a contention and has held that non-filing of an appeal in one matter would not act as a bar against the State in filing appeal in another matter where similar point may be involved. 90

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89 Union of India v. Kaumudini Narayan Dalal, 2001 AIR SCW 4757 : 249 ITR 219 and Commissioner of Income-tax v. Narendra Doshi, (2002) 254 ITR 606 as referred in I.T.C. Ltd. v. Person Incharge, A.M.C., Kakinada, AIR 2004 SC 1796 (para 8) : (2004) 2 SCC 794. 90 State of Maharashtra v. Digambar, AIR 1995 SC 1991 as referred in I.T.C. Ltd. v. Person Incharge, A.M.C., Kakinada, AIR 2004 SC 1796 (para 9) : (2004) 2 SCC 794 and applied in B.J. Akkara Col. v. Government of India, (2006) 11 SCC 709, 728 (para 24) : (2006) 9 JT 125.

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Ratanlal & Dhirajlal: Law of Evidence, Updated 23rd Edition/THE INDIAN EVIDENCE ACT (ACT 1 OF 1872)/PART III PRODUCTION AND EFFECT OF EVIDENCE/CHAPTER VIII ESTOPPEL/S. 115.

101. ESTOPPEL AGAINST APPEAL A vendee who has filed an appeal by special leave in the Apex Court against a pre-emption decree passed against him, is not precluded from proceeding with appeal merely because he has withdrawn the pre-emption price deposited by the pre-emptor in the Court below after the grant of special leave to appeal. 91 91 Babu Ram v. Baij Nath Singh, AIR 1961 SC 1327 (1330) (para 12).

102. ATTESTATION Attestation proves no more than that the signature of an executing party has been attached to a document in the presence of a witness. It does not involve the witness in any knowledge of the contents of the deed. It can at the best, be used for the purpose of cross-examination, but by itself, it will neither create estoppel nor imply consent. 92 The Privy Council has held that attestation of a deed does not by itself estop the person attesting from denying that he knew of its contents or that he consented to the transaction which it effects and that knowledge of the contents of a deed is not to be inferred from the mere fact of attestation. 93 But an attesting witness can be shown by independent evidence to have fully understood the particular transaction so that his attestation may support the inference that he was a consenting party and might, therefore, be estopped from questioning the effectiveness of the transaction attested by him. It is, however, a question of fact and should be determined with reference to circumstances of the case. 94 If A, with the knowledge that the recital in a sale-deed that the land, thereby conveyed, belongs to B, and is in his (B's) enjoyment as owner, attests the sale-deed executed by B in favour of the plaintiff he is estopped from setting up thereafter his title to the land, even though he (A) might be the certified purchaser of the same in a previous court auction. 95 A person, who to his knowledge is entitled to one-half share in a shop and who allows his co-sharer to mortgage the whole shop, signing the mortgage deed as a witness and identifying the mortgagor and mortgagee at the time of registration, is estopped from bringing a subsequent suit against the mortgagee claiming a declaration of his right to one-half share in the mortgaged property. 96

Where one brother attested the sale deed executed by another brother in respect of a joint property, without telling the purchaser that the vendor had no full saleable interest, he must be held to have consented to the transaction and is estopped from challenging the transaction. 97 Where the plaintiff attested a document with full knowledge of its contents, he is estopped from challenging the validity of the gift made under the document and he cannot dispute the nature of possession of the defendant. 98 Where the mortgage of a house by the wife as its owner is attested by the husband, he is estopped from claiming a share in the house. 1 Where the deed of alienation by a Hindu widow is attested by the next reversioner with full knowledge of contents it is not open to the reversioner to challenge the alienation subsequently. 2 Mere attestation will not create an estoppel. Unless it is proved that the contents were known to the attestor as well as the circumstances and he did not protest against the recitals. 3 Where the father attests the sale-deed of the co-parcenary property, his son cannot be estopped from claiming the property as he gets it in his own right by birth and not by succession. 4 A executed a sale deed in favour of C and D; and C and D attested a subsequent sale deed made by A in favour of Y. It was held that mere attestation by C and D did not estop them from claiming title under the former sale deed. 5 Admission is only a piece of evidence and can be explained. It does not conclusively bind a party unless it amounts to an estoppel. Value of an admission has to be determined by keeping in view the

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circumstances in which it was made and to whom. A mere failure to object to a wrong averment cannot be placed on a footing higher than an admission i.e. estoppel. 6 Attestation by reversioner is not proof of necessity where there is no recital about necessity.

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92 Nandalal v. Jagat, ILR 44 Cal 186(PC) ; Lakhpati v. Rambodh Singh, AIR 1915 All 255; Harikishen v. Kashi, AIR 1914 PC 90; Annadurai v. Mayazaghu, 2001 AIHC 1677 (para 14) (Mad) : AIR 2001 NOC 44(Mad) ; K. Velayutham Pillai v. T. Velayutham Pillai, (2009) 1 MLJ 74, 80 (para 27). 93 Pandurang Krishnaji v. Markandeya Tukaram, (1921) 49 Cal 334 : 24 Bom LR 557 : 49 IA 16 : AIR 1922 PC 20. 94 Pandurang v. Markendeya, AIR 1922 PC 20; Rajammal v. Saba Pathi, AIR 1945 PC 82; Sarkar Barnard & Co. v. Alak Manjary, AIR 1925 PC 89; Imam Ali v. Baijnath, ILR 33 Cal 613; Rup Narain v. Gopal, ILR 36 Cal 780; Mahadevi v. Neelamoney, (1896) 20 Mad 269; Lakhpati v. Rambodhi Singh, ILR 37 All 250 : AIR 1915 All 255; Bhagwat Rai v. Gorakh, AIR 1934 Pat 93; K. Govindan v. C. Chellamma, AIR 1959 Ker 237; Raibhan v. Namdeo, AIR 1952 Nag 96; M.C. Singh v. C.N.M. Devi, AIR 1957 Mani 32; Ramgopal v. L. Mohanlal, AIR 1960 Punj 226; Naveli v. Kailan, 1933 Lah 733; Gangadhara Rao v. G. Ganga Rao, AIR 1968 AP 291; Jegannatham v. Kunjitha Patham, AIR 1972 Mad 390; Damodaran v. D. Leelavathi, AIR 1975 Mad 278. 95 Kandasami Pillai v. Nagalinga Pillai, (1912) 36 Mad 564. 96 Shori Lal v. Damodar Das, (1937) 18 Lah 783. 97 Dhannalal v. Bhaiyalal, AIR 1956 MB 16. 98 Ganghadhara Rao v. G. Ganga Rao, AIR 1968 AP 291. 1 Damodaran v. D. Leelavathi, AIR 1975 Mad 278. 2 Jagannath Singh v. Rupnarain, AIR 1960 Pat 564. 3 Rajhu Naicker v. Anantha Krishna Naicker, (1992) 1 MLJ 163; Entire case law discussed Ramaswamy Gounder v. Anantapadmanabha Iyer, (1971) 1 MLJ 392 distinguished). 4 Santhappan v. Guruswami Gounder, ILR 1965 Mad 287. 5 Gayadhar Mohanty v. Bidy Adhar Behera, ILR 1964 Cut 719. 6 Rakesh Wadhawan v. Jagadamba Industrial Corporation, AIR 2002 SC 2004 (para 7) : (2002) 5 SCC 440. 7 Satyanarayana v. Venkanna, AIR 1933 Mad 637.

103. ADMISSION Admission made by a party in a previous suit is binding on his successor in interest in the subsequent suit. 8 Where the President of a Municipal Council admitted to have resigned in a subsequent meeting of the Council and demanded a fresh election for the post, such conduct of his disentitled him to claim that he had not resigned as his letter of resignation was not properly addressed. 9 Admission in a writ petition before the Supreme Court that certain lands in possession of the petitioner were used for grazing his cattle, estops the petitioner in subsequent writ petition before the High Court from turning round and saying that admission was not correct. 10 In a civil case, admissions in pleadings cannot be resiled from even by way of an amendment; 11 and, though not a conclusive proof of the matter, it may operate as an estoppel against him. 12 A clear admission, binding in nature, in the pleadings, cannot be discarded on the ground that the person, who had signed the pleadings, was not examined. 13 Where the husband specifically admitted that his wife would be treated as co-owner with him, such an admission would operate as estoppel against him and the wife was held to be entitled to half share in the flat of her husband. 14 An averment not amounting to 'admission' would not attract the principle of estoppel. 15 The law of estoppel cannot be invoked on a qualified admission by the defendant in written statement. 16 Where the petitioner who was detained under Section 3(1)of the Prevention of Illicit Traffic in N.D.P.S. Act (46 of 1988), had been supplied with ground of his detention, detention order and other

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documents which were admittedly read over and other documents which were admittedly read over and explained to him in Hindi and he understood the same, the detenu would be estopped from saying that his right of making effective representation has been infringed due to non-supply of Hindi translated copies of the above documents. 17 Where the Court disposed of the matter on the basis of admission of the parties that the subject matter of suit was cognizable by the Wakf Tribunal and did not enter a finding on merits, it was held that the party could not be estopped from challenging the jurisdiction of the Wakf tribunal on the subject matter of the suit, as the admission on the question of law could not bind the parties. 18 8 Modgi Krishna v. Modgi Krishna Bai, AIR 1994 AP 16 (para 11). See also Bhagwati Tiwari v. Makhanlal Yadav, AIR 2008 (NOC) 1557(MP) . 9 Prabharani Vishwakarma v. State of M.P., AIR 1999 MP 223 (paras 12 and 13). 10 Gulabbhai v. Collector, Daman, AIR 1970 Goa 59; L.N. Arjundas v. State Bank of India, AIR 1969 Pat 385. 11 Sangramsinh P. Gaekwad v. Shantadevi P. Gaekwad, AIR 2005 SC 800 (para 222) : (2005) 2 SCC 244. See also Ajit Kumar v. Kiran Kumari, AIR 2007 (NOC) 2311(P&H) . 12 Ranchod B. Das v. Kanhaiya Lal, 2005 AIHC 1415, 1421 (para 28) (Raj). 13 S. Mahaboob Basha v. B.R. Mohan Rao, AIR 2006 (NOC) 1138(AP) . 14 Sunita Shanker Salvi v. Shankar Laxman Salvi, AIR 2003 Bom 431, 434 : 2003 (1) All MR 267 : 2003 (3) Bom LR 424 : 2003 (1) DMC 700 : 2003 (1) Ind LD 711, relying on Nagindas Ramdas v. Dalpatram Iccharam, AIR 1974 SC 471. 15 Malik Ghulam Ahmed v. J.&K. State Forest Corporation, 1996 AIHC 4426 (para 10) (J&K). 16 Western Coalfields Ltd. v. Smati Industries, AIR 2003 Bom 369 : 2003 (3) All MR 551 : 2004 (1) Bom CR 322. See also Sant Ram v. Kulwant Singh, AIR 2009 (NOC) 2103(P&H) . 17 Ram Gopal v. Union of India, 2003 CrLJ 3362, 3366 (para 11) (Del) : 2003 (66) Del RJ 685. 18 Abdul Rahiman Musaliar v. T.M. Muhammed Sahib, AIR 2003 Ker 84 : 2002 (3) Ker LT 742 : 2003 (1) Rec Civ R 537; relying on Isabella Johnson v. Susai, (1990) 2 Ker LT 968 : AIR 1991 SC 993; Contra: Mukesh Gupta v. Sushma Vasishtha, AIR 2006 (NOC) 899(Del) .

104. CONCESSION BY COURT Where the parties agreed before the High Court that instead of remanding the matter to trial court, it should consider the materials on record and render a verdict and after having done so, it was not open to any party to turn round or take a plea that no concession was given. 19 19 Roop Kumar v. Mohan Thedani, AIR 2003 SC 2418 (para 11) : (2003) 6 SCC 595.

105. CONCESSION BY COUNSEL Where pursuant to the instructions of the State Govt., the Advocate General made a statement that a Govt. order stood superseded by subsequent Rules, it was not a concession on pure question of law and it was binding on the Govt. The State Govt. could not contend that the order was still alive. More so when the order dismissing the proceedings on the basis of that concession had become final 20 but where the question to be decided was that of law to be decided in view of the statutory provisions and the earlier decision was made on the basis of the concession made by the counsel, the petitioners would not be estopped from re-agitating the same. 21 Wrong concession made by a counsel cannot bind the parties when statutory provisions clearly provided otherwise. Any such concession would have no acceptability or relevance while determining rights and liabilities incurred or acquired in view of the axiomatic principle, without exception, that there can be no estoppel against stature. 22

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Where the High Court passed an order of appointment of arbitrator on consent of the counsel, the Apex Court held that a concession made by the counsel is binding on the party whom he represents. He cannot on a later stage resile therefrom on the ground that the High Court had no authority to appoint arbitrator in view of arbitration agreement or on the ground that the counsel had no authority to give consent on his behalf as he was a junior lawyer. 23 A party to the proceedings sought the withdrawal of statement made by the counsel before the Court on the ground that the counsel had carried misconception of facts and failed to take instructions. The Court observed that the fact that the experienced advocate appearing in high profile case for a client holding a responsible political office (an M.L.A. of the ruling party) would have carried misconception of facts and would have failed to take instructions and made statement without authority does not stand to reason, besides, the withdrawal was not sought immediately but after few adjournments. The Court held that withdrawal of statement was not permissible. 24 20 Amali English Medium H. School v. Govt. of A.P. (FB), AIR 1993 AP 338 (paras 24-27). 21 Jagannatha Swamy Varu v. Vana Venugopalanaidu, 1996 AIHC 1397 (para 9) (AP), relying on Veeramma v. Appayya, AIR 1957 AP 965. See also The Daily Partap v. R.P.F. Commissioner, Chandigarh, AIR 1999 SC 2015 (paras 8 and 9). 22 Union of India v. Mohanlal Likumal Punjabi, AIR 2004 SC 1704 (paras 8 and 9) : (2004) 3 SCC 628. 23 B.S.N.L. v. Subash Chandra Kanchan, AIR 2006 SC 3335 (paras 15 and 20) : (2006) 8 SCC 279. 24 Vilas Shankar Donode v. State of Maharashtra, AIR 2008 Bom 10, 11-14 (para 6) (Bom).

106. SUBMISSION MADE BY COUNSEL When a particular submission was made by the counsel fully and extensively, and was considered by the Court in earlier decisions directly and extensively, then the same cannot be permitted to be made again and again. The Court held that that is not permitted at all. 25 25 Mohammed Bilal Hanif Shaikh v. A.N. Roy, 2006 CrLJ 1547, 1552 (para 17) (Bom).

107. CONCESSION BY PARTY Where the plea of the promotees was conceded by the direct recruits and the matter was decided accordingly but the same was held to be not binding on the Govt. which was the affected party in the matter, moreso when the plea was opposed to record. 26 Where an election petitioner prayed for recount of votes for the purpose of obtaining a declaration that the successful candidate's election was void and that he himself had been elected and the successful candidate was precluded from giving evidence against the validity of the petitioner's claim due to noncompliance with the provisions of Section 97 representation of people Act, 1951, no question of estoppel can arise on account of concession made by the parties as to the votes validly given in favour of each other. 27 The order passed on concession by the party cannot be challenged by him in appeal. 26 Union of India v. G.K. Vaidyanathan, AIR 1996 SC 688 (para 12). 27 P. Malai Chami v. A.M. Ambalam, AIR 1973 SC 2077 : (1973) 2 SCC 170. 28 Balkrishna Agarwal v. State of Chhattisgarh, AIR 2007 (NOC) 2257(Chh) .

108. WRONG CONCESSION OF LAW

28

906

A wrong concession of law cannot bind the parties, particularly when the constitutionality of a statute is in question. 29 In P. Nallammal v. State of represented by Inspector of Police , 30 the Supreme Court observed : "....The volte-face of the Union of India cannot be frowned at, for, it is open to the State or Union of India or even a private party to retrace or even resile from a concession once made in the Court on a legal proposition. Firstly, because the party concerned, on a reconsideration of the proposition could comprehend a different construction as more appropriate. Secondly, the construction of statutory provision cannot rest entirely on the stand adopted by any party in the lis . Thirdly, the parties must be left free to aid the Court in reaching the correct construction to be placed on a statutory provision. They cannot be nailed to a position on the legal interpretation which they adopted at a particular point of time because saner thoughts can throw more light on the same subject at a later stage. 29 M.P. Gopalakrishnan Nair v. State of Kerala, AIR 2005 SC 3053, 3066 (para 56) : (2005) 11 SCC 45. 30 AIR 1999 SC 2556 : 1999 CrLJ 3967 (para 7), as cited in M.P. Gopala Krishnan Nair v. State of Kerala, AIR 2005 SC 3053, 3066 (para 54) : (2005) 11 SCC 45.

109. ELECTRIC SUPPLY The policy decision of the government giving incentive/concession viz. exemption from payment of minimum consumption charges for a period of five years for new industries, is not binding on the Electricity Board and the Board was not estopped from imposing minimum consumption charges. 31 Where the Electricity Regulation Commission made representation as to implementation of tariff to the consumer of the electrical energy in furtherance whereof he had altered his position, the doctrine of promissory estoppel shall apply and it would bind the Electricity Regulation Commission. 32 Where the consumer did not object to the replacement of the meter by electronic meter on the basis that it was permissible in law and that that meter also was correct, it did not lie in his mouth subsequently to turn around and contend that electronic meters do not record correct consumption of electrical energy. 33 31 Hindustan Ferro Alloys Ltd. v. Executive Engineer, U.P.S.E. Board, AIR 1995 All 209 (para 5). 32 Badri Kedar Paper Pvt. Ltd. v. U.P. Electricity Regulatory Commission, AIR 2009 SC 1783, 1787 (paras 15 and 16). 33 Suresh Jindal v. BSES Rajdhani Power Ltd., (2008) 1 SCC 341, 351 (para 40) : AIR 2008 SC 280.

110. ACCOUNTS Accounts of firms, maintained in the ordinary course of business, can be accepted as correct and binding on the concerned parties who will be estopped from contending otherwise. 34 34 Vaiyapuri Mudaliar & Sons v. Sri Arunodhaya Textiles, Erode, AIR 1996 Mad 19 (para 30).

111. CARRIER Where the consignee obtained delivery after inspection and found no damage to goods, subsequent claim by him for short delivery against the carrier was barred. 35 35 Scindia Steam Navigation Co. Ltd. v. Union of India, AIR 1998 Ker 250 (para 8).

112. INSURANCE

907

Where the insurance company returned the premium for the renewal of policy by pay order with covering letter by certificate of posting sent two days prior to the accident without giving any reasons of its non-encashment and refused to pay compensation for want of cover of insurance policy, its act was held to be deliberate and company was held to be liable. 36 The mere delay of a couple of months in settlement of claims under policies will not authorise the National Commission to grant relief of interest under the Consumer Protection Act , particularly when the insurer had not complained of such a delay at the time of acceptance of the insurance amount under the policy. 37 Where there was no exclusion clause for subsidence in the insurance policy and the policy was covered for flood and inundation for which the insured paid extra premium, the insurer could not repudiate the claim of the insured for subsidence of one of the columns of the building due to inundation. The insurer could not plead poor construction of the same as it had already certified that it was a first class construction. 38 Where, in a case of insurance claim, primarily the stock was insured for Rs. Twenty lacs, the same could not be increased unilaterally by the insured-claimant merely by sending a letter to the insurer to that effect. Further, the insurer could not be estopped, in absence of any express consent on his behalf to increase the amount of policy and only on the basis of an implied consent, from denying the increase of the amount of policy. 39 Where the policy-holder made a wrong statement to the Insurance Company with the knowledge of the consequence thereof, he would ordinarily be estopped from pleading that even if such a fact had been disclosed, it would not have made any material change. 40 36 T. Dinkar v. P.J. Jagdish, 1998 AIHC 625(Kant) . 37 United India Insurance v. Ajmer Singh Cotton & General Mills, AIR 1999 SC 3027 (para 7). 38 United India Insurance Co. Ltd. v. Kiran Combers & Spinners, (2007) 1 SCC 368, 372-73 (paras 8 and 9) : AIR 2007 SC 393. 39 Vishnu Bhagwan Agarwal v. National Insurance Co. Ltd., 2004 AIHC 4904, 4905 (para 6) (All). 40 P.C. Chacko v. Chairman, Life Insurance Corporation of India, (2008) 1 SCC 321, 326-27 (para 16) : AIR 2008 SC 424.

113. NATIONAL SAVINGS SCHEME The Post Office made no objection in opening NSS Account by the father on behalf of his son under a General Power of Attorney and the same remained operative for a period of ten years after which the closure of account without interest was held to be arbitrary. 41 41 Prashant K. Patel v. Union of India, AIR 2001 Guj 58 (paras 3 and 4).

114. INTERPRETATION OF DOCUMENT There is no estoppel against the interpretation of a document.

42

42 Hukan Chand v. Om Chand, 1998 AIHC 1509 (para 8) (P&H).

115. FRAUD OR MISREPRESENTATION Where the petitioner had obtained a favourable order from the S.D.M. by fraud or misrepresentation of apparent facts, he could not invoke promissory estoppel. One who seeks equity must do equity. 43 43 Raj Kumar Soni v. State of U.P., AIR 2000 All 1 (para 29) : 2000 AIHC 856. See also Pravesh Kumar v. ViceChancellor, Banaras Hindu University, Varanasi, AIR 2000 All 369 (pp. 375 and 376); K.S. Vijayalakshmi v. Tahsildar, Palakkad, AIR 2000 Ker 262 (para 18).

908

116. CONFIRMATION OF MINUTES After the minutes of a meeting of the Corporators has been signed by its President under the Bombay Provincial Municipal Corporation Act , 1949 giving it rebuttable presumptive value, the Corporators are not estopped from disputing the correctness of the minutes by adducing reliable evidence. 44 44 Tarvindarsingh Mahendrasingh Dhillon v. State of Maharashtra, AIR 2000 Bom 223 (paras 72-74).

117. PROOF, PRACTICE AND PROCEDURE Where even though a clear plea of estoppel arises from the recital in an agreement, a party does not rely on this plea and enters into an issue on the facts so that the whole matter becomes open for the decision of the Court, that party cannot rely on the doctrine of estoppel to prevent the opponent from proving that fact. 45 Plea of waiver cannot be raised for the first time in writ petition.

46

Estoppel is a mixed question of law and fact. New plea thereon can be permitted in second appeal. A question of estoppel is a mixed question of fact and law, and without definite allegations in the pleadings a party should not be permitted to resort to the plea of estoppel. 48 Estoppel is not a question of fact but an inference of law from proved facts. Hence, it is open to examination by High Court in second appeal. 49

47

A person who puts forward the plea of estoppel must prove every legal requirement necessary to be established before he could avail of such a plea. 50 Where all the necessary facts have been pleaded, it is for the court to draw inference of estoppel and not for the party to plead it. The party cannot be penalised for not suggesting through its pleadings a rule of law to the court. 51 To sustain in argument based on estoppel in second appeal which is a complex legal notion involving representation act ing on it and change of position as a consequence, there should from the very nature of things, have been a proper trial on the distinct and specific pleading on the point. In order to support the plea of estoppel the representation must be of an existing fact. 52 To found a plea of estoppel by conduct, there should be precise pleadings setting up the facts constituting the estoppel. 53 If the plea of estoppel by acquiescence is not raised in the lower court, it cannot be raised in appeal.

54

Where the plea of waiver was not raised before the trial court nor the issue to that effect was not framed by court it was held that the appellate court was wrong in entertaining the question of waiver for the first time in appeal before it. 55 In the absence of specific pleading and specific issue, plea of waiver cannot be allowed to be raised in appeal. 56 45 Rajendra Ram Doss v. Devendra Doss, AIR 1973 SC 268. 46 M.P. Sugar Mills v. State of U.P., AIR 1979 SC 621. 47 State of Gujarat v. Lodha Harpal Ghasiram, ILR 1970 Guj 784; See also Ujagar Singh v. Sham Singh, AIR 1979 Punj 12. 48 Associated Publishers v. K. Bashyam, AIR 1961 Mad 114. 49 Ujagar Singh v. Sham Singh, AIR 1979 Punj 12. 50 N.R. Revanna v. T.V. Malappa, AIR 1965 Mys 258. 51 Somanath Singh v. Ambika Prasad, AIR 1950 all 121. 52 Ram Gopal v. L. Mohan Lal, AIR 1960 Punj 226; Anant Lal Goel v. Dr. P.S. Agarwal, AIR 1973 All 89; Bansilal Singh v. Kanshi Ram, AIR 1975 HP 15; Inderjit Singh v. Randhir Singh, AIR 1978 Punj 260; By Ford Pvt. Ltd. v. Union of India, AIR 1972 Del 59.

909

53 G.G.. Nambooripad v. I. Kochupilla, AIR 1953 Tra/ Co. 447. 54 M.J.V. Mudaliar v. S.V. Finance Corp., AIR 1971 AP 63. 55 Munshi Lal v. Nazir, (1967) 2 All 49 : 1967 ALJ 371. 56 S. Md. Naim v. Rouraffic & Far Eastern Ltd., AIR 1960 Cal 146.

118. LIEN When an employee gets a sanction to go abroad on service on the condition that he will come back within two years and, if he does not come back within that period, his lien will automatically be regarded as being terminated. He then cannot turn around and challenge the said condition on the basis of which sanction to go abroad was granted. 57 57 Anil Bajaj v. P.G. Institute of Medical Education & Research, AIR 2002 SC 2414 (para 3) : (2002) 2 SCC 240.

119. ORDER IN PURSUANCE OF JUDGMENT Where approval to the services of the appellant as a lecturer in a college was given by the District Inspector of schools on year to year basis but it was not granted after 1973 when the respondent was selected to the post whereupon the appellant filed a civil suit only against the college without making the department and respondent parties to it. The civil court declared the appellant to be a permanent lecturer in pursuance of which the Deputy Director of the circle held that the appellant became a permanent lecturer and the services of the respondent were liable to be terminated which was set aside. The appellant took the plea of estoppel against the Deputy Director which was held to be not tenable since the Deputy Director could not have legitimately chosen to accept a judgment to which he was not a party. 58 58 Shiv Kumar Tiwari v. Jagat Narain Rai, AIR 2002 SC 211 (para 7) : (2001) 10 SCC 11. See also Municipal Corporation, Jaipur v. Shankarlal, AIR 2006 SC 1155, 1157 (paras 8, 10 and 11) : (2006) 2 SCC 369.

120. RELIGIOUS DOCTRINE In a given case it is for the Court to decide whether a part or practice is an essential part or practice of a given religion. As a matter of fact if in the earlier litigations the court arrives at a conclusion of fact regarding the essential part or practice of a religion, it will create problematic situations if the religion is allowed to circumvent the decision of the court by making alteration in its doctrine. If subsequent alterations in doctrine could be allowed to create new essentials, the judicial process will then be reduced to useless formality and futile exercise. Once there is a finding of fact by the competent Court, then all other bodies are estopped from revisiting that conclusion. 59 59 Commissioner of Police v. Acharya Jagadishwarananda Avadhuta, AIR 2004 SC 2984 (para 11).

121. SERVICE RECORD Where a person had obtained employment on the basis of belonging to a backward class and retired therefrom, doctrine of estoppel would be operative against him in the light of his service record in his securing office of Municipal Council reserved for Scheduled Caste category. 60 60 Dr. Ambedkar Seva Samajam v. Govt. of A.P., AIR 2007 (NOC) 497(AP) .

122. MARRIAGE

910

Where the wife became pregnant from the husband prior to marriage, their parents agreed for their marriage, a document was executed showing this fact, the wife delivered a child on the day of marriage, it was impossible to conceal pregnancy at such an advanced stage, it was held the husband entering into marriage with knowledge of pregnancy could not later on challenge the validity of the same. 61 61 Shameem Baig v. Najmunnisa Begum, AIR 2007 (NOC) 2085(Bom) .

123. BUILDER/DEVELOPER A builder/developer cannot deviate from its own advertisement and/or publication because people came to builder/developer or vendor of flat after looking its brochure and getting lured up with provocation given in publication. 62 62 West Bengal Housing Board v. Sunil Prakash, AIR 2007 (NOC) 1182(Cal) .

124. ISSUE OF MEMORANDUM OF UNDERSTANDING The government issued a Memorandum of Understanding (MoU) for the grant of lease which it subsequently withdrew on the ground that the area was reserved for Public Sector against which the plea of promissory estoppel was taken as the lessees had invested a sufficient amount to set up a steel plant. It was held that, as the MoU is not a "contract" as contemplated under Art. 299 (1) of the Constitution and the promise was made under a bona fide mistake that the area was not reserved, the lessees did not acquire any legally enforceable right for grant of mining lease on the basis of MoU and hence, the doctrine of promissory estoppel was not applicable in the facts and circumstances. 63 63 Adhunik Alloys & Power Ltd. v. U.O.I., 2007 AIHC 2681(Jhar) .

125. LIABILITY OF GUARANTOR The guarantor of advance of loan is bound by the terms and conditions of the guarantee and cannot revoke/withdraw the guarantee given by him. 64 64 Sita Ram Gupta v. Punjab National Bank, (2008) 5 SCC 711, 715 (para 10) : AIR 2008 SC 2416.

126. DAMAGES FOR DEFAMATION The wife levelled false allegations in the written statement against her husband of having illicit relations with his ' bhabhi ' which was condoned by him in the divorce proceedings. However, the wife continued to make the said allegations, it was held that the husband was not estopped from claiming damages for defamation from the wife. 65 65 Ramesh Kumar Sharma v. Akash Sharma, AIR 2008 (NOC) 1893(HP) .

127. EXECUTION OF WILL Where the defendant categorically deposed that he was in possession of suit property by virtue of the Will, he is estopped from disputing the execution of the same Will as regards the bequeathing of the suit property to the plaintiff. 66 66 Minor Mani v. Ammakannu, AIR 2008 (NOC) 2434(Mad) .

911

128. RECOVERY OF SALARY PAID AFTER DATE OF RETIREMENT Owing to laxity on the part of the department two dates of birth got entered and continued to coexist in the service records of an employee throughout his service as a result of which he continued in service and drew salary for two years beyond his actual date of retirement and there was the question of refund of his overdrawn salary. The Supreme Court observed that the department ought to have deleted the other date of birth entered on the basis of his affidavit and as the department got work from the employee, the Court held that it was not proper at a later stage to make recovery of the salary. Besides, there was no misrepresentation or fraud played by the employee. 67 67 State of Bihar v. Pandey Jagdishwar Prasad, (2009) 3 SCC 117.

129. RECOVERY OF EXCESS PAYMENT The relief against recovery is granted by court not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But, if in a given case it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, courts may, or on facts and circumstances of any particular case, order for recovery of the amount paid in excess. In the instant case, the excess amount that had been paid to the teachers was not because of any misrepresentation or fraud on their part and also they had no knowledge that the amount that was being paid, was more than what they were entitled to. The Finance Department of the State had admitted that it was a bona fide mistake owing to wrong interpretation of the rule applicable to them. The whole confusion was because of inaction, negligence or carelessness of the officials concerned of the government. Besides, the majority of the beneficiaries had either retired or were on the verge of it. Hence, the Apex Court, keeping in view the peculiar facts and circumstances of the case prohibited recovery of the amount already paid in excess and directed for refund if recovered. The Court was pleased to extend the benefit to the similarly situated even those teachers who had not moved the Court. 68 68 Syed Abdul Qadir v. State of Bihar, (2009) 3 SCC 475, 491-92 (paras 58-61), relying on Sahib Ram v. State of Haryana, 1995 Supp (1) SCC 18; Shyam Babu Verma v. U.O.I., (1994) 2 SCC 521 : (1994) 27 ATC 121; Union of India v. M. Bhaskar, (1996) 4 SCC 416; V. Gangaram v. Director, (1997) 6 SCC 139; Col. B.J. Akhara (Retd.) v. Govt. of India, (2006) 11 SCC 709; Purshottam Lal Das v. State of Bihar, (2006) 11 SCC 492; Punjab National Bank v. Manjeet Singh, (2006) 8 SCC 647 and Bihar SEB v. Bijay Bhadur, (2000) 10 SCC 99.

912

913

Ratanlal & Dhirajlal: Law of Evidence, Updated 23rd Edition/THE INDIAN EVIDENCE ACT (ACT 1 OF 1872)/PART III PRODUCTION AND EFFECT OF EVIDENCE/CHAPTER VIII ESTOPPEL/S. 116.

CHAPTER VIII ESTOPPEL S. 116. Estoppel of tenant and of licensee of person in possession. No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the license of the person in possession thereof, shall be permitted to deny that such person had a title to such possession at the time when such license was given. 1. PRINCIPLE AND SCOPE

The section deals with estoppel of (1) a tenant, and (2) a licensee of the person in possession. It postulates that there is a tenancy still continuing 69 and that it had its beginning at a given date from a given landlord, and provides that neither a tenant nor any one claiming through a tenant shall be heard to deny that the particular landlord had at that date a title to the property. The estoppel of a tenant is founded upon contract between the tenant and his landlord. It is one of the most noticeable instances of estoppel by contract. In H ALSBURY ' S L AWS OF E NGLAND 4th Ed., Vol. 16, Para 1625, page 1095 it is stated: "the lessor is estopped from repudiating a lease under which possession has been given or a tenancy which he acknowledged and the assignee of the lessor's interest is estopped from denying anything which the lessor is estopped from denying." The Supreme Court held that during the continuance of tenancy, a tenant will not be allowed to deny the title of the landlord at the beginning of the tenancy; so the tenant cannot acquire by prescription a permanent right of occupancy in derogation of the landlord's title by mere assertion of such a right to the knowledge of the landlord. 70 A tenant who has been let into possession cannot deny his landlord's title however defective it may be so long as he continues to be a tenant and has not surrendered possession to the landlord. 71 A person in an unauthorised possession of a property, converting his possession into that of a tenant by executing a rent note execution of which he subsequently admitted, would be estopped from challenging the title of the landlord and his right to recover rent or arrears of rent. 72 The tenant admitting the title of the landlady and paying her rent throughout cannot subsequently deny her title. 73 But mere payment of rent to a particular person does not create the relationship of landlord and tenant. In the instant case, the tenant was paying rent to a person as an agent of the landlord whose title he denied, principle of estoppel would not be attracted. 74 A lease deed creates landlord-tenant relationship between the parties estopping the tenant to deny the landlord's title. 75 The Supreme Court in J.J. Pal Pvt. Ltd. v. M.R. Murali , 76 held that a mere denial of the title of the landlord is not enough, such denial has to be not bona fide . "Not bona fide " would mean absence of good faith or non-genuineness of the tenant's plea. If the denial is an outcome of good faith or honesty or sincerity, and is intended only to project the facts without any intention of causing harm to the landlord it may not be "not bona fide ". Therefore to answer the question whether an assertion of denial of landlord's

914

title, by the tenant was bona fide or not all the surrounding circumstances under which the assertion was made, have to be seen. 77 A tenant is estopped from taking the plea that a landlady's father who executed the lease in his favour was not a duly appointed attorney of the landlady. 78 The tenant is liable to be evicted on the ground of denial of the title of the landlord consideration of other grounds of eviction. 80

79

even without

The rule of estoppel between landlord and tenant enacted in Section 116 has three features : (1) the tenant is estopped from disputing the title of his landlord over the tenancy premises at the beginning of the tenancy; (ii) such estoppel continues to operate as long as the tenancy continues and unless the tenant has surrendered possession to the landlord, and (iii) Section 116 is not the whole law of estoppel between the landlord and the tenant. The principles emerging from this section can be extended in their application and also suitably adapted to suit the requirement of an individual case. The rule will also mutatis mutandis govern a tenant and his sub-tenant in their relationship inter se. 81 It is well settled law that during the continuance of tenancy, the tenant cannot acquire by prescription a permanent right of occupancy in derogation of the landlord's title by mere assertion of such a right to the knowledge of the landlord. 82 69 Sheikh Rashid v. Hussain Baksh, AIR 1943 Nag 265; Dangam Venkat Rajam v. Peddi Gundla Rajia, AIR 1953 Hyd 288. 70 Veerraju v. Venkanna, AIR 1966 SC 629. See also Ram Pasricha v. Jagannath, AIR 1976 SC 2335; Md. Israil v. Union of India, AIR 1976 Cal 189; Ganga Bishnu v. Calcutta Pinjraple Society, AIR 1968 SC 615; K.R. Yenkataramana Rao v. B.S.K. Chari, 2000 AIHC 1288 (para 6) (Kant), relying on Ludha Swamy v. Smt. R. Shanthamma, (1993) 1 Kant LJ 331; distinguishing Adyanath Ghatak v. Krishna Prasad Singh, AIR 1949 PC 124. See also Atyam Yeeraju v. Prechetti Yenkanna, AIR 1966 SC 629. 71 Bilas Kunwar v. Desraj Ranjit Singh, AIR 1915 PC 96; Chandrika v. B.B. & C.I.R. Co., AIR 1935 PC 59; John Agabog Yertannes v. James Golder Robinson, AIR 1927 PC 151; Adhar Mallit v. Kanhoo, AIR 1972 Ori 134; Currimbhoy & Co. Ltd. v. L.A. Creet, AIR 1933 PC 29; Hirabhai (Mst) v. Jiwanlal Palode, AIR 1955 Nag 234; Bhaiganti Bewa v. Himmat, AIR 1917 Cal 498; Muddada Chavanna v. Shri Kodanda Rama Swamyvaru, (1969) 1 SC WR 844; Rampearyalal v. Surajmal, AIR 1959 Pat 500 (adverse possession); Jaikaran Singh v. Sitaram Agarwalla, AIR 1974 Pat 364; Surajmal v. Rampearaylal, AIR 1966 Pat 8; Md. Azim v. Raja Saiyid Saadat Ali, AIR 1931 Oudh 177; Harbans Singh v. Tekamani Devi, AIR 1990 Pat 26; Bilas Kunwar v. Des Raj Ranjit Singh, ILR 37 All 557 : AIR 1915 PC 96; Munnalal v. Balchand, ILR 1961 MP 262; Charubala Basu v. German Gomez, AIR 1934 Cal 499; Gajadhar Lodha v. Khas Mahatadih Colliery Co., AIR 1959 Pat 562; Mujibar Rahaman v. Isub Surati, AIR 1928 Cal 546; Nazroo v. Lalman, AIR 1955 HP 44; Rambilas Mohanlal v. Krishna Bai Motilal, AIR 1973 Bom 168; Rameshwar Lal Sharma v. Sardar Amrik Singh, AIR 1974 Pat 195; (even after notice under Section 106T.P. Act);Balasubramania v. Saraboji Gounder, AIR 1973 Mad 305; Abdul Ghafoor v. Lala Kunj Behari Lal, AIR 1957 All 340; Yidyanath v. Somanath, ILR 1963 Cut 550; (defendant paying rent and accepting a person or landlord) Gangaram v. Municipal Council Nagar Palika, AIR 1992 MP 303; Joginder Singh v. Jogindero, AIR 1996 SC 1654 (para 6), following Yeerraju v. Yenkanna, (1966) 1 SCR 831 (839) : AIR 1966 SC 629, at p. 633. See also Charan Singh v. Municipal Committee, Rania, AIR 1996 P&H 207 (para 8); Jamila Khatoon v. Ajodhya Pathak, 1996 AIHC 2928 (para 10) (Gau); Ram Krishna Jaiswal v. District Judge, Allahabad, AIR 1999 All 198 (para 7) : 1999 AIHC 3530(All) ; M.D. Lakhanpal National Ltd. v. K.M. Kondappa, 2001 AIHC 2558 (para 11) (Kant); Kelvinator of India Ltd. v. A.F. Bagai, AIR 1994 NOC 297(Del) ; Yashu Deo v. Balkrishna, (2002) 2 SCC 50 (para 6) : AIR 2002 SC 569; Ajit Kumar Singh v. Chiranjibi Lal, (2002) 3 SCC 609 (para 11) : AIR 2002 SC 1447; J.J. Lal (P.) Ltd. v. M.R. Murali, (2002) 3 SCC 98 (para 18) : AIR 2002 SC 1061; Bhogadi Kannababu v. Yuggina Pydamma, AIR 2006 SC 2403, 2406-07 (para 17) : (2006) 5 SCC 532; Biswan Chandra Harrish v. Pooran Chandra Joshi, AIR 2008 (NOC) 2447(Utr) ; Dattatray Hanamantrao Bidikar v. Dilshad Begum, AIR 2009 (NOC) 1705(Kar) : 2009 (2) AIR Kar R 352. 72 Ziauddin v. Bansi Lal, 1996 AIHC 1425 (paras 4 and 5) (Del). 73 Yirendra Sharma v. Ramkatoridevi Singhal, 1998 AIHC 3742 (paras 21 and 22) (MP). See also S. Thangappan v. P. Padmavathy, AIR 1999 SC 3584 (paras 12 and 16) : (1999) 7 SCC 474 : 1999 (6) JT 464, relied in S.M. Sultan Rowthar v. Kothandarama Naidu, 2000 AIHC 3063 (paras 25 and 31) (Mad); Narendra Kumar Yaish v. Shyma Agrawal, AIR 2000 MP 253 (para 11); A.H. Sheikh Allauddin v. Hameed Julaika Nachiar, 2000 AIHC 2927 (para 26) (Mad); Rita Lal v. Raj Kumar Singh, AIR 2002 SC 3341 (paras 6, 7 and 8) : (2002) 7 SCC 614; S.K. Sarma v. Mahesh Kumar Yerma, AIR 2002 SC 3294 (paras 13 and 18) : (2002) 7 SCC 505 : 2002 CrLJ 4318 though Landlord railway administration had no proof of title, reversing Cr R. No. 1722 of 1986 decided on 10.10.2001 (Cal). 74 Rajendra Kumar Mahawar v. Shakuntala Kesarwani, 1999 AIHC 4700 (para 15) (MP); Mahila Samiti v. Shri Hola Ram Sindhi, AIR 2006 (NOC) 869(MP) : (2006) 1 MPLJ 123.

915

75 N.A.S. Ansari v. M. Sarangan, 1996 AIHC 1534(Mad) . See also Kartar Singh v. Collector, Patiala, 1996 AIHC 1538 (para 6) (P&H); Sona Devi v. Puran Chand Packaging Industries Pvt. Ltd., 2000 AIHC 3913 (para 10) (Del); Mama Deen v. State of Haryana, 2001 AIHC 602 (paras 9 and 10) (P&H). 76 AIR 2002 SC 1061 (para 18) : (2002) 3 SCC 98. 77 AIR 2002 SC 1061 (para 18) : (2002) 3 SCC 98. 78 Rajesh Wadhawa v. Sushma Govil (Dr.), AIR 1989 Del 144. 79 Gillan F. Irani v. Parijat Hotels Pvt. Ltd., 2000 AIHC 3415 (paras 13, 14 and 19) (Bom). See also A.H. Sheikh Allauddin v. Hameed Julaika Nachiar, 2000 AIHC 2927 (para 26) (Mad). 80 S.M. Sultan Rowthar v. Kothandavama Naidu, 2000 AIHC 3063 (paras 25 and 31) (Mad). 81 Vashu Deo v. Balkishan, (2002) 2 SCC 50 (para 6) : AIR 2002 SC 569. 82 Atyam Veeraju v. Prechetti Venkanna, AIR 1966 SC 629 : AIR 2002 SC 569.

2. UNDERLYING POLICY The underlying policy of Section 116 is that where a person has been brought into possession as a tenant by the landlord and if that tenant is permitted to question the title of the landlord at the time of the settlement, then that will give rise to extreme confusion in the matter of relationship of the landlord and the tenant and so the equitable principle of estoppel has been incorporated by the legislature in the said Section. The principle of estoppel arising from the contract of tenancy is based upon a healthy and salutary principle of law and justice that a tenant who could not have got possession but for his contract for tenancy admitting the right of the landlord should not be allowed to launch his landlord in some inequitable situation taking undue advantage of the possession that he got and any probable defect in the title of his landlord. It is on account of such a contract of tenancy and as a result of the tenant's entry into possession on the admission of the landlord's title that the principle of estoppel is attracted, Section 116 enumerates the principle of estoppel which is merely an extension of the principle that no person is allowed to approbate and reprobate at the same time. 83 83 Bansraj Laltaprasad Mishra v. Stanley Parker Jones, (2006) 3 SCC 91, 96 (paras 13-15) : AIR 2006 SC 3569.

3. RESTORATION OF POSSESSION The rule of estoppel under Section 116 continues to operate so long as the tenant has not openly restored possession of the leased property by surrendering it to his landlord. The rule ceases to have its applicability once the tenant has been evicted. His obligation to restore possession of the leased property to his landlord is fulfilled either by act ually fulfilling the obligation or by proving his landlord's title having been extinguished by a paramount title-holder. 84 84 Vashu Deo v. Balkishan, (2002) 2 SCC 50 (para 6) : AIR 2002 SC 569. See also Brij Lal Sharma v. Kanhiya Lal, AIR 2009 (NOC) 175(Del) .

4. WHETHER TENANT SHOULD BE IN POSSESSION OF PROPERTY TO ESTOP HIM FROM DENYING HIS LANDLORD'S TITLE The Privy Council has laid down that a tenant is estopped from denying his land lord's title whether he was or was not already in possession of the property at the time when he took his lease 85 . The Bombay 86 , the Madras 87 High Courts have held similarly. The decisions of the Calcutta High Court are not unanimous on the point. 88 A tenant who wishes to dispute his landlord's title must not only see that the tenancy has come to an end, but that the possession which was in him as a tenant has been surrendered. A tenant who holds over and remains in possession cannot be allowed to use that possession as a lever to support a case in which he denies the landlord's title. 89

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Where a tenant had deliberately and with ulterior motive raised the dispute of title of the landlord during the subsistence of tenancy, he was liable to be evicted. 90 In the above case 91 it was further held that Section 116 applies against the lessee, assignee of the term, sub-lessee, or licensee; the principle only applies to the title of the landlord who let the tenant in to possession, as distinct from a person claiming to be a reversioner; that Section 116 applies not only when it was shown that the landlord put the tenant into possession but also where a person already in possession as a tenant under some other person becomes a tenant to another; that a "tenant who has occupied but not entered" is a difficult notion to thrust into Section 116 and quite impossible to find therein. So, an equitable principle of estoppel is incorporated in Section 116. 92 S IR G EORGE R ANKIN in the above case (AIR 1937 PC 251) observed: "The section postulates that, there is a tenancy still continuing, that it had its beginning at a given date from a given landlord. It provides that neither a tenant nor any one claiming through a tenant shall be heard to deny that a particular landlord had at that date, a title to the property. In the ordinary case of a lease intended as a present demise (which is the case before the Board, in this appeal) the section applies against the lessee, any assignee of the terms and any sub-lessee or licensee. What all such persons are precluded from denying is that the lessor had a title at the date of the lease and there is no exception even for the case where the lease itself discloses the defect of title. The principle does not apply to disentitle a tenant from disputing the derivative title of one who claims to have since become entitled to the reversion....."The tenancy", under the section, does not begin a fresh every time that the interest of the tenant or of the landlord devolves upon a new individual by succession or assignment." The expressions "during the continuance of tenancy" makes it clear that estoppel operates only during the continuance of the tenancy. Section 116 does not prevent a tenant from setting up an adverse title at some subsequent date. 93 Denial (of title) in the suit will not work a forfeiture of which advantage can be taken in that suit, because the forfeiture must have accrued before the suit was instituted. 94 The denial of title or disclaimer must be clear and not vague to have the effect of forfeiture of one's right as tenant. Where the tenant merely denies the title of the landlord bonafide with the object of seeking information of such title or with the object of having such title established before the court so as to protect himself, it would not attract the charge of disclaimer of title. 95 The payment of rents or tax in the name of real owner was treated as an acknowledgment of title of real owner unless the person paying the same gives acceptable explanation to show that such payment was made under compelling circumstances and he never meant to acknowledge the real title of the owner. 96 The contention of the tenant that the sale transaction created by the previous landlord in favour of present landlord was sham and was created only for the purpose of evicting him from the premises and petitioner did not derive any valid title over the premises in question and there was no relationship of landlord-tenant between them, were held to be not tenable as it would be unrealistic to believe that the original landlord would part with a huge amount of rupees six lacs paying as a stamp duty and transfer his title over a valuable property to another person under a duly registered deed only in order to set up another person as landlord for the purpose of evicting the tenant. 1 In suit for ejectment, the defendants were licencees of the alleged second wife of the original owner. The gift deed in her favour was held to be void as she was not a legally wedded wife of the owner. The defendants claiming title in her were held to be trespassers and liable to be evicted. 2 85 Krishna Prosad Lal Singha Deo v. Baraboni Coal Concern Ltd., (1937) 64 IA 311 : 39 Bom LR 1034 : (1938) 1 Cal 1; Bilas Kunwar v. Desraj Ranjit Singh, (1915) 17 Bom LR 1006 : 42 IA 202 : ILR 37 All 557; Vertannes v. Robinson, (1927) 29 Bom LR 1017 : 54 IA 276, 5 Ran 427; Pashupathinath v. Sankari Prasad Singh Deo, AIR 1957 Cal 128. 86 Vasudev Daji v. Babaji Ranu, (1871) 8 BHCR 175(ACJ) ; Shankar v. Jagannath, (1928) 30 Bom LR 741. 87 Venkata Chetty v. Aiyanna Goundan, (1916) 40 Mad 561(FB) ; Ganpat Rai v. Multan, (1916) 38 All 226, 228 : AIR 1916 All 121. 88 Lal Mohomed v. Kallanus, (1885) 11 Cal 519 dissented from in Nagindas Sankalchand v. Bapulal Purshottam, (1930) 54 Bom 487 : 32 Bom LR 692 : AIR 1930 Bom 395; Ketu Dass v. Surendra Nath Sinha, (1903) 7 CWN 596.

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89 Ekoba v. Dayaram, (1919) 22 Bom LR 82; Patel Kilabhai Lallubhai v. Hargovan Mansukh, (1894) 19 Bom 133; Nadri Begum v. Nasrat Bibi, AIR 1980 All 210, the defendant continued in possession after expiry of licence in the right of his father, estopped from denying the plaintiffs title. 90 Janta Travels Pvt. Ltd. v. Raj Kumar Seth, AIR 1997 Raj 1. See also M. Narayanaswami v. Roya Poulle Amala, 1996 AIHC 2591 (para 14) (Mad). 91 Krishna Prasad v. Balaboni Coal Concern Ltd., AIR 1937 PC 251 : 64 IA 311 92 See also Bhagawati Devi v. Surendra Jit Singh, AIR 1969 Pat 257. 93 Banna v. Jetha AIR 1950 Ajmeer 53. 94 Maharaja of Jeypore v. Rukmani Pattamahdevi, AIR 1919 PC followed in Lena Pereira v. Mary Boracho, AIR 1992 Bom 93. 95 Nirvikar Gupta v. Ram Kumar, AIR 1992 MP 115. 96 Bhagwan Agarwalla v. Puranmal Bhutt, AIR 2003 Ori 75, 78 (para 16). 1 Anil Roy v. Santosh Gureddi, 2004 AIHC 1285, 1287, 1288 (paras 7 to 9) (Kar). 2 Laxmi Narain v. Brij Bhushan, AIR 2006 All 317, 323-24 (para 31).

5. LANDLORD The person who is duly authorised to receive rent is landlord and can maintain a suit for eviction.

3

3 Prafulla Kumar Saha v. Ranjit Kumar Saha, 1998 AIHC 349 (para 8) (Cal). See also Dharmichand v. Parasmal, AIR 2009 (NOC) 442(Raj) .

6. DENIAL OF TITLE The principle of forfeiture by disclaimer is that, where the tenant denies the landlord's title to recover rent from him bona fide on the ground of seeking information of such title or having such title established in a Court of law in order to protect himself, he is not to be charged with disclaiming the landlord's title. But where the disclaimer is done not with this object but with an express repudiation of tenancy under the landlord, it would operate as forfeiture. 4 If a tenant makes a bona fide demand from the landlord to prove his ownership with the aim of protecting himself or of earning a protection available under the rent control law and without disclaiming the character of his own possession of the premises as a tenant, such a demand would not amount to denial of landlord's title or disclaimer of the tenancy. It is the intention of the tenant reflected in his pleading, that is determinative. 5 Denial of landlord's title or disclaimer of tenancy, by the tenant is an act injurious to the landlord. "A disclaimer, as the word imports, must be a renunciation by the party of his character of the tenant, either by setting up a title in another, or by claiming title in himself." 6 Setting up a title hostile to that of the landlord by the tenant himself or the tenant assisting another person to set up such a claim, entails forfeiture of the tenancy. 7 The disclaimer may be verbal or written but it must amount to a direct repudiation of the landlord-tenant relationship or it may be a distinct claim to hold possession of the estate, upon a ground wholly inconsistent with the existence of that relationship which is a repudiation of such relationship by necessary implication. 8 Where the tenant demanded certain documents from the transferee to prove his title to the property, it was held to be not a denial of the title of the landlord/transferee. 9 Mere assertion of the tenant that the landlord was co-owner because of lack of knowledge of release deed in his favour, does not amount to denial of his title. 10 Where the pending litigation regarding the title of the lessor on the leased property was decided declaring the title of the lessor on it which became final, the lessee, denying the title of the lessor was estopped from doing so thereafter. 11 This section estops the tenant or a person claiming through such

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tenant, from denying the landlord's title to the property under his tenancy and a tenant cannot be permitted to change the nature of his possession. 12 Denial of title of the donee is not a bona fide denial. 13 A lady was attorned by tenants as she collected the rent of the house from the tenants as per directions of the original owner upon whose demise the house was purchased by that lady in a publication to clear up municipal taxes which was confirmed and brought on record. The tenants would be estopped from disputing the relationship of landlord and tenant between them and her. 14 Where the appellant admitted that the respondent was his landlord, he is estopped from denying the relationship between him and the respondent as a tenant and landlord. 15 No tenant of immovable property can be allowed to deny the title of the landlord and mere denial of title of the landlord does not oust the jurisdiction of the Small Causes Court. 16 After the creation of the tenancy, if the title of the landlord is transferred or devolves upon a third person, the tenant is not estopped from denying such title. However, if the tenant having been apprised of the transfer, assignment or devolution of rights, acknowledges the title of transferee either expressly or by paying rent to him, the rule of estoppel once again comes into operation for it is unjust to allow the tenant to approbate and reprobate and so long as the tenant enjoys everything which his lease purports to grant, he is not concerned with the title of the lessor. 17 Where the defendant herself stated in her written statement that she obtained the allotment order of the premises in her favour at the suggestion of the plaintiff himself and she acquired the status of tenant for the first time on account of allotment order, it was held that the defendant could not be permitted to challenge the title of the landlord/plaintiff and under the law she was estopped to do so. 18 Where admittedly the defendant was inducted as a tenant by the plaintiff followed with continuous payment of rent by the defendant to the plaintiff and the nature of the right, title and interest at the inception of the tenancy remained the same, it was held that the defendant could not be permitted to shift his stand and deny the title of the landlord. 19 Where the relationship of landlordtenant exists between the parties, merely because of strained relationship of landlord with his father, the owner of the property, the tenant could not deny the title of landlord and he was estopped from questioning the title of the landlord to the property rented out to him. 20 Where earlier the tenant filed a suit by accepting the title of the landlord, the tenant cannot be allowed to dispute the title of the landlord in a subsequent suit for eviction. 21 The fact that the tenant due to ignorance of law paid rent to the third party who claimed title on the basis of transfer from inducting landlord would not stand as an estoppel against the tenant from denying the derivative title of the third party and from retendering the rent to the real landlord. 22 If the old tenancy continues, notwithstanding the attornment, the tenant can always contend that the plaintiff who claims to be landlord has not really derived title from the original inductor. 23 Where the plaintiff, sublessor had lost its right to be in lawful possession of suit property because the lease granted in his favour by head lessor had expired by efflux of time besides there was institution of suit for eviction against him by head-lessor, it was held that the sub-lessee was entitled to deny the title of the sublessor to the effect that the plaintiff lost its right to remain in lawful possession of the suit property. 24 4 Hatimullah v. Mohd. Abju Choudhury, AIR 1928 Cal 312, at p. 315 : 32 CWN 391. 5 Sheela v. Firm Prahlad Rai Prem Prakash, (2002) 3 SCC 375 (para 17) : AIR 2002 SC 1264, relying on Williams and Jeffery v. Cooper, (1840) 1 Scott NR 36 : 1 Man & G 135 : 9 CJCP 229; Doe d Ellerbrock v. Flynn, (1834) 1 Cr M& R 137 : 3 LJ EX 221; Doe d Gray v. Stanion, (1836) 1 M&W 695 : (1835-42) All ER Rep 290; Tej Bhan Madan v. II ADJ, (1988) 3 SCC 137; Majati Subbarao v. P.V.K. Krishna Rao, (1989) 4 SCC 732; Kundan Mal v. Guraudatta, (1989) 1 SCC 552. The Supreme Court relied on Evans and Smith in Law of Landlord and Tenant (4th Edn., 1993, at p. 89); Hill and Redman in Law of Landlord and Tenant (17th Edn. (para 382), at pp. 445-446 and Foa's General Law of Landlord and Tenant (8th Edn. (para 934), at p. 589. The Court approved Hatimullah v. Mohd. Abju Choudhury, AIR 1928 Cal 312 : 32 CWN 391. 6 Williams and Jeffery v. Cooper, (1840) 1 Scott NR 36 : 1 Man & G 135 : 9 LJCP 229; per T INDAL , C.J., as cited in Sheela v. Firm Prahlad Rai Prem Prakash, (2002) 3 SCC 375 (para 15) : AIR 2002 SC 1264. 7 Deo d Ellerbrock v. Flynn , (1834) 1 Cr M& R 137 : 3 LJEX 221, as cited in Sheela v. Frim Prahlad Rai Prem Prakash, (2002) 3 SCC 375 (para 15) : AIR 2002 SC 1264.

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8 Doe d Gray v. Stanion, (1836) 1 M&W 695 : (1835-42) All ER Rep 290, per L ORD L YNDHURST , C.J. Park B, therein explained, "an omission to acknowledge the landlord as such, by requesting further information, will not be enough", as cited in Sheela v. Firm Prahlad Rai Prem Prakash, (2002) 3 SCC 375 (para 15) : AIR 2002 SC 1264. 9 Gandabhai Ranchhodji Gandhi v. Noshir Ka Vasji Sabowala, AIR 1994 Guj 18. 10 C. Chandramohan v. Sengottaiyan, AIR 2000 SC 568 (paras 18 and 19). See also Fulaben v. Ganeshbhai Punabhai Channawala, 2001 AIHC 307 (paras 9 and 10) (Guj). 11 D.S. Krishna v. Digvijay Industries, Azamabad, 1997 AIHC 3558 (paras 15 and 16) (AP). 12 Ajit Singh v. Joint Development Commr. (IRD), Chandigarh, 2005 AIHC 2562, 2563 (para 6) (P&H). 13 Jalal & Sons v. Sita Bai, 2001 AIHC 1860 (paras 17, 23 and 31) (AP) : AIR 2001 NOC 41(AP) . 14 Sheikh Noor v. Sheikh G.S. Ibrahim, AIR 2003 SC 4163 (para 6) : (2003) 7 SCC 321. 15 Gopilal v. Manilal, 2005 AIHC 3741, 3742 (para 10) (Bom); Ajit Singh v. Joint Development Commr. (IRD), Chandigarh, 2005 AIHC 2562, 2563 (para 12) (P&H). 16 Munnawar v. Addl. Distt. Judge , Haridwar , AIR 2005 NOC 147(Uttar.) . 17 Tej Bhan Madan v. II AJ, (1988) 3 SCC 137 cited in Sheela D. v. Firm Prahlad Rai Prem Prakash, (2002) 3 SCC 375 (para 16) : AIR 2002 SC 1264. See also Chhogaji Kunvarji Vanzara v. Abdulrehman Mohamad Usman Bastawala, 2003 AIHC 316, 319 (para 17) (Guj). 18 Syed Ahmad Jawwad v. Qudsiya Saidullah, 2005 AIHC 1016, 1020 (para 15) (All). 19 Urmila Devi v. Gayatri Devi, 2005 AIHC 712, 715 (para 8) (Jhar.). The Court relied on Hindustan Petroleum Corpn. Ltd. v. Mohd. Amber Yunus, (1997) 1 PLJR 230. See also Kishanchand Ottamlal Anandani v. Shankar Bapu Sawant, 2004 AIHC 4369, 4370 (para 6) (Bom); Karan Lal Kesharwani v. Sardar House, A partnership Firm through its Partner, Prasana Minocha, AIR 2008 (NOC) 1818(MP) . 20 Darshan Kumar v. Mahesh Kumar, 2003 AIHC 2914, 2916 (para 8) (P&H). 21 Sunil Kr. Bose v. Jagabandhu Dhang, AIR 2004 Cal 13, 21 para 23 : 2003 (3) Cal LT 539 : 2003 (3) ICC 870 : 2004 (1) RCJ 392, following Sri Ram Pasricha v. Jagannath, AIR 1976 SC 2335. See also Yashoda Raju v. A. Kuselan, AIR 2004 Mad 106, 107 : 2004 (1) Mad LJ 142 : 2004 (1) Mad LW 172 : following Atyam Veeraju v. Pachetti Venkanna, AIR 1966 SC 629 (para 13) : 1966 (1) SCR 831. 22 Sambhunath Mitra v. Khaitan Consultant Ltd., AIR 2005 Cal 281, 293 (para 50) : 2005 (2) Cal HN 519. The Court relied on Subhash Chandra v. Mohammad Sharif, AIR 1990 SC 636. 23 Sambhunath Mitra v. Khaitan Consultant Ltd., AIR 2005 Cal 281, 294 (para 55) : 2005 (2) Cal HN 519. 24 Union Bank of India v. Vithalbhai Pvt. Ltd., AIR 2002 Cal 144, 154 (para 49).

7. ALLOTEE UNDER W.B. CO-OPERATIVE SOCIETIES ACT The Calcutta High Court has held that the order of allotment of flat in co-operative society building under West Bengal Co-operative Societies Act , 1983, was sufficient to prove that the allottee in possession had acquired title or interest in relation to the flat. 25 25 Dunlop India Ltd. v. T.K. Mukhopadhyay, AIR 1998 Cal 59, at pp. 61-64.

8. TENANT Where the defendant contended that along with the lease document there was a sale transaction of contemporaneous date, and so he was not in the position of a tenant, it was held that Section 116 applies only to a person, if he is a tenant, otherwise Section 116 cannot come into play. 26 Where the suit for eviction was brought by the lessor and to whom the rent was being paid, the tenant was estopped from challenging the title of the landlord. 27

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In the ordinary case of a lease intended as a present demise the section applies against the lessee, any assignee of the term and a sub-lessee or licensee. 28 An agent or a representative of the tenant cannot deny the title of the landlord co-owner-landlord. 30

29

and also that of the

Where the defendant being a tenant denied the title of landlord and had claimed title by himself contending that he had purchased the property in an auction sale, on setting aside of the auction sale, the defendant would not be restored as status of tenant of the trust/landlord. 31 Where the relationship of landlord-tenant between the parties are established, the tenant can not be permitted to deny the title of the landlord merely on the fact that the wife of the tenant has purchased the part of the land from another coowner. 32 Where the tenant obtained a fraudulent decree against the landlord and got his name recorded in revenue records, he ceased to be a tenant. 33 Where in the suit for eviction on the ground of default in payment of rent, the tenant filed written statement denying the title of the landlord and on such denial, the landlord filed an application stating that denial of title may also be included in the ground of eviction and issue be framed and no objection was taken by the tenant, the tenant later on could not take the plea that the eviction decree could not be passed against him as ground of denial of title was not pleaded in the eviction petition. 34 The rule of estoppel which governs an owner of immovable property and his tenant would also mutatis mutandis govern a tenant and his sub-tenant in their relationship inter se. 35 26 Rashid v. Hussain, AIR 1943 Nag 265; Chhuttu v. Kayam Khan, 1953 Bhopal 18; relying on Lalchand v. Ram Singh, 1942 Nag LJ 136. 27 P.S. Bedi v. Project & Equipment Corporation of India Ltd., AIR 1994 Del 255 (para 21). 28 Krishna Prosad Lal Singha Deo v. Baraboni Coal Concern Ltd., (1937) 64 IA 311 : 39 Bom LR 1034 : (1938) 1 Cal 1; Ata Muhammad v. Shankar Das, (1925) 6 Lah 319; Yusuf v. Jyotishchandra Banerji, (1932) 59 Cal 739; M. Manphul Bai v. Ladhuram, (1952) Raj 58; U.G. Sakhare v. C.G. Gawande, AIR 1960 Bom 238 : 60 Bom LR 1150. 29 P.G. Venkataswamy v. M.Z. Hussain, AIR 1973 Mys. 145. See also Santosh Kumar Jain v. Shambhulal Krishna Kumar Suhane, AIR 1993 MP 46 (paras 3 and 5). 30 Kishan Gopal Agarwalla v. Ramdulari Sah, AIR 1996 Gau 39 (paras 1 and 2). 31 Institute of Education v. S.A.S.E. & S.K.H.R.M. , Endowment Trust , AIR 2003 Kant 226, 236 (para 24). 32 Inderjit Kaur v. Baij Nath, 2003 AIHC 4315, 4322 (para 14) (P&H). 33 Madan Lal v. Rajesh Kumar (decreased by L.Rs.), AIR 2005 NOC 495(A) (P&H). 34 Swaroop Devi v. Murti Bhagwan Satya Narainji Temple of Satya Narainji, AIR 2008 (NOC) 491(Raj) . 35 Vashu Deo v. Balkishan, (2002) 2 SCC 50 (para 6) : AIR 2002 SC 569, relied on in Brij Lal Sharma v. Kanhiya Lal, AIR 2009 (NOC) 175(Del) .

9. CO-SHARES OF LANDLORD A tenant can purchase the share of a co-sharer of his landlord, and claim the title to a part of the property. It does not constitute a denial of the title of the landlord on the date of the tenancy. 36 Where a lessee of a joint family property purchased the shares of two brothers of that family, it was held that the principle of estoppel does not apply. 37 36 Raman Chandra Dey v. Gour, AIR 1962 Assam 137. 37 Ramaswamy Iyer v. Mangal, (1981) 1 Mad 219.

10. LEASE--FRAUD OR MISTAKE

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The tenant may show that no valid tenancy has been created between the landlord and himself, because the lease was executed under a mistake or in consequence of a fraud, mis-representation or coercion practised on him by the landlord. 38 The defendants entered into possession of plaintiff's property by executing a registered agreement, but no lease was executed. In a suit by the plaintiff to recover rent, the defendants pleaded that without a lease there was no contract of tenancy and that the plaintiff was not entitled to recover the rent. It was held that in view of the fact that the defendants entered into and continued in occupation of the land with the plaintiff's consent, they could not be heard to say that they were not liable for rent for use and occupation. 39 A tenant is not estopped from proving that the relationship of landlord and tenant never subsisted between him and the plaintiff. 40 38 Dangom Vanket Rajam v. Peddi Gundla Rajiah, AIR 1953 Hyd 241; relying on Krishnarao Raghunath v. Ghamon Ghama, AIR 1935 Bom 144; Ramjani v. Bansidhar, AIR 1935 Oudh 385. 39 Sheo Karan Singh v. Maharaja Parbhu Narain Singh, (1909) 31 All 276(FB) . 40 Bhaboot Mal v. Sens Mal, 1973 Raj 56; following Immani Appa Rao v. G. Ramalinga Murthi, AIR 1962 SC 370.

11. 'IMMOVABLE PROPERTY' A fishery is considered immoveable property for the purposes of this section.

41

41 Lakshman v. Ramji, (1920) 23 Bom LR 339.

12. PERSON CLAIMING THROUGH A TENANT It was held that a tenant including a tenant holding over is estopped from denying the landlord's title. 42 Where after the death of the husband, the wife stepped into his shoes and paid the rents to the landlord, it was held that under these circumstances, it was not permissible for her to contend that Section 116 of the Evidence Act had no application. When a tenant is not in possession as by payment of rent attired to the successor in interest of the deceased-landlord who had let him into occupation, he would be estopped under Section 116 of the Evidence Act from denying the title of the successor. 43 The Supreme Court held that after the determination of tenancy by a notice under Section 106, T.P. Act, the defendant ceased to be a tenant and as such, the infirmity, even if any as contemplated under Section 116 of the Evidence Act, ceases to have any application. 44 The principle of estoppel under Section 116, is applicable between a tenant and his sub-tenant. Where there is no legal tenancy or sub-tenancy this section has no application, e.g., where the agreement leading to the execution of a sub- lease is void and unenforceable being a contract against the law, it cannot make the sub-tenant a tenant of the tenant. Thus where there is no legal sub-tenancy, there can be no question of continuance of sub-tenancy, and the so called sub-tenant cannot be deemed to be estopped from challenging the status of the so called tenant, so long as the sub-tenant is in possession of the premises in question. 45 Where a tenant filed a suit for ejectment against his sub-tenant on the ground of expiration of the subtenancy, the sub-tenant cannot be allowed to plead that he had obtained a fresh lease directly from the landlord a sub-tenant is estopped from denying the title of the tenant even after the term of the original lease has run out. 46 The sub-lessee has to establish as a fact that his relationship with his immediate lessor stood disrupted not only de jure but also de facto . 47 Where a plaintiff challenged the eviction decree against original tenant to which he was a party on the ground of illegality of original tenancy without making any averment that he was a sub-tenant or that

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he claimed it by adverse possession which he ought to have raised in the prior eviction suit, it was held the plaintiff cannot be permitted to deny title of the owner to the suit property and he was bound by the eviction decree. 48 42 Md. Ali Akhtar v. Md. Abbas, AIR 1975 Pat 177; relying on Krishna Prosad v. Baraboni Coal Concern Ltd., AIR 1937 PC 251. 43 Ragini Narayan v. Minnie Narayan, AIR 2008 (NOC) 1049(Kar) : 2008 (2) AIR Kar R 208. 44 Chaterjee v. Sri Kishna Thandon, AIR 1972 SC 2526. 45 Shamsher Bahadur v. State of U.P., AIR 1964 All 395. 46 Vithalbhai Pvt. Ltd. v. Union Bank, AIR 1992 Cal 283 at 285; following AIR 1932 Mad 298 and AIR 1917 Cal 498. 47 In re : Ganesh Trading Co. Pvt. Ltd., AIR 1985 Cal 37. 48 (1974) 2 Del 27 relying on Currimbhoy v. Creet, AIR 1933 PC 29; I&M Ltd. v. Pheroze Framroze, AIR 1953 SC 73; Guru Siddaswami v. D.M.D. Jain Sabha, AIR 1953 SC 514.

13. DURING THE CONTINUANCE OF TENANCY A tenant is only precluded, during the continuance of the tenancy, from denying that the landlord had 'at the beginning of the tenancy' a title to the property, the subject of the tenancy. If the term of lease has expired when a suit is brought, the tenant can dispute the title of the landlord. Though the tenancy may be continuing, it is quite open to the tenant to plead and show that his liability to pay the rent has wholly or partially or for a time ceased: such a plea is really one of confession and avoidance (not denial), and has been held available to the tenant. 49 The principle applies even after the expiration or termination of tenancy and even though the defendant was sued as a trespasser. It is only when possession is surrendered to the landlord who puts him in possession, this principle would not apply. 50 If a tenant attorns to the purchaser of the property thereby recognising him as his landlord the doctrine of estoppel applies, and not otherwise. 51 In the absence of attornment by the tenant, the purchaser of landlord's interest will not have the benefit of Section 116. 52 A tenant holding over is also a tenant under Sections 108(g) of the Transfer of Property Act and is estopped from denying the title of the landlord when the tenancy is subsisting. 53 The expression "during the continuance of tenancy" in Section 116 means "during the continuance of the possession" that was received by or under the tenancy in question. Where the tenancy had long ago ceased to exist and the tenant does not continue in possession on the strength of or in pursuance of the tenancy, he is not debarred from raising the question of competence and validity of the title of the lessor. The rule of estoppel contained in Section 116 will not apply in such a case. 54 During the tenancy the tenant who was inducted by the landlord, cannot challenge the maintainability of a suit by the landlord by setting up a claim of ownership to demised property. 55 A leased out the property to B who sublet it to C. A obtained an order of eviction of both B and C on 95-69. C was not dispossessed from the property. B sued C for arrears of rent from 1-1-64 to 1-2-71, it was held that the order of eviction obtained by A against B and C amounted to dispossession of the tenants. C was not liable to pay rent after 9-5-69 and he was not estopped from denying the title of his lessor B. 56 A tenant attorned the tenancy in favour of the purchaser G, and paid rent to G. G in his turn sold the property to C. Both C and G issued notices to the tenant to attorn the tenancy in favour of C, but the tenant declined to do so and attacked not only the derivative title of C to the property but also the validity of the sale in favour of G. It was held that the contention of the tenant amounted to a denial of title which he was precluded from doing so. 57

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The bar of estoppel would come into play during the continuance of a tenancy and not when the tenancy is determined. 58 In a case before the Privy Council there was a lease by A to C on a monthly rent. The true owner B obtained a decree for possession against A and obtained symbolic possession in execution of the decree, but C remained in possession with B's permission, but continued to pay rent to A. C later obtained a lease of same property from B. In a subsequent suit by A for possession, it was held that C is not estopped from disputing A's title as tenancy between A and C had already determined and C was a licensee from B. 59 During the continuance of tenancy, the defendants (tenants) were assessed under the Madras Land Encroachment Act and they paid the rent and accepted a patta from the Government. When the lessor sued for ejectment, the defendants pleaded title in the Government. It was held that the payment of rent to the Government and acceptance of patta amounted to eviction and the original tenancy was determined and so Section 116 did not apply. 60 Where the tenant did not dispute the title of landlord at the time of induction as the tenant, after coming to know about acquisition of the tenanted portion by the Government, disputing title of landlord by the tenant would not attract the provision of estoppel under Section 116 of the Act as the relationship of landlord tenant came to an end just after taking place of acquisition. 61 A licensee can resist the claim of his licensor on the ground that subsequent to the license he was ousted from possession by a person having a paramount right and that his prior possession no longer subsists and his present possession was derived from the person who ousted him. 62 Where a tenant did not deny his previous landlord's title, he cannot question the title of the purchaser of the same premises from the previous landlord. 63 Where the decision that a certain temple was not the owner of a certain property had become final and the tenant of the property attorned in favour of that temple during the continuance of the tenancy, the estoppel flowing from Section 116 operated against him. 64 H ALSBURY ' S L AWS OF E NGLAND (4th Ed., Vol. 16, Para 1626, Page 1097) observed: "A tenant is not estopped either before or after the expiration of the term from showing that his lessor's title has determined. If, however, the tenant came into possession under the lessor, the better opinion would seem to be that he must surrender possession before he disputes the lessor's title or has been evicted by a person having title paramount, but it has been held that unless he claims to be entitled to the premises in his own right, it is not necessary that he should act ually go out of possession." 49 Jogendra Lal Sarkar v. Mohesh Chandra Sadhu, (1928) 55 Cal 1013; Shantabai v. Narayana Rao, ILR (1948) Nag 290 : AIR 1949 Nag 81. 50 Gajadhar v. K.M. Colliery & Co., AIR 1959 Pat 562; Charubala Basu v. German Gomez, AIR 1934 Cal 499; National Jewellery Works v. Diana Printing Works, (1959) 63 Cal WN 192; Rajaram v. Jadunandan, AIR 1925 All 758; (case of a mortgagee in a redemption suit); Badri Dass v. Mahabir Prashad, (1976) 2 Del 716; Kartar Singh v. Bachan Singh, AIR 1972 Punj 408; Sreeramulu v. K. Venkateshwar Rao, AIR 1959 AP 92; T. Lakshmipathi v. P. Nithyananda Reddy, (2003) 5 SCC 150 (para 25) : AIR 2003 SC 2427; Bilas Kunwar v. Desraj Ranjit Singh , ILR 37 All 557 at p. 567 : AIR 1915 PC 96 at p. 98, followed by Apex Court in atyam Veeraju v. Prechetti Venkanna, AIR 1966 SC 629 : 1966 (1) SCR 831. 51 Madanlal v. Manakchand, AIR 1971 Raj 55; Gajadhar v. K.M. Colliery & Co., AIR 1959 Pat 562; Kailash Kumar v. Banarasi Das, AIR 1961 J&K 34; Dah Chand v. Dadamchand, AIR 1963 Raj 209; Rameshwar Lal Sharma v. Sardar Armik Singh, AIR 1974 Pat 195; Tej Bhan Madan v. Second Addil., District Judge, AIR 1980 All 320; affirmed in AIR 1988 SC 1413; Jitendra Nath Roy v. Narendra Kumar, AIR 1988 Cal 392; Parameshwarlal v. Dalu Ram, AIR 1957 Ass. 188; Bhagwan Pancha v. Nayan Kunvarba, AIR 1953 Sau 53; V.N. Jartarghar & Bros. v. Puradappa, AIR 2008 Kant 159, 162 (para 15). 52 Kailash Kumar v. Banarsi Das, AIR 1961 J&K 34. 53 Suraj Mal Marwari v. Rampearaylal Khandelwal, AIR 1966 Pat 8; Hariharpal v. Sudhir Kumar, AIR 1988 Cal 68. 54 Uday Prathap Singh Deo v. Krushna Padhano, AIR 1952 Ori 95; Suraj Bali Ram v. Dhaniram, AIR 1979 Ori 101. 55 Md. Indris Mian v. Doman Sah, AIR 1978 Pat 82. 56 Dorairajan v. Swaminathan, (1978) 2 MLJ 185. 57 Tejbhan Madan v. Second Addil, District Judge, AIR 1988 SC 1413, affirming AIR 1980 All 320.

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58 Nanavati Jayantilal v. Shah Ashabhai, (1974) 15 Guj LR 675. 59 Adyanath Ghatak v. Krishna Prasad Singh, AIR 1949 PC 124; reversing Krishna Prasad v. Adyanath Ghatak, AIR 1944 Pat 77. 60 Alaga Pillai v. Ramaswami Thevan, AIR 1926 Mad 187. 61 Manoj Kumar Halder v. Gobinda Adak, 2004 AIHC 801, 805 (para 14). The Court relied on Maharani Kashiswari College v. B. Mukherjee, (1987) 1 Cal LJ 124. 62 Bodhan v. Bhundal Singh, AIR 1965 All 309. 63 Hiremath v. Krishnappa, AIR 1978 Kant. 13. 64 R.V.E. Venkatachala Gounder v. A.V. & V.P. Temple, (2003) 8 SCC 752 (para 25) : AIR 2003 SC 4548.

14. PLEA OF EVICTION BY PARAMOUNT TITLE The rule that a tenant is not permitted to deny the title of the landlord does not extend after the discontinuance of tenancy either by reason of notice to quit served on him or forfeiture of tenancy by denying the title of the landlord or by act of law, or where a tenant is dispossessed by a person having or claiming to have a title paramount. It was held by the Supreme Court that the rule namely, that the tenant would not be permitted to deny the title of the landlord, does not apply when the tenant is under threat of eviction by a person claiming paramount title. 65 In a suit for eviction by a person having or claiming to have paramount title, it is not necessary for the tenant to give open surrender to the intermediate landlord. 66 A Dharmakarta leased some temple property to a tenant and during the tenancy another person was declared as a rightful Dharmakarta in a separate suit. When a suit was filed by the original lessor Dharmakarta for rent it was held that the tenancy had not terminated and the tenant was estopped from denying his immediate lessor's title. 67 The tenant must establish that the person who wanted to evict him had a better title than his lessor. If there is nothing to show that the evictor had any better title, nor is there anything to show that the tenant gave as required by Section 108(n), T.P. Act, any notice to the lessor about the claim put forward by the evictor so as to enable him to protect his own interest or that the tenant made any enquiry as to the title of the two rival claimants the applicability of the doctrine of estoppel cannot be challenged by the tenant on the ground of eviction by title paramount. 68 Where a tenant of land in an 'Estate' committed default in payment of rent and the 'Estate' was subsequently abolished and the property vested in the Government, it was held that in view of Section 64 of Madras Estates Abolition Act 26 of 1948, the landlord's ownership by fiction continued for certain limited purposes and hence tenants were estopped from questioning the title of the landlord. 69 When the question of title between the landlord and the municipality in whom the tenant asserted the title, was not decided the tenant is estopped from denying his landlord's title. 70 It is well-settled that when the true owner evicts the tenant who was let in to possession by another, the tenant could attorn the lease to the true owner and set up title in the true owner in answer to a suit filed for possession by his immediate landlord. 71 Where a man having no title obtains possession of land under a demise by a man in possession, who assures to give him a title as tenant, he cannot deny his landlord's title; as, for instance, if he takes for twenty one years and he finds the landlord has only five years' title, he cannot after the five years set up against landlord the jus tertii , though, of course, the real owner can always recover against him. That is a perfectly intelligible doctrine. He took possession under a contract to pay the rent as long as he held possession under the landlord, and to give it up at the end of the term to the landlord, and having taken it in that way he is not allowed to say that the man whose title he admits, and under whose title he took possession, has not a title 72 . This is estoppel by contract. The estoppel arises, not by reason of some fact agreed or assumed to be true, but as the legal effect of carrying the contract into execution, of the tenant taking possession of the property from the hand of the lessor. 73

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The expression "a person in possession" within the meaning of the section need not be a full owner; he may be a mortgagee, lessee, or any other person having right to or is in act ual possession; however defective the title of such a person or even the landlord may be at the time of the creation of the tenancy, the person inducted under the terms of the contract cannot be permitted to rely on that defect, to his advantage or to perpetuate his possession or to act in a way detrimental to the landlord's right. Even assuming that a third party has title to any extent in the suit property, where the contract is one entered into between the plaintiff and the defendant and act ual possession was given by the plaintiff to the defendant in his own right, the plaintiff and not the third party must be regarded as the landlord of the defendant for the purpose of Section 116. The protection given to the landlord under this section does not come to an end by reason of his giving a registered notice to quit. The bar of estoppel under this section continues until the tenant actually goes out of occupation by handing over possession to his landlord. 74 In a case the mortgagee leased the property to a third person. When the lessee was in possession the lease was attorned to a Zamindar ; after redemption the mortgagor claimed the property, it was held that the lessee was estopped from denying the mortgagor's title even after the attornment because there was no change in the nature of his possession. 75 The doctrine has no application to the same parties, even while the tenancy exists, when the question of title arises between them not in the relationship of landlord and tenant, but of vendor and purchaser. 76

65 Satyanarayana v. P. Jagadish, AIR 1987 SC 2192; Jogendra Lal v. Mahesh, ILR 55 Cal 1013; Dinabandhu v. Makim Sardar, AIR 63 Cal 763; Krishna Prasad Singh v. Adyanath Ghatan, ILR 22 Pat 513 : AIR 1944 Pat 77; Gajadhar v. K.M. Colliery, ILR (1959) Pat 806 : AIR 1959 Pat 562; Guruswami Nadar v. Ranganathan, AIR 1954 Mad 403; Gowresu v. K. Subadramma, AIR 1957 AP 961; Chokkalingam Pillai v. Ganesa Shanmuga Sundaram Pillai, AIR 1951 Mad 284; Omkarmal v. Manak Chand, AIR 1957 Raj 357; Valia Md. v. Savakutti, AIR 1934 Mad 197; Ramrakha Mal v. Munna Lal, AIR 1931 Lah 243; Jagannatha Iyengar v. Mariappan Chettiar, AIR 1958 Mad 518; Lekhraj Diddi v. Sawan Singh, AIR 1971 MP 172; Vashu Deo v. Balkishan, (2002) 2 SCC 50 (paras 6 and 10) : AIR 2002 SC 569. 66 Alaga Pillai v. Ramaswami Thewan, 91 IC 1024; confirming Ramaswamy v. Alaga, 79 IC 881; Subbaroya v. Krishnappa, (1888) 12 Mad 422; Bala Kushaba v. Abai, 11 Bom LR 1093; Jogendra Lal v. Mahesh, ILR 55 Cal 1013 : AIR 1929 Cal 22; Ganpat Rai v. Multan, ILR 38 All 226 : AIR 1916 All 121; Khalil Sufi v. Aziz, Bhat, 1960 J&K 132. 67 Devalraju v. Md. Jaffer Saheb, ILR (1913) Mad 53. 68 Gajadhar Lodha v. Khas Mahatadih Colliery, AIR 1959 Pat 562; relying on Indu Bhushan v. Moajam Ali, AIR 1929 Cal 272; and dissenting from; Nourjani Sardar v. Bimla Sundari, AIR 1914 Cal 730. 69 Gauara Panasayya v. Patnaikuni Sitarama Lakshmamma, ILR 1966 An P. 1305. 70 Chinniah Gounder v. Ponnuswami, AIR 1977 Mad 138. 71 Krishna Murthy v. Thambaram Panchaya, (1970) 1 Mad. LJ 444; Guruswami Nadar v. Ranganathan, AIR 1954 Mad 402. 72 Per J ESSEL , M.R., In re : Stringer's Estate, Shaw v. Jones-Ford, (1877) 6 Ch D 1, 9; Vertannes v. Robinson, (1927) 29 Bom LR 1017 : 54 IA 276 : ILR 5 Ran 427; Bilas Kunwar v. Desraj Ranjit Singh, (1915) 17 Bom LR 1006 : 42 IA 202 : ILR 37 All 557. 73 Bamandas Bhattacharjee v. Nilmadhab Sahu, (1916) 44 Cal 771, 777. 74 Bokka Sreeramulu v. K. Venkateshwar Rao, AIR 1959 AP 92; relying on Venkatanarasimha Charyulu v. Gangaraju, AIR 1941 Mad 607; District Board Tippera v. Sarafat Ali, AIR 1941 Cal 408; and distinguishing Muthuswamy Aiyer v. Solai Kanan, AIR 1915 Mad 48. 75 Gurunaidu v. Venkat Raju, AIR 1968 Mad 85; Motilal Bhatia v. Yusuf Ali, 1972 MPLJ 187; Duryodhan Nayak v. Keonjhar Municipality, ILR 1973 Cut 772. 76 Md. Hussain Sahib v. Abdul Gafoor, AIR 1945 Mad 321 : ILR (1946) Mad 44; Nesbitt v. Mable Thorpe UDC, AIR (1917) 2 KB 568; Guruswami v. Ranganathan, AIR 1954 Mad 402.

15. LANDLORD INCLUDES REPRESENTATIVES

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It is not permissible for a tenant to plead defective title of his landlord from whom the plaintiff derived title. He is also estopped from pleading defective title of the plaintiff. 77 A widow conveyed some land to R who leased it to V. one of the four sons of the widow. R filed a suit against the widow and all the four sons of the widow for ejectment. The Privy Council held that the widow could only convey her 1/3 interest in the property; that so far as V is concerned, he being tenant of R, is estopped from questioning the title of R; accordingly a decree for ejectment was passed against the widow and V. 78 On the terms of Section 116 as well as on general principles of estoppel, the party is estopped from challenging the title of the transferee to whom he attorned by paying rent after he took the transfer from his lessor, unless there is fraud or mis-representation by the plaintiff as regards his own title so as to induce the party to attorn to him. 79 The defendant is estopped from challenging the title of the purchaser from his landlord.

80

However, where the tenant paid rent to a person claiming to be landlord on the strength of the title derived from the original landlord, it was held that it is open to the tenant to show that such payment was made in ignorance of the correct position in law and in fact the person claiming title has not derived any title. 81 By mere purchase of landlord's interest the purchaser does not ipso facto become a landlord entitled to the benefit under Section 116. The relationship of landlord and tenant will have to be established between the purchaser and the tenant before calling in aid Section 116. If the tenant attorns to the purchaser, then Section 116 would come into play. 82 77 Subash Chandra v. Md. Sharif, AIR 1990 SC 636. 78 Vertannes v. Robinson, AIR 1930 PC 224. 79 Gajadhar Lodha v. Khas Mahatadih Colliery Company, AIR 1959 Pat 562; relying on John Nadjarain v. E.F. Trist, AIR 1945 Bom 399; and Krishna Prosad Lal v. Baraboni Coal Concern Ltd., AIR 1937 PC 251; Manphul Bai v. Ladhuram, AIR 1952 Raj 115; Sudhir Chandra Guha v. Jogesh Chandra Das, AIR 1970 Assam 102; Syed Anwar Ahmad v. Asst. Custodian General Evacuce Property U.P., (1972) 2 All 641; (title devolved by virtue of a decree). 80 Upendra Nath v. Sathya Charan, AIR 1961 Cal 151; relying on Md. Emartulla Sircar v. Md. Didar Bux, AIR 1920 Cal 48; N.B. Gurung v. Anil Krishna, AIR 1957 Mani 25. 81 Gobinda Bhusan Roy v. Jnan Chandra Mukherjee, (1959) 1 Cal 533; Mirkhan v. Kutub Ali, 1979 MP LJ 155(DB) ; Pritam Singh v. Parmeshwari Devi, 1974 Raj LR 257. 82 Kailash Kumar v. Banarasi Das, AIR 1961 J&K 34.

16. BENAMIDAR The Madras High Court has held that where a lease is executed by a tenant in favour of a benamidar , the real owner and not the benamidar is regarded as the landlord whose title the tenant is estopped from denying under this section. In a suit by such benamidar for rent, the tenant can deny his right to sue on the ground that he is not the person entitled. A benamidar has no right to sue unless he can show a legal right to sue under the general law. 83 The Madras High Court has held that there is a distinction between a case where the contract was entered into by the real owner but the lease was taken in the name of his benamidar and the case where a benamidar who was in possession grants a lease without disclosing his benami character. In the former case the tenant's estoppel may operate in favour of the real lessor and not the benamidar , but in the latter case it would operate against the benamidar and not the real owner; the benamidar must be regarded as landlord for the purpose of Section 116. 84 Where the lease was in favour of the benamidar but the rent was paid to the real owner. It was held that as it was found that the agreement entered into was at the instance of or on behalf of the real owner the tenant was discharged from liability to pay the rent to the benamidar . 85 The Calcutta High Court is of the opinion that a tenant is

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estopped from raising the question that his lessor is a benamidar of some one to whom he has paid rent. 86 83 Kuppu Konan v. Thirugnana Sammandam Pillai, (1908) 31 Mad 461; Bogar v. Karam Singh, (1906) PR No. 141 of 1906 (Civil). 84 Venkata Narasimha Charyulu v. Gangaraju, AIR 1941 Mad 607; distinguishing Kuppu Koman v. Thirugnan, (1908) 31 Mad 461. 85 Muttuswamy Aiyar v. Solai Kanan, AIR 1915 Mad 48. 86 Dina Bandhu Gan v. Hakim Sardar, (1935) 63 Cal 763; See also Prabhat Chandra v. Bijoychand, ILR 50 Cal 572; Haripada Bhowmick v. Kishna Chandra, (1960) 64 Cal WN 199; See also Hirabai v. Jiwanlal, AIR 1955 Nag 234; Raj Krishna v. Barabani Coal Concern, AIR 1935 Cal 368.

17. MORTGAGOR AND MORTGAGEE As between a mortgagor and his mortgagee neither can deny the title of the other for the purposes of the mortgage. A mortgagor cannot derogate from his grant so as to defeat his mortgagee's title, nor can the mortgagee deny the title of his mortgagor to mortgage the property. 87 The rule of estoppel between the mortgagor and the mortgagee cannot be invoked in a case where the suit is not based on the mortgage, but is one in repudiation of the mortgage 88 . Where the object of a mortgage is to defraud a third person and the mortgagee is cognisant of and indeed a party to that intended fraud, the mortgagor is not estopped from pleading and proving against his mortgagee seeking to enforce the mortgage that it was a sham transaction, a device to defeat a possible attachment of the property by a creditor 89 . A mortgagor of immoveable property is not estopped from pleading, or taking advantage of, the invalidity of his mortgage deed on the ground that, by the inclusion of a fictitious property in the document and getting it registered in an office where otherwise it could not have been registered, a fraud on the registration law was committed in which he participated. 90 Principles of estoppel do not prevent a mortgagee from proving that subsequent to the mortgage the mortgagor lost his title to the property. But a mortgagee cannot, by repudiation of the mortgage, convert his possession under the mortgage into one adverse to the mortgagor. During the period available to the mortgagor for redemption, the possession of the mortgagee will always be attributed to the mortgage despite any assertion by him of a claim hostile to the mortgagor. 91 Where the plaintiffs/co-mortgagees induced mortgagor to make payment to them without obtaining the consent of other co-mortgagees, the plaintiffs are not estopped from pleading that redemption was invalid. 92 If the title of the mortgagee in possession has determined (for instance, where there is an eviction by a title paramount), the rule of estoppel does not apply and the mortgagee can show that the title under which he entered into possession has determined in fact and in law. 93 When a suit for redemption was pending, the land vested in the State under the M.P. Abolition of Proprietary Rights Act 1 of 1951. It was held that the mortgagee cannot be allowed to plead jus tertii and plead that the plaintiff had lost his proprietary rights in the suit land, and the right of the plaintiff to possession was not barred under that act. 94 87 Hillaya Sobhaya v. Narayanappa Timmayya, (1911) 13 Bom LR 1200 : ILR 36 Bom 185; Appu Gounder v. Munusami Kone, AIR 1962 Mad 395; Shriram v. Thakur Dhan Bahadur Singh, AIR 1965 All 223; Setty C.K. v. Abdul Khadar, AIR 1956 Mys 14. 88 Rajana (Mst) v. Musahib Ali, (1937) 13 Luck 178. 89 Arunachalam v. Rangaswami, (1935) 59 Mad 289. 90 Ramnandan Prasad Narayan Singh v. Chandradip Narain Singh, (1940) 19 Pat 578. 91 Bodhan v. Bhundal Singh, AIR 1965 All 309. 92 Ambe Lal v. Phina, AIR 1974 HP 11.

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93 Nakchedi Bhagat v. Nakchedi Misr, ILR 18 All 329. 94 Bhudilal Deviprasad v. Jagannath Das, AIR 1963 MP 344; relying on Chhote Khan v. Md. Obedulla, AIR 1953 Nag 361; Gangayya v. V. Satyanarayana, AIR 1925 Mad 1021.

18. AT THE BEGINNING OF THE TENANCY This section only provides that a tenant cannot be permitted to deny that the landlord at the beginning of the tenancy had a title to the property. The section does not disentitle a tenant to dispute the derivative title of one who claims, since the beginning of the tenancy, to have become entitled to the reversion. In that sense the principle only applies to the title of the landlord who "let the tenant in" as distinct from any other person claiming to be reversioner 95 . The tenancy under this section does not begin afresh every time the interest of the tenant or of the landlord devolves upon a new individual by succession or assignment. 96 The section is no bar to a tenant showing that his landlord had not title at a date previous to the commencement of the tenancy. The words of the section leave it open to the tenant to show that his landlord's title has subsequently expired. 97 The rule of estoppel contemplated by Section 116 is confined to the time when the tenancy commenced. This rule is subject to an important qualification, namely; a tenant is not estopped either before or after the expiration of the lease from contending that the landlord's title came to an end by reason of a transfer or was lost or defeated by title paramount or by operation of law. 1 Where a panchayat leased out land belonging to the Government under the specific authority given to it by the Government for a specified period, the panchayat have no right over the land or claim arrears of rent from the tenants after the expiry of the authority given to it by the Government. The Government as a true owner can evict the tenants. So in the suits filed by the panchayat for collection of arrears of rent, it was held that the tenants will not be estopped from contending that the title was with the Government. 2 Where the tenant did not dispute or deny the title of the landlord at the time of induction as tenant but when he came to know about the acquisition of the property by the Govt. insofar his tenanted portion was concerned, he disputed the title of the landlord, it was held that the provision of this section was not applicable in these circumstances. 3 In a suit for eviction by the landlord who put the tenant in possession, though the tenant cannot plead that the landlord had no title to the property when he granted lease, and that he had acquired the property by purchasing a share from the other co-sharers of the landlord or to show that his interest is adverse to the landlord. He can show that the title of the landlord had ceased to exist subsequent to the demise. 4 Principle of estoppel does not operate where there is an extinction of the title of the landlord subsequent to the creation of tenancy by him in favour of the tenant. 5 Where admittedly the respondent was inducted by the petitioner as a tenant in the suit premises and the tenant defendant admitted this fact in his written statement also, it was held that the respondent could not be permitted to deny the title of the landlord and to contend that the petitioner/plaintiff was not the owner at the time of inception of the tenancy. 6 95 Krishna Prosad Lal Singha Deo v. Baraboni Coal Concern, (1937) 64 IA 311 : 39 Bom LR 1034 : (1938) 1 Cal 1; Pushpa Sharma v. Gopal Lal, 1986 Raj 187, the tenant led evidence and proved the title of a third person. See also Aras Khan v. Ali Mian, AIR 1985 Pat 126, where in a suit for ejectment the plaintiff was not able to establish relationship of landlord and tenant, but did establish his ownership. There was no reason to deny him the equitable relief of recovery of possession. 96 Krishna Prosad Lal Singha Deo v. Baraboni Coal Concern, (1937) 64 IA 311 : 39 Bom LR 1034 : (1938) 1 Cal 1. 97 Bala v. Abai, (1909) 11 Bom LR 1093; Devidas v. Shamal, (1919) 22 Bom LR 149; Ata Muhammad v. Shankar Das, (1925) 6 Lah 319; Dina Bandhu Gan v. Hakim Sardar, (1935) 63 Cal 763; Krishna Prosad Lal Singha Deo v. Baraboni Coal Concern, (1937) 64 IA 311 : 39 Bom LR 1034 : (1938) 1 Cal 1; Khalil Sufi v. Aziz Bhat, 1960 J&K 132; Munnalal v. Balchand, ILR 1961 MP 262; Guruswami Nadar v. Ranganathan, AIR 1954 Mad 402; Ibotam Singh v. Khumbongmyum

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Krishna Singh, AIR 1964 Manipur 33; Hanumanthaiya v. Thavakalsan, AIR 1950 Mys 9; Kartar Singh v. Prem Singh Jaggi, (1963) 65 Punj LR 595; Velayudhan Pillai v. Ouseph, AIR 1953 Tra/Co 574. 1 India Electric Works Ltd. v. B.S. Mantosh, AIR 1956 Cal 148; Jaikaran v. Sitharam Agarwalla, AIR 1974 Pat 364; Raghvendra v. Maruhu, AIR 1971 MP 142 (Vested in Government by an act); Sugga Bai v. (Smt.) Hiralal, AIR 1969 MP 32; Mahendra Nath v. M, AIR 1948 Cal 141; Ganpat Rai v. Multan, ILR 38 All 226 : AIR 1916 All 121; Subbaraya v. Krishnappa, (1888) 12 Mad 422; Annamalai Chettiyar v. Molaiyan, AIR 1970 Mad 396; Hamid Ahed v. Gubamani Behera, ILR 1970 Cut 49; Dahchand v. Dadamchand, AIR 1963 Raj 209; Luckman Chaplain v. Peareylal, AIR 1939 All 670; Krishna Prosad v. Baraboni Coal Concern Ltd., AIR 1937 PC 251; Mohindra Nath v. Mohindra Nath, AIR 1943 Cal 305; Guruswami v. Ranganathan, AIR 1954 Mad 402; Abdulla v. Moidin Kutty, AIR 1937 Mad 865 was dissented in Madanlal v. Mnakchand, AIR 1971 Raj 55; Rajeswar Prasad v. Sith Ram Marwari, AIR 1977 Pat 247; Uday Pratap Singh Deo v. Krushna Padhano, AIR 1952 Ori 95; Pritam Singh v. Parmeshwari Devi, AIR 1974 Rajdhani LR 257; Municipal Board, Etawah v. Ramsri, AIR 1931 All 670; Krupasinghu Routra v. Purna Chandra Misra, AIR 1973 Ori 44. 2 Krishna Murthy v. Thambaram Municipality, (1970) 1 MLJ 444(Mad) . 3 Manoj Kumar Halder v. Gobinda Adak, AIR 2004 NOC 268(Cal) : 2004 (1) Cal LT 437 : 2004 AIHC 801 : 2004 (18) All Ind Cas 801 : 2004 (1) Rent LR 321 : 2003 (12) Ind LD 427. 4 Hirabal v. Jivanlal, AIR 1955 Nag 234; Krishnaswamy v. Jayalakshmi, AIR 1931 Mad 300; Krishna Prasad Singh v. Adyanath Ghatak, AIR 1944 Pat 77; Mujibar Rahaman v. Ius Suruti, AIR 1928 Cal 546; Ganpat Rai v. Multan, ILR 38 All 226 : AIR 1916 All 121. Note:--1944 Pat 77 was reversed in Adayanath Ghatak Krishnaprasad Singh, AIR 1949 PC 124. 5 Banarsidas v. Sitaram Bagaria, ILR 1976 Cut 159. 6 Girish Chandra Ramchandra Sharma v. Shreeram Ramdhari Moryali, 2005 AIHC 98, 99 (para 3) (Bom).

19. LICENSEE The second limb of Section 116 is couched in negative terms and mandates that a person who came upon any immovable property by the licence of the person in possession thereof, shall not be permitted to deny that such person had title to such possession at the time when such licence was given. 7 The principle applies to a case of a person coming into possession with permission as licensee.

8

Where it is proved that the occupation by a person of immoveable property is by permission of another, the occupier is estopped from denying that other's title 9 "There is no distinction between the case of a tenant and that of a common lincensee. The licensee, by asking permission, admits that there is a title in the licensor. The law would imply a tenancy under such circumstances. 10 Where defendant No. 1 came into possession of certain coal mining lands as a licensee of the plaintiff, and subsequently defendant No. 2, as the assignee of, and claiming through, defendant No. 1, entered into possession thereof, it was held that the possession of the lands by both the defendants must be attributed to the possession given to defendant No. 1 by the plaintiff and they were both barred by this section from questioning the plaintiff's title to those lands until they had surrendered possession thereof again to him. 11 A licensee can resist licensor's claim to possession on the plea of eviction by paramount title holder.

12

In the case of evacuee property, a lessee allowed a licensee in the property. Later another person created a lease in favour of the licensee, after that person was restored to possession of the property. It was held that by the extension of the principle of estoppel to the licensee the former lessor is entitled to obtain possession from his licensee as the licensee cannot deny title of his immediate lessor. 13 7 Bansraj Laltaprasad Mishra v. Stanley Parker Jones, (2006) 3 SCC 91, 96 (para 12) : AIR 2006 SC 3569, relying on Kumar Krishna Prosad Lal Singha Deo v. Baraboni Coal Concern Ltd., 64 IA 311 : AIR 1937 PC 251. 8 U.G. Sakhara v. C.G. Gawande, AIR 1960 Bom 238; B.K. Ghosh v. R.K. Joysurendra Singh, AIR 1959 Manipur 27; Balram Chunnilal v. Durgalal Shiv Narayan, AIR 1968 MP 81; Dwijendra Mohan Lahiri v. Rajendranath, AIR 1971 Assam 143; Ram Prasad Pandey v. Jagmohan Lal Shukla, AIR 1977 All 458; Zila Parishad v. Ram Bharosey, 1977 All LJ 412; Nadri Begum v. Nasrat Bibi, 1980 All 210 (Licensee's son). 9 See Mah Hli v. Maung San Dun, (1892) PJLB 4.

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10 Per C OLERIDGE J., in Doe Dem Johnson v. Baytup, (1835) 3 Ad & EI 188, 192. 11 Currimbhoy & Co. Ltd. v. L.A. Creet, (1932) 35 Bom LR 223 : 60 IA 297 : ILR 60 Cal 980 : AIR 1933 PC 29. 12 Bodhan v. Bhundal Singh, AIR 1965 All 309. 13 Nihal Chand v. Natha Singh, (1962) 64 Punj LR 680; Sajed Mohd Raza Khan v. Naubat, 1952 All LJ 329(Rev) ; Punnamma v. Venkata Subba Rao, AIR 1953 Mad 456; Dwijendra Mohan Lahiri (Dr.) v. Rajendra Nath, AIR 1971 Assam 143; Ramprasad Pandey v. Jagmohanlal Shukla, AIR 1977 All 458; Zila Parishad v. Ram Bharosey, 1977 All LJ 412; U.G. Sakhare v. C.G. Gawandi, AIR 1960 Bom 238.

20. SECTION 116 NOT EXHAUSTIVE Even before the Act came into force, the Bombay High Court recognised an estoppel of this kind 14 After the Privy Council in Kumar Raj Krishna Prosad Lal Singha Deo v. Baraboni Coal Concern Ltd. 15 declared that the section does not deal with all kinds of estoppel which might arise between the landlord and tenant. The estoppel under this section is wide enough to cover the case of a guarantee who occupies and enjoys under a grant disputing the guarantor's title. Even a mere attornment creates an estoppel against the tenant but that estoppel is not the same as is given statutory effect by this section. There are other kinds of estoppel between tenant and landlord which fall outside the scope of the section. Such an estoppel does not prevent the tenant from showing that he attorned in ignorance of the fact that the landlord has no title. There may be a situation where a lessee or a licensee is estopped from questioning the title of the lessor or licensor such as where a purchaser of a tenanted premises was attorned as landlord by the tenant and rent was paid without any demur whatsoever. The tenant cannot deny the relationship with such landlord. 16 14 Vasudev Daji v. Babaji Ranu, (1871) 8 Bom HCAC 175. 15 (1937) 64 IA 33 : AIR 1937 PC 251. 16 Kuldeep Harbans Singh v. Gojer Brothers (P.) Ltd., 1998 AIHC 144 (paras 50 and 51) (Cal).

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Ratanlal & Dhirajlal: Law of Evidence, Updated 23rd Edition/THE INDIAN EVIDENCE ACT (ACT 1 OF 1872)/PART III PRODUCTION AND EFFECT OF EVIDENCE/CHAPTER VIII ESTOPPEL/S. 117.

CHAPTER VIII ESTOPPEL S. 117. Estoppel of acceptor of bill of exchange, bailee or licensee. No acceptor of a bill of exchange shall be permitted to deny that the drawer had authority to draw such bill or to endorse it; nor shall any bailee or licensee be permitted to deny that his bailor or licensor had, at the time when the bailment or licence commenced, authority to make such bailment or grant such licence. Explanation (1).-- The acceptor of a bill of exchange may deny that the bill was really drawn by the person by whom it purports to have been drawn. Explanation (2).-- If a bailee delivers the goods bailed to a person other than the bailor, he may prove that such person had a right to them as against the bailor. 1. PRINCIPLE AND SCOPE

This section deals with further instances of estoppel by agreement. Sections 116 and 117 are however not exhaustive of the doctrine of estoppel by agreement 17 . Agents for instance are not ordinarily permitted to set up adverse title of a third person to defeat the rights of their principals. This section deals with the estoppel of an acceptor of bill of exchange, bailee or licensee and states that they are not permitted to deny--that the drawer of the bill had no authority to draw or endorse it. Similarly the bailee is not permitted to deny the authority of a bailor or licensor. But this principle is subject to the two qualifications which are mentioned in explanation 1 and 2. S TEPHEN in his Digest (Art. 105) regarding the qualifications of the general rule states "provided that any such bailee, agent or licensee may show that he was compelled to deliver up any such goods to some person who had a right to them, as against his bailor, principal or licensor, or that his bailor, principal or licensor wrongfully and without notice to the bailee, agent or licensee obtained the goods from a third person who has claimed them from such bailee, agent or licensee." This section has to be read along with Sections 41 , 42 and 120 , 121 of the Negotiable Instruments Act 26 of 1881 and also Chapter 9 ( Sections 148 to 181) of the Indian Contract Act 9 of 1872 andSection 26 of the Paper Currency Act. 17 Rup Chand Ghosh v. Sarveswar Chandra, (1906) 33 Cal 1915.

2. BILL OF EXCHANGE Under this section an acceptor of a bill of exchange cannot deny that the drawer had authority to draw such bill or to endorse it. But he may deny that the bill was really drawn by the person by whom it purports to have been drawn (expln. 1). Sections 41 of the Negotiable Instruments Act says that an acceptor is bound by a forged endorsement, even if he knew or had reason to believe the endorsement as forged.Section 42, N.I.

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Act says that an acceptor is liable though the bill is drawn in a fictitious name. Section 120 of that Act says that maker of a promissory note, a drawer of a bill of exchange, or cheque and acceptor of a bill of exchange for the honour of the drawer are, in a suit by a holder in due course, estopped from denying the validity of the instrument as originally made or drawn. Under Section 121 of that Act a maker of a promissory note and an acceptor of a bill of exchange payable to, or to the order of, a specified person are, in a suit thereon by the holder in due course are estopped from denying the payee's capacity at the date of the note or bill to endorse the same. Section 122 of the Act says that an endorsee of a negotiable instrument is, in a suit thereon by a subsequent holder, estopped from denying the signature or capacity to contract of any prior party to the instrument. Section 120 of the Act is subject to the general rule contained in Section 26 of Paper Currency Act which states that a hundi made payable to bearer on demand is invalid and an endorser of such a hundi is not estopped as against the endorsee from setting up its invalidity. This provision in Section 26 of the Paper Currency Act is based on the principle that there is no estoppel against a statute. See in Alagappa Chetty v. Alagappa Chetty 18 where it was held that the observation of S HESHAGIRI I YER J., in Arunachalam v. Narayana, 42 Madras 470, that an endorser of a Negotiable Instrument is estopped as against the endorsee from setting up its invalidity, is obiter. 44 Mad 187 following Chidambaram v. Avaswami, 40 Madras 585. The Privy Council held that it is an established rule that in an action on a bill of exchange or a promissory note against a person whose name properly appears as a party to the instrument, it is not open either by way of claim or defence to say that the signatory was in reality acting for an undisclosed principal; that there is nothing in Sections 24 , 25 , 26 of the Negotiable Instruments Act to support the contention to the contrary.19 Before applying the provision of Section 120, Negotiable Instrument Act, there must be a properly stamped bill of exchange. 20 It was held that in a suit by the endorsee of a pronote, the maker or the defendant debtor is not barred by Section 120 N.I. Act from raising a defence under Madras Agriculturists Debt Relief Act for the purpose of reducing the rate of interest as per the Act. 21 18 ILR 44 Mad 187 : AIR 1921 Mad 382. 19 Sadasukh Janakidas v. Sir Kishan Pershad , ILR 46 Cal 663 : AIR 1918 PC 146. 20 Chotey Lal v. Girray, AIR 1926 All 359. 21 Karuppa v. Narayana Swamy and Company, (1941) 2 MLJ 808; Anandam v. Muthukumaraswami, (1939) 2 MLJ 658.

3. FORGED ENDORSEMENT No person can claim a title to a negotiable instrument through a forged endorsement. Such endorsement is a nullity and must be taken as if no such endorsement was on the instrument.

22

22 Banku Behari Sikdar v. Secretary of State for India, (1908) 36 Cal 239.

4. BAILEE OR LICENSEE The bailee and the licensee are placed in the same position as a tenant in the preceding section. The bailee is protected by the bailor's title so long as any better title is not advanced. A bailee entrusted with the care of goods is estopped from claiming that the bailor had no title at the time of bailment. He cannot set up the title of a third person. But the bailee has no better title than the bailor and consequently if a person entitled as against the bailor claims the goods the bailee has no defence against him.

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A bailee or licensee cannot deny that his bailor or licensor had, at the commencement of the bailment or license, authority to make the bailment or grant the license, But a bailee, if he delivers the goods bailed to a third person may prove that such person had a right to them as against the bailor (Expln. 2). Sections 167 of the Indian Contract Act states that if a person, other than the bailor, claims goods bailed, he may apply to the court to stop the delivery of the goods to the bailor and to decide the title to the goods. Where an automobile garage received a car for repairs, the garage owner is estopped from challenging the title of the person from whom the car is received. 23 When the defendant executed a hire purchase agreement of a motor truck in favour of the plaintiff calling him as owner, the defendant becomes a bailee and cannot deny plaintiff's ownership. 24 A pujary of a temple is in the position of either a licensee or bailee and is estopped from questioning the title of the person from whom he got possession of certain articles. 25 A licensee cannot be permitted to deny that his licensor had at the time when the license commenced authority to grant such license. The licensee of a trademark cannot put an end to the relation of licensor and licensee by repudiating the contract, inasmuch as the concurrence of the other party is essential. In a suit for royalty, brought by the licensors certain jute trade marks against the licensees. The defence taken was that the plaintiffs had no title to the marks in question, and that the license was void. It was held that by virtue of this section the licensees were estopped from questioning their licensor's title or the validity of the license. 26 The fact that a licensee repudiates the contract would not put an end to the relationship between the parties as the concurrence of the licensor is necessary to rescind the contract, and his own repudiation of contract would not give him the right to question the title of the licensor. 27 See also commentary on Section 116 under 'Licensee'. 23 Calcutta Credit Corporation Ltd. v. Prince Peter of Greece, AIR 1964 Cal 374. 24 Gurdial Singh Bedi v. Sunda Hire Purchase Corporation, AIR 1970 Pat 7. 25 Balram Chunnilal v. Durgalal Shivanarain, AIR 1968 MP 81 : 1967 MPLJ 384. 26 Hannah v. Jagannath, (1914) 42 Cal 262 : AIR 1915 Cal 520. 27 Jagarnath & Co. v. Cresswell, (1915) 40 Cal 814; relying on Johnstone v. Milling, (1886) 16 QBD 460.

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Ratanlal & Dhirajlal: Law of Evidence, Updated 23rd Edition/THE INDIAN EVIDENCE ACT (ACT 1 OF 1872)/PART III PRODUCTION AND EFFECT OF EVIDENCE/CHAPTER IX OF WITNESSES/S. 118.

CHAPTER IX OF WITNESSES S. 118. Who may testify. All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind. Explanation.-- A lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them. 1. PRINCIPLE AND SCOPE

Under this section all persons are competent to testify, unless they are, in the opinion of the Court (a) unable to understand the questions put to them, or (b) to give rational answers to those questions, owing to (i) tender years, (ii) extreme old age, (iii) disease of mind or body, or (iv) any other such cause. Even a lunatic, if he is capable of understanding the questions put to him and giving rational answers, is a competent witness. This section does no more than enunciate the English rule with regard to the competency of parties as witnesses without in any way making admissible all the evidence, which might be given by them. The evidence of a child witness is generally admissible in evidence but weight to be attached to it, is a matter of consideration for the Court. 1 The competence of a witness to give evidence has to be distinguished from compellability to give evidence. For instance, Section 122 dealing with communications during marriage, Section 124 dealing with official communications, Section 125 dealing with information as to commission of offences from magistrates and police officers & Section 129 dealing with confidential communications with legal advisors, state that such persons cannot be compelled to disclose to the court by giving evidence. Competency is to be distinguished from compellability. A person may be admitted to give evidence, though in certain cases he will not be competent and compellable. A person, however, though competent and compellable as a witness may not be competent or may not be compellable to give evidence as to particular matters. 2 With certain exceptions as to criminal proceedings, all witnesses who are capable of understanding the nature of an oath and giving rational testimony are competent. 3 1 For Statement of Objects and Reason, see Gaz. of India, 1868, p. 1574. 1 Ghewar Ram v. State of Rajasthan, 2001 Cr LJ 4460 (para 16) (Raj). 2 P HIPSON -E VIDENCE 13th Edn., p. 690 (para 31.01). 3 P HIPSON -E VIDENCE 13th Edn., p. 693 (para 31.07).

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2. COMPETENT AND INCOMPETENT WITNESSES In civil proceedings, every person 4 is now 5 a competent witness 6 unless he is (I) a child of such tender years that he has neither sufficient intelligence to testify nor a proper appreciation of the duty of speaking the truth 7 ; (II) a person who at the time of being tendered as a witness is mentally incapable of testifying 8 ; (III) deaf and dumb, and unable by writing or signs or otherwise to understand questions put to him, or to communicate his answers to others 9 ; (IV) a person who, from temporary causes, such as illness or drunkenness, is for the time being incapable of understanding questions and of giving a rational account of events; or (V) a person who does not appreciate the nature and obligation of an oath or affirmation. 10 In criminal cases the rules as to the competence and incompetence of witnesses are the same as in civil matters, subject to special statutory rules governing the unsworn evidence of young children 11 , the right of an accused person to make an unsworn statement instead of giving evidence on oath or affirmation 12 , and the evidence of the accused's wife or husband 13 With a few exceptions, all persons are now competent 14 as distinct from compellable, to give evidence in judicial proceedings, including probably the Sovereign 15 judges 16 ; and counsel 17 . As to these last, advocates may in strictness, although the practice is highly undesirable, testify either for or against the party whose case they are conducting 18 . The same rule applies to arbitrators 19 ; jurymen 20 ; and the parties in civil cases 21 , and their wives or husbands 22 . Also included are persons interested in the result 23 bankrupts, the debtor being also competent to prove the petitioning creditor's debt, 24 believers of all creeds, as well as atheists 25 ; deaf mutes, provided the court is satisfied that they understand the nature of an oath 26 ; accomplics 27 ; and convicts. 28 Even a person convicted of perjury is competent 29 , as also is a person under sentence of death 30 . "In civil cases, the basic test of competence is whether the witness is capable of understanding the nature of an oath and of giving rational testimony. In order to test a witness's understanding of the nature of an oath, it is not appropriate to embark on a detailed examination of theological appreciation. 31 Rather, it should be ascertained whether the witness has a sufficient appreciation of the solemnity of the occasion, and the added responsibility to tell the truth which is involved in taking an oath, over and above the duty to tell the truth which is an ordinary duty of normal social conduct. 32 The basic test of competence applies to all adults, but is not the test used for children in all circumstances. In criminal cases, the basic test of competence is whether the person is able to (1) understand questions put to him as a witness, and (2) give answers to them which can be understood. 33 A witness who satisfies this basic test of competence and who has attained the age of 14 may be sworn unless he or she is shown not to have sufficient appreciation of the solemnity of the occasion and of the particular responsibility to tell the truth which is involved in taking an oath. 34 A witness who has not attained the age of 14 may not be sworn." 35 Any body can give evidence in the Court provided that he is acquainted with the facts of the case. It is not necessary that persons giving evidence on behalf of bank must have power of attorney or written authorisation. 36 Every witness is competent unless the court considers he is prevented from understanding the questions put to him, or from giving rational answers by reason of tender years, extreme old age, disease whether of body or mind, or any other cause of the same kind. There is always competency in fact unless the court considers otherwise. 37 4 A limited company is not a competent witness. Evidence which binds the company may be given by a proper officer: Penn-Texas Corpn v. Murat (Anstalt), (1964) 1 QB 40 : (1963) I All ER 258(CA) . It was doubtful whether a person under sentence of death could give evidence: R v. Webb, (1867) II Cox CC 133, per L USH J; of R v. Fitzgerald, (1884) cited in 2 T AYLOR ' S L AW OF E VIDENCE (12th Edn.) 849n, per H ARRISON J. 5 At common law there were various classes of person who were incompetent as witnesses, e.g. parties to an action or their husbands or wives, persons and persons who had no religious belief (see S TARKIE ' S L AW OF E VIDENCE (4th Edn.) 116) or had conscientious objections to taking an oath.

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6 Persons interested were made competent witnesses by the Evidence Act 1843; parties to an action by the Evidence Act 1851, S. 2, and the Evidence Further Amendment Act 1869 (repealed); the husbands and wives of parties by the Evidence Amendment Act 1853 and the Evidence Further Amendment Act 1869 (repealed); persons previously convicted of a crime or offence by the Evidence Act1843; and persons who had no religious belief or had conscientious objections to taking an oath by provisions re-enacted in the Oaths Act 1888. A husband who has been convicted of an agrravated assault has rights to be heard as a witness on an application by wife to justices for a separation order on the ground of that conviction;Jones v. Jones, (1895) p. 201, although the merits of that conviction cannot be reviewed, Bryant v. Bryant, (1914) p. 227 DC. 7 R v. Brasier, (1779) 1 Leach 199, where a general rule, applicable to both civil and criminal proceedings, was stated. It has been said that it is most undesirable in any circumstances to call a child as young as five years old; R v. Wallwork, (1958) 42 Cr App Rep 153, CCA. 8 A person suffering from mental disorder may give evidence if the judge atthe trial at which he is tendered as a witness is satisfied that he is then of sufficient understanding to give rational evidence; the mere fact that such a person is then suffering from delusions does not make him incompetent if they do not make him incapable of dealing rationally with the matters about which he is to be asked; R v. Hill, (1851) 2 Den 254, CCR; R v. Whitehead, (1866) LR I CCR 33; R v. Dunning, (1965) Cri LR 372, CCA. Before a person who is known to be in such a state of mind can be received as a witness there should be a preliminary inquiry as to his fitness to give evidence; Spittle v. Walton, (1987) CRII Eq 420. 9 Dickenson v. Blisset, (1754) I Dick 268; R v. Ruston, (1786) I Leach 408; Morrison v. Lennard, (1827) 3 C&P 127; Bartholomew v. George, (1851) cited in Best's Law of Evidence (12th Edn.) 134, per Lord C AMPBELL CJ; R v. Whitehead, (1868) LR 1 CCR 33; R v. Imrie, (1916) 12 Cr App Rep 282, CCA. 10 An adult may be incompetent from insufficient appreciation of the moral duty of speaking the truth; R v. Wade, (1825) I Moo. CC 86, CCR; However, no inquiry is normally conducted into a witness's appreciation of the duty to tell the truth. 11 Children and Young Persons Act 1933, S. 38. 12 See the Criminal Evidence Act 1898, S. I proviso (h). 13 Criminal Evidence Act 1898, Ss. I, 4. At common law the spouse of a party was generally incompetent as a witness either for or against him. In civil cases this disability was removed by statute; see note 3, supra. In Monroe v. Twistleton, (1802) Peake Add Cas 219 it was held that the disability was not removed, so ar as transactions taking place during the marriage are concerned, by dissolution of the marriage by Act of Parliament. Although not specifically overruled or abrogated, this decision cannot be regarded as representing the modern law. (H ALSBURYI L AWS OF E NGLAND , 4th Edn., Vol. 17, p. 162) (para 131). 14 For the former disqualifications, i.e. interest which included parties, consorts and other witnesses, atheism and crime, see P HIPSON (11th ed.), ff 30-13 to 30-15, but for husband and wife, see f 31-06, post . 15 Berkeley Peerage, The Times, June 27, 1891; R v. Mylius, The Times, February 2, 1911. 16 Ante, ff 2-08, 14-11. 17 Ante, f 14-13. 18 Cobbett v. Hudson, (1852) 1 E&B 11, not following Stones v. Byron, (1846) 4 D & L 393 and Deane v. Packwood, 4 Dowl & L. 395n; see also R. v. Secretary of State for India, (1941) 2 K.B. 169. See post , f 31-43 as to when this evidence may be given without oath. 19 Ante, f 14-12. 20 Ante, f 14-14; R v. Rosser, (1836) 7 C&P 648; Manley v. Shaw, (1840) Car. & M 361. 21 Evidence Act 1851, S. 2. 22 Evidence (Amendment) Act 1853, S. 1; Evidence Further Amendment Act 1869, S. 3; Matrimonial Causes Act 1973, S. 48. 23 Evidence Act 1843, S. 1. 24 Ex P., Haes (1902) 1 K.B. 98. 25 Providing they comply with the provisions of the Oaths Act 1978,post , ff 31-34 et seq . 26 R. v. Ruston, (1786) 1 Leach 408; R. v. O'Brien, (1845) 1 Cox 185, See post , f 33-03.

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27 Post, f 32-06. 28 Evidence Act 1843, S. 1; R. v. Dytche, (1890) 17 Cox 39, ante, f 10-28. 29 See 65 JP 496; contra, O KE ' S M AG . S YNOP . (14th ed.), p. 879. 30 R. v. Fitzgerald, (1884) Dublin, November 6, 1884, per H ARRISON J., cited T AY ., S. 1347n., not following R v. Webb, (1867) 11 Cox 133, contra, which case is doubted both in T AY ., S. 1347n. and S TEPH , art. 116n. 31 R. v. Bellamy, (1985) 82 Cr App R 222, 225. 32 R. v. Hayes, (1977) 64 Cr App R 194, 196. This case involved children but the test was said to apply a fortiori to adults in R. v. Bellamy, (1985) 82 Cr App R 222. 33 Youth Justice and Criminal Evidence Act 1999, S. 53(3). 34 Youth Justice and Criminal Evidence Act 1999, S. 55. 35 P HIPSON ON E VIDENCE , 15th Edn. (2000), pages 150-151 (paras 8-08 and 8-09). 36 Central Bank of India v. Tarseema Compress Wood Mfg. Co., AIR 1997 Bom 225. 37 Rameshwar v. The State of Rajasthan, AIR 1952 SC 54, 55 (para 7) : 1952 CrLJ 547, followed in Acharaparambath Pradeepan v. State of Kerala, (2006) 13 SCC 643, 655 (para 44).

3. COMPETENT TO TESTIFY The competency of a person to testify as a witness is a condition precedent to the administration to him of an oath or affirmation and is a question distinct from that of his credibility when he has been sworn or has been affirmed. In determining the question of competency the Court, under this section, has not to enter into inquiries as to the witness's religious belief or as to his knowledge of the consequences of falsehood in this world or the next. It has to ascertain, in the best way it can, whether, from the extent of his intellectual capacity and understanding, he is able to give a rational and intelligent account of what he has seen or heard or done on a particular occasion. If a person of tender years or of very advanced age can satisfy these requirements, his competency as a witness is established. 38 A child of tender age can be allowed to testify if he has intellectual capacity to understand questions and give rational answers thereto. 39 Even the husband or wife of a party is a competent witness against the other spouse in view of Section 120. Under Section 119 even a deaf and dumb person may be a competent witness provided he gives evidence by writing or by signs in open court, making them intelligible, and is able to understand the questions put to him. Section 118 deals with the competence of a person to testify before the Court. The incompetence of a person is recognised in the case of persons of tender years, extreme old age, and disease whether of body or mind, or any cause of the same kind. A child of tender years thus becomes incompetent only in case the Court considers it as incompetent. The test contemplated in this section is to find out whether the person is prevented from understanding the questions put to him or from giving rational answers to those questions. If the child understands the questions put to it and gives rational answers to those questions it can be taken that he/she is a competent witness to be examined. The Court, without giving an opportunity to the person to go into the witness box and give evidence, cannot decide whether that person is a competent witness or not. 40 Where the Court, without giving a finding as to the competency of the injured witness, relied on her evidence and acquitted the accused, the trial was held to be vitiated and re-trial was ordered. 41 A victim of rape, the prosecutrix, is a competent witness and she must receive the same weightage as is attached to an injured complainant or witness. 42 Where Rs. 150/- were paid to a witness by the party who produced him to give evidence on his behalf and when there was no evidence to show that payment of the said amount equalised a loss of wages

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for the day, the rejection of oral evidence of a such witness by the Court below was held to be proper. 43

38 Queen-Empress v. Lal Sahai, (1888) 11 All 183; Quasim Ali v. State, ILR (1952) Raj 435; Purna Chandra v. State, AIR 1959 Cal 306; Ghewar Ram v. State of Rajasthan, 2001 Cr LJ 4460 (para 16) (Raj); Ratansinh Dalsukhbhai Nayak v. State of Gujarat, (2004) 1 SCC 64, 68 (para 8) : AIR 2004 SC 23 : 2004 CrLJ 19. 39 Wheeler v. United States, 159 US 523, per B REWER , J. as cited in Ratansinh Dalsukhbhai Nayak v. State of Gujarat, (2004) 1 SCC 64, 67 (para 6) : AIR 2004 SC 23 : 2004 CrLJ 19. 40 Shaik Rafath Begum v. T.Y.R. Anjaneyulu, AIR 2007 AP 23, 25 (para 5). 41 State of Karnataka v. Shahabuddin, 1995 Cr LJ 3237 (paras 12 and 13) (Kant). 42 Sri Narayan Saha v. State of Tripura, (2004) 7 SCC 775, 777 (para 6). See also Jinish Lal Sah v. State of Bihar, 2002 CrLJ NOC 274(Pat) : 2001 (3) BLJ 793 : 2001 (3) East Cr C 317 : 2001 (4) Pat LJR 362. 43 Tippanna v. Ghanshyam, AIR 2004 Kant 446, 448 (para 13) : ILR 2003 Kant 4764 : 2004 AIR Kant HCR 2701 : 2003 (4) KCCR 3050.

4. COMPETENCE Sections 4 of the Oaths Act says that all witnesses are to take oath or affirmation. But under the proviso, Sections 4 and 5 of that Act shall not apply to a child witness under the age of 12 years. Therefore, if once the Court is satisfied that a child below 12 years of age is a competent witness then such witness can be examined without oath or affirmation. Where the court is satisfied that the child witness understands the duty of speaking the truth though he does not understand the nature of an oath or affirmation, the provisions of Sections 5 and 6Oaths Act do not apply and court should proceed to record the evidence. 44 The competency of a child witness is different from his understanding the effect of oath or affirmation. Unless the child understands the effect of oath, it is not necessary to administer the oath. 45 Such evidence, if tendered for the prosecution, must be "corroborated by some other material evidence in support thereof implicating the accused. 46 44 Shamba @ Muniswamy v. State, ILR 1960 Mys 311. 45 Sudhakaran v. State, 1983 Ker LT 5941. 46 Section 38(ii) (P HIPSON E VIDENCE , 13th Edn., p 695) (para 31.11).

5. COMPETENCE--OMISSION TO TAKE OATH Even Sections 7 (old Sections 13) of the Oaths Act states that even if there was omission to take any oath or make any affirmation, it would not invalidate any proceeding or render inadmissible any evidence.Section 7 is unqualified in its terms and applies to all omissions accidental or deliberate. The Supreme Court in Rameshwar v. State 47 observed: "An omission to administer an oath, even to an adult, goes only to the credibility of the witness and not his competency. The question of competency is dealt with in Section 118 Evidence Act. The Oaths Act does not deal with competency and under Section 13 of that Act omission to take oath does not affect the admissibility of the evidence. It therefore follows that the irregularity in question cannot affect the admissibility of the evidence of the girl." The court relied onMd. Sugal Esa v. The King 48 , wherein it was observed " Sections 13Oaths Act , is quite unqualified in its terms and there is nothing to suggest that it is to apply only where the omission to administer the oath occursper incuriam . If that had been the intention of the Legislature, it would have been simple to insert the words in this section to that effect....It may be observed that this question can no longer arise in India because in 1939 the Legislature passed the Oudh (Amendment) Act 39 of 1939 which settles the law in accordance with the Bengal and Oath

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decisions referred to above." The decisions referred to by the Privy Council are R v. Sewa Bhogta, 49 and Ram Samujh v. Emperor, 10 OC 337. 50 47 AIR 1952 SC 54. See also Bhagwania v. State of Rajasthan, 2001 Cr LJ 3719 (para 21) (Raj). 48 AIR 1946 PC 3. 49 14 Beng. LR 294 (FB). 50 Lalaram Hariram v. State of M.P., AIR 1960 MP 59; Rameshwar v. State of Rajasthan, AIR 1952 SC 54; Dhansai Sahu v. State, AIR 1969 Ori 105; Lalaram v. State, AIR 1969 MP 59; R. v. Sewa Bhogta, 14 Beng. LR 294(FB) ; Hari Ramji v. Emperor, 20 Bom LR 365 : AIR 1918 Bom 212; R. v. Sashi, 24 CWN 767; In re : Chinna Yenkadu, ILR 38 Mad 550; Emperor v. Yiraperumal, (1892) 16 Mad 105.

6. 'DISEASE' The word 'disease' used under Section 118 of the Evidence Act refers to such disease which affects the patient mentally and he or she due to the said disease is unable to understand questions or is prevented from giving rational answers to those questions. Mere restriction on the movement of the plaintiff due to heart ailment would be of no consequence as she could apply for her examination on commission. 51 51 Rajni Shukla v. Special Judge (E.C. Act), Banda,AIR 2008 (NOC) 474(All) .

7. ACCUSED AS A WITNESS Previously the accused was not a competent witness to testify on his own behalf. So he could not be administered an oath. Prior to the amendment of the Cr. P. Code it was held that the accused though competent to testify is an incompetent witness. 52 By reason of the amendment of Section 342-A,Cr. P.C. in 1955 (PresentSection 315(1),Cr. P.C. of 1973), the accused may wish to examine himself as a defence witness. In such a case he has to take the oath. Under English Law, in criminal proceedings the accused 53 and the wife or husband of the accused (except in certain cases 54 ) are incompetent as witnesses for the prosecution. Taking an oath or making an affirmation is an indispensable pre-requisite for any person giving evidence in a court, excepting under special laws like under Sections 7 of the Prevention of Corruption Act or in proceedings underSection 107,Cr. P.C. or maintenance proceedings under the Cr. P.C. The accused is not a competent witness.55 Accused who answers questions put to him u/ Section 342, old Cr. P.C. (nowSection 313,Cr. P.C.) can not be treated as a witness.56 An accused who is convicted on his own plea of guilty is a competent witness against his co-accused, the reason being that on his conviction he ceases to be an accused, and the bar under Sections 5 of the Oaths Act (old) against administration of oath to him cannot apply. The fact that his conviction was wrong or was subsequently set aside in appeal, cannot affect his competency. 57 Evidence adduced by accused in his defence is not inadmissible against co-accused, though, such evidence should be received with great scrutiny and care. 58 The mere fact that a person was convicted for the same offence does not in any way detract from his competence to give evidence against his co-accused. 59 Even when the pardon granted to an accused is withdrawn he is a competent witness against other accused, and there is no bar to his examination at the fresh trial necessitated by the retirement of the Sessions Judge. 60 If once an accused is either discharged or convicted or acquitted or his case is withdrawn he becomes a competent witness for prosecution. 61

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Art. 20(3) of the Indian Constitution states that no person accused of an offence shall be compelled to be a witness against himself. It is a protection given to an accused, but if he volunteers to give evidence there would not be any compulsion to give evidence and so Art. 20(3) would not be attracted. (see Section 73 of this Act ) 62 Where there are two accused a Magistrate cannot convert one of them into a witness against the other except when a pardon has been lawfully granted. 63 52 Re : Nga Po Min, 1932 Rang 198 FB; Nafar Sheikh v. Emperor, AIR 1914 Cal 276. 53 R. v. Rhodes, (1889) 1 Q.B. 77; Criminal Evidence Act 1898, S. 1(a) (see Appendix f 42-01). 54 Post , ff 31-20 et seq . 55 Re : B.N. Ramakrishna Naidu , AIR 1955 Mad 100. 56 Ranjit Singh v. State, AIR 1952 HP 81. 57 Ranjha v. State, AIR 1952 HP 5. 58 Sriramulu Naidu v. State, (1963) 2 Cr LJ 546(AD) ; following Shapurji Sorabji v. Emperor, AIR 1936 Bom 154; Nandgopal v. State, AIR 1951 Nag 189. 59 Vaikuntham Jaganadham v. State, AIR 1952 Ori. 164. 60 State v. Bhoora, AIR 1961 Raj 274. 61 Tulshi Lal Sao v. Union of India, 1970 BLJR 915. 62 In re : Central Calcutta Bank Ltd., AIR 1957 Cal 520. 63 Reg. v. Hanmanta, (1877) 1 Bom 610. See Nabi Bakhsh v. Emperor of India, (1902) PR No. 12 of 1902 (Cr); Allahabad v. King Emperor of India, (1906) PR No. 9 of 1906 (Cr).

8. EVIDENCE OF ACCOMPLICE In Laxmipat Choraria v. State of M.P. 64 when one Ethyl Wong arrived at Bombay, two customs officers who were waiting for her, questioned her. She admitted her part in a smuggling racket set up by another man and gave a statement. The prosecution did not name her as one of the accused in the case. The other accused in the trial court raised a question that she should also be tried along with them so that her testimony might not be available against them. Subsequently the accused did not raise that question. H IDAYATULLAH . J., observed: "Now there can be no doubt that Ethyl Wong was a competent witness. Under Sections 118 of the Indian Evidence Act all persons are competent to testify unless the court considers that they are prevented from understanding the questions put to them for reasons indicated in that section...If the customs authorities treated Ethyl Wong as a witness and produced her in court she was bound to answer all questions and could not be prosecuted for her answers..In India the privilege of refusing to answer has been removed so that the temptation to tell a lie may be avoided, but it was necessary to give this protection. The protection is further fortified by Art. 20(3) which says that no person accused of any offence shall be compelled to be a witness against himself. This Article protects a person who is accused of an offence and not those questioned as witnesses. A person who voluntarily answers questions from the witness box waives the privilege which is against being compelled to be witness against himself, because he is then not a witness against himself but against others.Section 132 of the Evidence Act sufficiently protects him since his testimony does not go against himself. In this respect the witness is in no worse position than the accused, who volunteers to give evidence on his own behalf or on behalf of a co-accused. There too the accused waives the privilege conferred on him by the Article since he is subjected to cross-examination and may be asked questions incriminating him. The evidence of Ethyl Wong cannot, therefore, be ruled out as that of an incompetent witness. Since Ethyl Wong was a self-confessed criminal, in conspiracy with others who were being tried, her

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evidence was accomplice evidence.. Section 133 of the Evidence Act makes the accomplice a competent witness against an accused person." Dealing with the question whether she could be administered an oath in view of the prohibition of Sections 5 of the Oaths Act , after referring to Sections 5 of Oaths Act and Section 342-A (old) Criminal Procedure Code andSection 337Cr. P.C. (old)Section 338Cr. P.C. (old) observed: "The consensus of opinion in India is that the competency of an accomplice is not destroyed because he could have been tried jointly with the accused but was not and was instead made to give evidence in the case. Sections 5 of Indian Oaths Act and Section 342Cr. P.C. do not stand in the way of such a procedure." An uncorroborated testimony of accomplice cannot be accepted.

65

64 AIR 1968 SC 938. 65 Binod Kumar Pandit v. State of Jharkhand through the CBI, 2009 CrLJ 111(NOC) (Jhar) : 2008 (3) AIR Jhar R 383.

9. APPROVER'S EVIDENCE An approver is a competent witness. 66 During the course of a police investigation into a case of house-breaking and theft, several persons were arrested, one of whom made certain disclosures to the police and pointed out several houses which had been broken into by his accomplices. Thereupon the police discharged him, and made him a witness. At the trial he gave evidence against his accomplices, who were all convicted. It was held that his evidence was admissible under this section though he had been illegally discharged by the police. 67 By allowing a juvenile to be an approver and to give evidence disclosing the circumstances leading to the commission of the offence in question, the Court cannot be said to be causing any harm or prejudice to the interest of the juvenile. In such a situation the juvenile delinquent having stepped into the shoes of a witness is governed by the law which governs a child witness simplicitor as enumerated in Section 118 of the Evidence Act and granting pardon to juvenile would not be against the spirit of the Act. 68 66 State of Bihar v. Srilal Kejriwal, AIR 1960 Pat 459. 67 Queen-Empress v. Mona Puna, (1892) 16 Bom 661. 68 Raj Ambarish Sen v. State of W.B., 2003 CrLJ 3830, 3832 (Para 6 ) : 2002 (3) All Cr LR 1017 : 2002 Cal Cr LR 759 : 2002 (4) Cal HN 443 : 2002 (2) Cal LJ 562 : 2003 Cal WN 310.

10. WITNESS FOR DEFENCE Though a witness was cited along with others as eye-witnesses in the charge-sheet, and that witness was examined as defence witness, it was held that as a defence witness, she is a competent to speak to the occurrence. 69 There is no provision in Criminal Procedure Code warranting a practice of examining the same person as a witness for prosecution and also for the defence. Such practice is to be condemned. 70 See also under heading 'Defence witness' under Section 3. 69 Joseph v. State of Kerala, 1957 Ker LT 500. 70 Gopiram v. State, AIR 1954 MB 21.

11. CHILD WITNESS--COMPETENCE

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With respect to children, no precise age is fixed by law within which they are absolutely excluded from giving evidence on the presumption that they have not sufficient understanding. Neither can any precise rule be laid down respecting the degree of intelligence and knowledge which will render a child a competent witness. In all questions of this kind much must depend upon the good sense and discretion of the Judge. In practice, it is not unusual to receive the testimony of children of eight or nine years of age when they appear to possess sufficient understanding. 71 "There is no fixed age below which children are incompetent to give evidence.

72

In civil proceedings, a child is clearly competent if the Court is of the opinion that he or she understands the nature of an oath. However, even if a child does not understand this, his or her evidence may still be heard by the Court if it is of the opinion that (1) he understands that it is his duty to speak the truth, and (2) he has sufficient understanding to justify his evidence being heard. In criminal proceedings, a person of any age is competent to give evidence if he or she is able to (1) understand questions put to him or her as a witness, and (2) give answers to them which can be understood." 73 Competency of the child witness can be ascertained by questioning him/her to find out intelligence to understand the occurrence witnessed and duty to speak the truth before the Court and thereby his/her statement inspiring confidence can be relied upon even without corroboration. 74 Competency of a child witness cannot be questioned if his evidence is otherwise probable and true. A child witness is not an incompetent witness whose evidence may have to be always discarded. 76 Child of three and a half years is not a competent witness due to the tender age.

75

77

A child of 8 years who does not understand questions or is unable to give rational answers, is not a competent witness. 78 If a boy in spite of his young age can both understand questions and give rational answers to them he should be examined. 79 The Supreme Court accepted the evidence of a child of five years who was the sole witness to murder by a domestic servant. 80 The Supreme Court observed that a student of 8th standard these days acquires sufficient understanding to perceive the facts and to narrate the same. 81 A girl of five years appeared as a witness and stated that the accused, her step-mother, had thrown her and her younger sister aged about three years into the well. The question arose whether she was a competent witness because of her tender age. It was held that a child of tender years was a competent witness. The question to be decided in each case is whether a particular child who has appeared in the witness-box is intelligent enough to be able to understand as to what evidence he or she is giving and to be able to understand the question and to be able to give a rational answer. 82 An infant may be sworn in a criminal prosecution provided such infant appears on strict examination by the Court to possess a sufficient knowledge of the nature and consequences of oath. 83 Even in the absence of oath the evidence of a child witness can be considered, provided that such a witness is able to understand the questions and is able to give rational answers thereof. The only precaution which the Court should bear in mind while assessing the evidence of a child witness is that the witness must be reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored. 84 The Court should record the evidence of a child witness in question-answer form 85 Where the questions asked during the preliminary examination were not recorded but the answers recorded indicated the questions asked, such an omission does not render the evidence of the child witness unworthy of acceptance. 86 A child of only 5 years of age was witness of the deceased, a seven year old boy, being last seen together with the accused. The boy not only gave out his name, his father's name but also gave out his address as well as the class where he was studying. He also answered the question of general knowledge such as number of months in a year and number of day in a week. All this showed that he had understanding and should have been allowed to be examined. It was held that refusal to examine him was improper. 87 Children particularly of tender age have good memory and no conscience. They can easily be taught stories which they believe to be true, and are influenced by fear and punishment or hope of reward and by desire of notoriety. While considering the evidence of a child, these considerations should not be lost sight of. 88

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Where the children, who deposed against the accused were his daughters and possessed sufficient understanding, their testimony could be act ed upon. 89 Summoning of a minor girl who was mature enough to depose, as a witness in a departmental enquiry against another person, in respect of illicit relationship of the delinquent with minor's mother, was held to be not improper. 90 Where the trial Court took on record the sworn affidavit filed by the minor, the same was held to be illegal as he is incompetent to swear to an affidavit and cannot affirm statements found in affidavit. Such an affidavit was held to be incompetent and inadmissible in evidence. 91 The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge, who notices his manners, his apparent possession or lack of intelligence, and the said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of obligation on an oath. The decision of the trial Court may, however, be disturbed by the higher Court if from what is preserved in the records, it is clear that his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make beliefs. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaped and moulded, but it is also an accepted norm that, if after careful scrutiny of their evidence the Court comes to the conclusion that there is impress of truth in it, there is no obstacle in the way of acceptance of the evidence of a child witness. 1 71 T AYLOR , 12th Edn., S. 1377, p. 869; Arulan Israel v. State, ILR (1954) TC 1200. 72 R. v. Z., (1990) 2 QB 355, 359-361; DPP v. M, (1998) 2 WLR 604. Criminal cases, Youth Justice and Criminal Evidence Act 1999, S. 53(1). 73 P HIPSON ON E VIDENCE , 15th Edn. (2000), pages 152-153 (para 8-11). See also Ratansinh Dalsukhbhai Nayak v. State of Gujarat, (2004) 1 SC 64, Yuvaraj Ambar Mohite v. State of Maharasthra, (2006) 12 SCC 512; Acharaparambath Pradeepan v. State of Kerala, (2006) 13 SCC 643, 656 (para 46). 74 Ram Bilas Singh v. State of Bihar, 1999 Cr LJ 2360 (paras 7 and 9) (Pat). See also Dhani v. State, 1999 Cr LJ 2712 (para 6) (Ori). 75 Niranjan Amratlal v. Uttamran Atmaram, ILR 1970 Guj 691: 1979 Raj Cr C 15. 76 Radhey Shyam v. State of U.P., 1993 Cr LJ 3709, (para 6) (All). 77 Padam Singh v. State of Rajasthan, 1982 Raj LW 469. 78 State of Bihar v. Hanuman Koeri, 1971 Crl LJ 187(Pat) . 79 Queen-Empress v. Ram Sewak, (1900) 23 All 90. See also Sachin v. Sunita Vashisht, AIR 2005 P&H 204, 205 (para 3). 80 Suresh v. State of U.P., AIR 1981 SC 1122. Also see Ram Bilas Singh v. State of Bihar, 1999 Cr LJ 2360 (paras 9, 11 and 12) (Pat). Testimony of a child witness found unreliable, acquittal upheld. State of Delhi v. Vijay Pal, AIR 1980 SC 1621; CP Fernandes v. U.T. Goa, AIR 1977 SC 135. 81 Dhanraj v. State of Maharashtra, AIR 2002 SC 3302 (para 7) : (2002) 7 SCC 425. 82 Dato v. State, (1954) Pun 825. Also see Narayan Iranna Potkanthi v. State of Maharashtra, 1994 Cr LJ 1752 (para 10) (Bom); Akbar Ashraf Khan v. State of Maharashtra, 1995 Cr LJ 3575 (para 13) (Bom), relying on State of Maharashtra v. Prabhu Barku Gade, 1995 Cr LJ 1432 and Vadivelu Thevar v. The State of Madras, AIR 1957 SC 614. 83 Ramu v. State of Rajasthan, 2006 CrLJ 4363, 4365 (para 14) (Raj). 84 Dattu Ramrao Sakhare v. State of Maharashtra, (1997) 5 SCC 341 : 1997 SCC 685(Cri) . 85 Ramu v. State of Rajasthan, 2006 CrLJ 4363, 4365 (para 14) (Raj). 86 State of Maharashtra v. Prabhu Barku Gade, 1995 Cr LJ 1432 (para 18) (Bom). 87 Ram Babu Paswan v. State of Bihar, 2007 CrLJ 3365, 3366-67 (para 5) (Pat). 88 Kurrahwa v. State of U.P., 1985 All LJ 1036.

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89 State of Maharashtra v. Vilas Pandurang Patil, 1999 Cr LJ 1062, at p. 1066 (Bom). Children of deceased, eyewitnesses, answering preliminary questions and satisfying that they were answering intelligently and fearlessly, giving details of occurrence, withstood test of cross-examination, their evidence acceptable, Baby Kandayanathil v. State of Kerala, 1993 Cr LJ 2605 (para 4) (SC) : AIR 1993 SC 2275; Prakash v. State of M.P., AIR 1993 SC 65 (para 11); Badi Guravaiah v. State of A.P., 1993 Cr LJ 3496 (paras 9 and 10) (AP); sole testimony of minor son of deceased found credible, Dayanand v. State of Haryana, 1994 Cr LJ NOC 407(P&H) . 90 Meenu Sharma v. State, AIR 2003 Del 334, 339. 91 S. Amutha v. C. Manivanna Bhupathy, AIR 2007 Mad 164, 172 (paras 32 and 33). 1 Golla Yelugu Govindu v. State of A.P., AIR 2008 SC 1842, 1844 (para 9) : 2008 CrLJ 2607.

12. CHILD WITNESS--PRELIMINARY INQUIRY The Supreme Court has held that it is desirable that judges and magistrates should always record their opinion that the child understands the duty of speaking the truth, and state why they think so. Otherwise the credibility of the witness may be seriously affected, so much so that in some cases it may be necessary to reject the evidence altogether. 2 In Md. Sugal Esa v. The King, 3 the Privy Council observed. "It is not to be supposed that any judge would accept as a witness a person who he considered was incapable not only of understanding the nature of an oath but also the necessity of speaking the truth when examined as a witness." 4 The competency of a person to testify as a witness is a condition precedent. To administer oath or affirmation is a question distinct from his credibility. The court is at liberty to test the capacity of a witness to depose by putting proper questions and know whether there was proper understanding and the person was able to give a rational account of what he has seen. If a person of tender years can satisfy those requirements he can be treated as a competent witness. That the judge can form his own opinion 5 vests in the Court the discretion to decide whether an infant is or is not disqualified to be a witness by reason of understanding or lack of understanding. The proposition that the competency of the witness should be tested before his examination is commenced is not quite justified by the provisions of this section. 6 According to the Bombay and the Rangoon High Courts when a witness is of tender years the Court should satisfy itself that the witness is competent to testify. 7 The object of putting questions to a child witness is that the time of the Court should not be wasted if it is found, as the result of a preliminary inquiry, that the child is neither intelligent nor can he give evidence which may be acceptable. 8 But there is no legal obligation to ask preliminary questions 9 and recording of questions is also not necessary where the answers recorded clearly suggest the questions asked. 10 Where the child witness was about sixteen years of age on the date of examination and was not of tender age, it was held that the credibility of the such witness could not be discredited on the ground of non-putting of preliminary questions to test whether she was capable of giving rational answers or not. 11 Merely because the trial judge did not put certain formal questions to the child witness or that he did not append a certificate that the child understood the duty of speaking the truth, the statement of the child does not become ineffective and its probative force will not suffer on that ground. 12 Omission of the trial judge to put questions to a child witness, unconnected with the case, to satisfy himself whether the witness is able to understand the questions and to return co-herent answers and to incorporate that in the record, does not render the evidence of child witness inadmissible and unreliable. 13 Keeping a record of preliminary examination is not a condition precedent to taking of evidence. It may be desirable but not an invariable requirement of law. 14 When no oath is administered to a child the evidence is required to be taken in the form of questions and answers; as a child witness is apt to be swayed away by influences. If it is done, not only the trial court but the appellate court also is in a position to gather whether the answers are relevant and whether they are tutored replies. It is a safeguard given to the accused to check the veracity of the child witness. Though, failure to record is not fatal, it is bound to result in some prejudice to the accused. 15

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In examining a child witness, the procedure contemplated under this section must be followed.

16

2 Rameshwar v. State, AIR 1952 SC 54. See also In re : Porapati Muthiah, ILR 1965 AP 650; State of Mysore v. Hanumantha, 1962 Mad LJ 355(Cri) : 39 Mys. LJ 823; In re : Raju Shetty, AIR 1960 Mys 48; Dhanna v. State, AIR 1951 Raj 37. 3 1946 PC 3. 4 In re : Raju Shetty, AIR 1960 Mys 48. 5 Purna Chandra v. State, AIR 1959 Cal 306 following Fakir v. Emperor, 11 CWN 51; Dhansai Sahu v. State, AIR 1969 Ori 105; Narasingha Karwa v. State, 1975 Cr LJ 1560(Ori) ; Moti Mahal Theatres Ltd. v. Babu Lal, AIR 1955 Punj 109; Abdul R. Patham v. State, (1983) 1 Bom LR 489; Bipin Bihari Sahu v. State, 1986 Cr LJ 406. 6 Krishna Kahar v. Emperor, (1939) 2 Cal 569 : AIR 1940 Cal 182; Nafar Sheikh v. Emperor, (1913) 41 Cal 406 : AIR 1914 Cal 276. 7 Emperor v. Hari, (1918) 20 Bom LR 365; Ah Phut v. King, ILR (1940) Ran 104 : AIR 1939 Rang 402. 8 Karu Singh v. Emperor, (1941) 20 Pat 893 : AIR 1942 Pat 159. 9 Lakhan Singh v. King-Emperor, (1941) 20 Pat 898 : AIR 1942 Pat 183. 10 State of Maharashtra v. Prabhu Barku Gade, 1995 Cr LJ 1432 (para 19) (Bom). 11 Boda Lokya v. State of A.P., 2005 CrLJ 255, 268 (para 40) (AP). 12 In re : Parapati Muthiah, ILR 1965 AP 650 following Rameshwar v. State of Rajasthan, AIR 1952 SC 54; State of Orissa v. Machindra Majui, AIR 1964 Ori 100; Raghbir Singh v. Union of India, ILR 1955 Patiala 509; Marianthony Mariasoosa v. State, AIR 1955 T.C. 81; State of Rajasthan v. Vijairam, 1968 Cr LJ 270(Raj) ; Kabiraj Tudu v. State of Assam, 1994 Cr LJ 432 (para 10) (Gau). See also State of Jharkhand v. Dasrath Sao, 2006 CrLJ 307(NOC) (Jhar) : 2006 (2) AIR Jhar R 1 (DB). 13 Jaisingh v. State, 1973 Cr LJ 1466(All) . 14 Santhosh Mandal v. State, 1983 Cr LJ 773(Cal) (DB); Nandeshwar Kalita v. State of Assam, 1983 Cr LJ 1515(Gau) (DB). 15 Prabhu v. State, ILR 1977 Bom 1505; Ram Hazoor Pandey v. State, AIR 1959 All 409 : 1959 Cr LJ 796; Varkey Joseph v. State of Kerala, AIR 1960 Ker 301; J.V. Wagh v. State of Maharashtra, 1996 Cr LJ 803 (para 15) (Bom). 16 Talasila Sandhya v. A.P. State Road Transport Corporation, 1996 AIHC 1680 (para 6) (AP).

13. INQUIRY--ENGLISH LAW The conduct of an inquiry by the judge as to whether a child should be sworn or not may well present problems today. The rules were criticised indeed by the Criminal Law Revision Committee in trenchant forms in their eleventh report. 17 ; "The inquiry whether the child understands the nature of the oath, if carried out conscientiously, seems to us unrealistic; and the investigation sometimes made by the court as to whether the child believes in divine retribution for lying is really out of place when the question is whether he understands how important it is for the proceedings that he should tell the truth to the best of his ability about the events in question in particular that he should not say anything against the accused which he does not really believe to be true and that he should say if he did not see something or does not remember it. For similar reasons the test in S. 38 of the 1933 Act whether the child 'understands the duty of speaking the truth' seems inadequate; for even very young children understand this duty in a general way without necessarily understanding the particular importance of telling the truth in the proceedings. Some judges fee that the inquiry which they have to make sometimes verges on force." The Committee therefore recommended that children over 14 should always give evidence on oath and children under that age should always give evidence unsworn. This recommendation has the merit of simplicity and should be implemented.

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The Court of Appeal has recently given guidance as to the principles to be applied to such inquiries today. In R. v. Hayes , the appellant had been convicted of offences involving indecency with three boys. It was said on appeal that the judge had wrongly allowed two of the boys to be sworn. One of them in answer to the judge's inquiry had revealed that he was ignorant of the existence of God. The Court said: "the fact that....questions and answers on their face, reveal the boy declaring that he is wholly ignorant of the existence of God does lend some force to the submission that if the essence of the sanction of the oath is a divine sanction, and if it is an awareness of that divine sanction which the court is looking for in a child of tender years, then here was a case where, on the face of it, that awareness was absent. The court is not convinced that that is really the essence of the court's duty in the difficult situation where the court has to determine whether a young person can or cannot properly be permitted to take an oath before giving evidence. It is unrealistic not to recognise that, in the present state of society, amongst the adult population the divine sanction of an oath is probably not generally recognised. The important consideration, we think, when a judge has to decide whether a child should properly be sworn, is whether the child has a sufficient appreciation of the solemnity of the occasion and the added responsibility to tell the truth, which is involved in taking an oath, over and above the duty to tell the truth which is an ordinary duty of normal social conduct. Against the background of those general considerations of principle, we think it right also to approach the matter on the footing that this is very much a matter within the discretion of the trial judge and we think that this court, although having jurisdiction to interfere if clearly satisfied that the trial judge's discretion was wrongly exercised, should hesitate long before doing so. The judge sees and hears the boy or girl, which means very much more than the bare written word, and it may easily be that the judge comes to the conclusion that the way in which he has initially been phrasing his questions has been such that the child to whom the questions are directed has not sufficiently understood them, and he may then attempt to phrase his questions in a different way." In the case of village boys it is all the more necessary to put questions in order to find out whether they are intelligent enough to understand what they had seen. 18 Ordinarily, girls have full power of understanding and give rational answers after attaining age of 12 or 13 years, when they normally attain puberty. 19 As a rule of caution the court must decide whether the child witness is intelligent enough to understand the questions and give rational answers. 20 Though it may be desirable to make a record of the questions and answers the failure to record the same is not fatal, as the decision primarily rests with the trial judge. 21 The appellate court can examine the correctness of the trial court's decision regarding the competency of the child witness. 22 When the Sessions Judge observed that the witness gave the evidence in a straight forward manner, it was held that in view of the observations made, such evidence should not be discarded on the ground of danger of the child being tutored. 23 The credibility of a child witness would be affected by the omission of the trial judge to record the reasons whether the child understood the duty of speaking the truth. 24 The opinion formed at the preliminary inquiry is not final and the judge may change that view if the examination and the cross-examination reveals the incompetency of the child. 25 Court should not discard the trial court's opinion about the credibility of witness on the sole ground that part of his testimony is not reliable. The appellate court must be very slow in discarding evidence of any witness, if he is found reliable by the trial court and if his testimony was accepted. 26 When evidence of a child witness aged 8 years was recorded in a narrative form in a clear and cogent manner, it was held that merely because the evidence was not recorded in question and answer form its value would not be impaired. So also minor discrepancies would not affect the evidence. 27 Where the child immediately after the occurrence gave details of the incident and those facts were corroborated by the medical evidence, such evidence of the child could not be discarded. 28 17 P HIPSON 13th End., p. 697 (para 31.11). 18 Ghasi Ram v. State, AIR 1952 Bhopal 25. 19 State v. Dukhidei, AIR 1963 Ori 144; Sadananda Bissoi v. State, ILR 1968 Cut 972. 20 Shiv Raj Singh v. State of Y.P., AIR 1955 VP 36.

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21 Arulan Isreal v. State, AIR 1955 Tr C 6; Sataji Nathaji v. State, (1976) 17 Guj LR 254; Santhosh Mandal v. State, 1983 Cr LJ 773(Cal) (DB). 22 Shankarlal v. Yijay Shanker Shukla, AIR 1968 All 58; Jaisingh v. State, 1973 Cr LJ 1466; Santhosh Mandal v. State, 1983 Cr LJ 773(Cal) (DB). 23 Shabir Rashid v. State, 1969 Cr LJ 1282(Del) . 24 State v. Lobsang Sharap, 1973 Cr LJ 85. 25 Govind Nath v. State, AIR 1961 Guj 11. 26 Madhusudan Das v. Narayani Bai, AIR 1983 SC 114. 27 Biri Singh Majhi v. State of Assam, 1977 Cr LJ 1349(Gau) . 28 Kana Majhi v. State, 1985 Cr LJ 1876(Ori) .

14. CHILD WITNESS--CORROBORATION The Supreme Court in Rameshwar v. State of Rajasthan 29 relying on Baskerville's case 30 observed: "The rule, which according to the cases has hardened into one of law, is not that corroboration is essential before there can be a conviction, but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the judge, and in jury cases, must find place in the charge, before a conviction without corroboration can be sustained. The tender years of the child which is the victim of a sexual offence, coupled with other circumstances appearing in the case such, for example, as its demeanour, unlikelihood of tutoring and so forth, may render corroboration unnecessary, but that is a question of fact in every case. The only rule of law is that this rule of prudence must be present to the mind of the judge or the jury as the case may be and be understood and appreciated by him or them. There is no rule of practice that there must, in every case, be corroboration before a conviction can be allowed to stand." 31 Where the Court finds traces of tutoring, corroboration is a must before the evidence of the child witness can be act ed upon. 32 In England 33 the unsworn evidence of a child requires to be corroborated by "some other material evidence in support thereof implicating the accused." 34 Other material evidence means evidence other than that admitted by this section. 35 Thus the un-sworn evidence of a child cannot corroborate the unsworn evidence of another child. 36 In D.P.P. v. Hester 37 the House of Lords held that the evidence of an unsworn child could corroborate the sworn evidence of another child provided that the unsworn evidence is corroborated and that corroboration could be found in the evidence of the sworn child, subject to the jury being satisfied after suitably adequate guidance that each child is a truthful and satisfactory witness. It was stressed that a particularly careful warning should be given to the jury. However, the result is that the so-called rule against "mutual corroboration" is no more. 38 A fortiori a child's unsworn evidence may corroborate the sworn evidence of an adult and a child's sworn evidence may corroborate the unsworn evidence of another child. 39 The general principle is that a person should only be convicted of a crime when the court is satisfied that the guilt has been established. When the conviction is to be based on the evidence of a child witness, what should be the nature of corroboration and to what extent there should be corroboration will depend upon the facts and circumstances of each case. It would be prudent to seek corroboration to the evidence of a child witness. 40 Evidence of independent witness is required only to make it reasonably safe to believe the story put forth by the child witness but it need not extend to all circumstances necessary to identify the accused. 41 A rule of caution makes it necessary to see whether the testimony of child has been corroborated in essential particulars, unless the circumstances render it safe to accept the testimony without corroboration. 42 It is not safe to act on the evidence of a child of about four years without corroboration since there is a likelihood of his being tutored 43 but in case of unlikelihood of tutoring, no corroboration of his statement is required. 44 The

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evidence of a child witness is required to be evaluated carefully as the child may be swayed by what others may tell him or her as the child is an easy prey to tutoring. Wisdom requires that evidence of a child witness must find adequate corroboration before it is relied on. 45 When the version of the incident is found truthful the courts would be justified in believing the evidence of a child witness. 46 When a girl below 12 years was kidnapped, and the court being satisfied that she realised the value of speaking the truth and the significance of the oath, appended the required certificate, her evidence, if believed, would, even without corroboration be sufficient to maintain the conviction. The rule that the statement of the prosecutrix must be corroborated in material particulars by some other evidence should be restricted to cases of rape only, and should not be extended to other cases of sexual nature. 47 Where there is no corroboration of the testimony of a prosecutrix in a rape case it is not safe to convict the accused. 48 Where a girl of 9 years, as a prosecutrix in a rape case gave evidence, it was held that as she was found to be intelligent and not tutored and that she gave a spontaneous and truthful version, there was no reason to disbelieve her even though there was no corroboration. 49 In a rape case, where the accused was a police officer, corroboration of the evidence of the prosecutrix is not necessary, as the standards of proof to be expected by the court must not be higher than is expected of an injured witness, unless circumstances warrant greater caution. 50 In the case of corroboration of the evidence of one child by that of another the evidence of both the children is to be looked at with care and act ed upon with caution. 51 Where the very statement of the child could form the basis for conviction, no corroboration is necessary. 52 If on close scrutiny of the evidence of a child witness it is found to bear the impress of truth there is no obstacle in the way of accepting the evidence whether corroborated or not. 53 Even if there be no infirmity in the evidence of a young boy it is desirable to seek corroboration of his evidence in view of his tender age. 54 In a case of murder conviction on the evidence of sole testimony of child witness is not impermissible. 55 The evidence of a child witness is not required to be rejected per se ; but the Court, as a rule of prudence, considers such evidence with close scrutiny and only on being convinced about the quality thereof and reliability, can record conviction, based thereon. 56 When the child witness of tender age gave evidence improving his statement before the Sessions Judge vis-a-vis his statement before the police, it is dangerous to convict a person for murder on the uncorroborated evidence of the child. 57 Though it cannot be said that in all situations the evidence of a minor should be corroborated by other independent evidence but if he contradicted himself on material particulars his evidence requires a closer scrutiny. 58 The law recognises the child as a competent witness but a child particularly at such a tender age of six years who is unable to form a proper opinion about the nature of the incident because of immaturity of understanding, is not considered by the Court to be a witness whose sole testimony can be relied without other corroborative evidence. 59 Where the child witness cogently narrated the incident of murder immediately after the occurrence to his relations who narrated the incident in the Court as it was narrated to them by the child witness, their evidence had corroborative value to the testimony of the child witness and made his evidence credible. 60 Where the children of the deceased omitted to state injuries on the accused which they had failed to notice and there was evidence firmly establishing that the accused sustained injuries in the manner as told by one of the witnesses, the wife of the victim, child witnesses could not be guilty of suppression. 61 The testimony of the child witness is reliable provided the same is corroborated by other witness. However, the need for corroboration is more a rule of practical wisdom than of law. 63

62

29 AIR 1952 SC 54. See also Mohd. Kalam v. State of Bihar, (2008) 7 SCC 257, 259 (para 8). 30 (1916) 2 KB 658. 31 See also Vasu v. State of Kerala, ILR 1960 Ker 256; Ghasiram Behara v. State, ILR 1962 Cut 505; Ulla v. King, 1950 Ori 261; Jalwanti Lodhori v. State, 1953 Pat 246. 32 Arbind Singh v. State of Bihar, AIR 1994 SC 1068 : 1995 Supp (4) SCC 416.

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33 See generally Andrews., "The Evidence of Children" (1964) Crim LR 769 and R. v. Khan, (1981) Crim LR 330. The Court of Appeal said in that case that as a general rule there should be an inquiry as to the child's understanding of the oath. 34 Children and Young Persons Act 1933, S. 38. 35 D.P.P. v. Hester, (1973) AC 296 : (1972) 3 WLR 910 : (1972) 3 All ER 1056. 36 D.P.P. v. Hester, ante. 37 Ante; R. v. E., (1964) 1 All ER 205 must now be regarded as wrongly decided on this point. 38 For further authority on this point see D.P.P. v. Kilbourne, (1973) AC 729, 747 per L ORD H AILSHAM L.C. 39 See R. v. Gregg, (1932) 24 Cr. App. R. 13. 40 Bharvad Bhikha v. State, AIR 1971 SC 1064; Ulla Mahapatra v. King, AIR 1950 Ori 261; Arulan Israel v. State, AIR 1965 Tra-Co. 6; Ram Hazoor Pandey v. State, AIR 1959 All 409; Md. Sugal Esa v. King, AIR 1946 PC 3; Varkey Joseph v. State of Kerala, AIR 1960 Ker 301; State v. Dukhi Dei, AIR 1963 Ori 144; Ghasiram Behera v. State, ILR 1962 Cut 506. 41 Ghewar Ram v. State of Rajasthan, 2001 Cr LJ 4460 (para 15) (Raj). 42 In re : Porapati Muthiah, ILR 1965 AP 650; In re : Shaik Umar Saheb, 1957 AP 343; Abbas v. Emperor, 1933 Lah 667; Jalwanthi v. State, 1953 Pat 246; Munna v. State, 1985 Cr LJ 1925(All) . 43 Amar Singh Bhakthawar Singh v. State, AIR 1954 Punj 282. 44 Zafar v. State of U.P., 2000 Cr LJ 3786 (para 7) (All). 45 State of U.P. v. Ashok Dixit, (2000) 3 SCC 70, as cited in State of Rajasthan v. Om Prakash, (2002) 5 SCC 745 (para 17) : AIR 2002 SC 2235 : 2002 CrLJ 2951. See also Doman Bedia v. State of Bihar (Now Jharkhand), 2004 CrLJ NOC 3(Jhar) : (2003) 2 JCR 734 : 2034 AIR Jhar HCER 253 : 2003 (3) Cur Cr R 619 : 2003 (2) East Cr C 304 : 2003 (3) JLJR 23. 46 Dalip Singh v. State of Punjab, AIR 1979 SC 1173. A young lad of 13 years, not tutored, no infirmity, corroborated, cannot be discarded, Shyam Narayan Singh v. State of Bihar, 1993 Cr LJ 772 (para 41) (Pat). 47 Kan Kanwari v. State of Rajasthan, 1957 CrLJ 688(Raj) . Evidence of 4 year old girl, victim of rape, corroborated by circumstantial evidence, sufficient to prove guilt of accused, Nagam Gangadhar v. State, 1998 Cr LJ 2200 (para 10) (AP). 48 (1976) 3 Cr LT 431 (Punj). Also see Narayan Iranna Potkanthi v. State of Maharashtra, 1994 Cr LJ 1752 (para 14) (Bom). 49 (1975) 2 Cr LT 317 (HP). 50 State v. Chandra Prakash Kewal Chand Jain, 1990 Cr LJ 889(SC) . 51 State v. Yijairam, 1968 Cr LJ 270; State v. Roop Singh, (1966) 16 Raj 252. 52 Dharm Pal v. State, AIR 1971 HP 17. Minor son of deceased, deposition free from infirmities, credible, trustworthy, no corroboration, conviction, Beti Joga v. The State, 1994 Cr LJ NOC 109(Ori) . 53 Md. Sugal Esa v. King, AIR 1946 PC 3. 54 Bharved Bhikha Yalu v. State of Gujarat, AIR 1971 SC 1064. See also Sitaram v. State, AIR 1975 SC 464(Cri) ; Dhansai v. State, 1967 Ori 105; Lalu v. State, 1988 Cr LJ 1301; State of Maharashtra v. Prabhu Barku Gade, 1995 Cr LJ 1432 (para 16) (Bom). 55 Nandeshwar Kalita v. State of Assam, 1983 Cr LJ 1515(Gau) . 56 Surya Narayana v. State of Karnataka, AIR 2001 SC 482 : (2001) 9 SCC 129 : 2001 CrLJ 705. 57 Ramsingh v. State, 1976 Cr LJ 667(Raj) . 58 Pratap Singh v. State of M.P., 2006 CrLJ 310, 312 (para 16) (SC).

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59 Bhagwan Singh v. State of M.P., AIR 2003 SC 1088 (para 19) : (2003) 3 SCC 21 : 2003 CrLJ 1262, relied on Panchhi v. State of U.P., AIR 1998 SC 2726 : (1998) 7 SCC 177 : 1998 CrLJ 4044. 60 Harka v. State of Rajasthan, 1999 Cr LJ 1103, at p. 1106 (Raj). 61 Valummel Thommachan v. State, 1994 Cr LJ 1738 (para 21) (Ker). 62 Annamalai v. State by Sub Inspector of Police, 2007 CrLJ 173(NOC) (Mad), relying on (2003) 3 SCC 21 and (2002) 5 SCC 745. See also State of Orissa v. Purna Chandra Kusal, 2008 CrLJ 4597, 4602-03 (para 10) (Ori). 63 Acharaparambath Pradeepan v. State of Kerala, (2006) 13 SCC 643, 657 (para 51).

15. CONDUCT OF CHILD Where the accused persons were alleged to have assaulted the deceased mother of the child witness of six years, asleep alongwith his two younger brothers, at midnight, the possibility was of all the three children being fast asleep. Mere presence of the children in the house at the time of the occurrence is no assurance to the prosecution case that the eldest child got up hearing the hue and cries and had not only seen the incident but also identified the accused. Taking into consideration the child psychology, a lad of six years having seen his mother being assaulted would have raised a cry, but he quietly went back to sleep only to wake up late in the morning when his natural uncle came to fetch them, which was most unnatural. Therefore, the Court held that it would be hazardous to rely on the sole testimony of the child witness as it was not available immediately after occurrence and before there was any possibility of coaching and tutoring him. 64 64 Bhagwan Singh v. State of M.P., AIR 2003 SC 1088 (paras 21 and 22) : (2003) 3 SCC 21 : 2003 CrLJ 1262.

16. CHILD WITNESS--CREDIBILITY The evidence of a child witness is to be taken with great caution. Normally evidence of a child witness should not be accepted as it is notoriously dangerous unless immediately available and unless narrated before every possibility of coaching is eliminated. There should be close scrutiny of the evidence of child witnesses before the same is accepted by a Court of Law. 65 Every child witness cannot be discredited as untrustworthy, for each case depends upon its particular facts and circumstances. The real test for accepting or rejecting the testimony is how consistent is the story related by him, how it stands the test of cross-examination and how far it fits in with the rest of the evidence and circumstances of the case. 66 Evidence of a child witness cannot be rejected if it is found reliable. 67 Regarding appreciation of the evidence of a child witness, the Court has to see the surrounding circumstances and probabilities, to assess the credibility and trust- worthiness of the evidence. 68 Whether a child witness could be believed or not depends upon the circumstances of each case. 69 A boy of thirteen years from rural area with mature understanding cannot be treated as a child witness. 70 Where the version of a child witness regarding an incident was found truthful the Court is justified in believing his evidence. 71 Witness aged thirteen years knowing the difference between truth and falsehood is a competent witness. 72 When the evidence of a child does not give an impression of being tutored and that statement was corroborated by two other witnesses, the finding of the lower courts based on such evidence for conviction of the accused is not impeachable in revision. 73 When the witness is not only a teenager but also the only eye-witness, the evidence has to be scrutinised with care and caution. If he is able to stand the test of cross-examination successfully and there is no infirmity in his evidence, it cannot be discarded lightly. 74 Where the eye-witnesses were of tender age between 10 to 20 years but stood the test of searching cross-examination by defence counsel, minor contradiction in their statement that the accused delivered four blows by the sharp edge of the axe and then stating that three blows were given by the blunt side was held to be trivial and did not affect the substratum of the prosecution case. 75 Where nothing was brought in the cross-examination of the witness that he being aged about 12 years, there was any infirmity in his understanding of the facts

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perceived and his ability to narrate the same correctly. It was held to be no ground to discard the testimony of the child eye-witness on the ground that other persons, collected on the spot were not examined as it is not always possible. 76 However, where the child witness himself sustained injuries in the course of the very transaction at the very time and the place of occurrence, his deposition was truthful and unpolluted from any external influence, conviction could be based on such evidence. 77 The eye-witness, a 13 year old child, sustained serious head injuries in occurrence due to which he could comprehend what was asked but was unable to communicate to the neighbours, the Investigating Officer and the doctor, so his statement was belatedly recorded which was fully corroborated by the evidence of other witnesses. It was held that in these circumstances disbelieving him was wholly perverse. 78 In a case involving abduction and killing of children, the child witness himself had escaped from abduction attempt twice from the hands of the accused and his version was supported by the evidence of his father, brushing aside of his evidence was held to be not proper. 79 Where a girl aged about 11 years had seen last her neighbour and playmate a deceased, while they were playing together and later the dead body of the deceased was recovered, her testimony could not be rejected solely on the ground that it was not possible for a child of that age to remember what had happened three years ago. 80 In a case involving rape and murder of a three year old girl, the trial Court which had an opportunity of watching the demeanour and conduct of the two child witnesses, found them to be truthful. They stood the test of cross-examination and their evidence was supported by other circumstantial evidence. The Supreme Court held that ignoring and/or brushing aside those circumstances and disbelieving their evidence by the High Court was not proper. 81 Where the child aged 12 years was the younger brother of the deceased, the Court was satisfied about his capacity to understand and give rational answers, and he was injured in the same occurrence, it was held that his evidence could not be rejected merely on the ground that he was brother of the deceased. The mere fact that the child was asked to say about the occurrence and as to what he saw, did not amount to tutoring. 82 There is always danger in accepting the evidence of a child witness of about twelve years as the witness might have been coached by persons who may have influence on the child. 83 Hence where a child witness was found to be tutored and that she had admitted in her cross-examination that due to threats given by her brother she stated that her father had killed her mother, it was held that conviction could not be sustained on the version of such a sole eye-witness. 84 Where the child witness is aged only six years, his evidence is to be approached with great caution. When serious infirmities and contradictions are found in his evidence his testimony cannot be accepted. 85 Where a child witness by reason of his age is not able to make his answers in an intelligible and coherent manner, it is unsafe to rely on such evidence as a whole. 86 Children of the age of about seven years are apt to confuse between what they saw and heard; they could easily be persuaded to believe that they saw what is vividly narrated to them, though they are not untrustworthy in the sense that they speak deliberately falsehood as adults might. [An unsworn testimony of a child is not adequately corroborated by similar evidence of other children.] 87 Where an eight year old child, in front of whom his mother was killed by his father, was examined after a lapse of two months, he was not shown to be uninfluenced and also failed to give full particulars of the incident, conviction on his evidence was set aside. 88 Where the child was said to have been the occurrence when he was 8 or 9 years old and six years later he gave evidence, it was held that it was difficult to place reliance on his recollections of the occurrence, and such evidence cannot be taken to corroborate other evidence. 89 When there are major discrepancies in the evidence and the conduct of the child is also extraordinary, in the absence of any independent corroboration, it is unsafe to base a conviction. 90 Where the prosecution failed to hold T.I. parade after the child eye-witness, the son of the deceased mother, named the three assailants before the police; the prosecution also failed to examine the person whom the child first met after the incident; the conduct of the father of the child was also unnatural as he made no enquires from the child about the deceased before recording of his statement by the police and the trial judge recorded about the demeanour of the child as vacillating during the course of his deposition, it was held that conviction could not be based on such sole testimony of the child witness. 91 The Supreme Court held that we cannot expect much consistency in the deposition of a child of seven years. But the Judge from the tenor of the deposition of the child has to find out whether the child has been tutored or not. 92

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The Court has to closely scrutinise the answers given to the questions put to the child witness before accepting the child as a witness. 93 No presumption of untrustworthiness lies in assessing the evidence of a child witness. It has to be scrutinised carefully and see that there is no possibility of tutoring. 94 While dealing with evidence of a child witness the court must be careful to examine the evidence to exclude the possibility of any tutoring. 1 The competency of a child to give evidence is not regulated by the age but by the decree of understanding he appears to possess. The question depends upon a number of circumstances like possibility of tutoring, the consistency of evidence and how far the child stood the test of crossexamination. 2 There is no legal impediment to the admissibility of evidence of child.

3

When the statement of the child witness contained inconsistencies and patent improbabilities it is indicative of the witness being tutored 4 but where the medical evidence was not in entire conflict with the ocular version of the child witness which differed only regarding the number of blows inflicted and which side of the weapon was used in the first instance, his version cannot be taken to be tutored merely because he was taken by the police for producing him as a witness. 5 The mere fact that the child was asked to say about the occurrence and as to what she saw, is no reason to jump to a conclusion that it amounted to tutoring and that she was deposing only as per tutoring what was not otherwise what she actually saw. 6 Where the evidence of the child witness was cogent and clear, the same could not be doubted on the ground of sketch/map of the site prepared by the Investigation Officer. 7 Where the evidence of unsophisticated school boys, not shown to be inspired by a feeling of enmity towards the accused, contained minor discrepancies, it was held that such minor discrepancies are the badge of truth rather than of falsehood and so their evidence can be relied on. 8 A Child of tender age (about 10 years when examined) witnessed the occurrence of the two deceased persons being assaulted by a wooden stick by the accused and informed her father. It was found that she and her father had no animosity with the accused. There was no exaggeration in her statement and she stuck to her statement made during investigation in all material particulars. Besides the blood stains found on the weapon of assault were of the blood group of the accused. Her testimony was held to be reliable. 9 In a murder and assault case, when the child was sleeping with his father when the accused gave a blow of axe on the neck of his deceased-father, it was natural that seeing the assault the child must have shouted out of fright and asked for help by naming the assailant, the evidence of such a child witness was held to be reliable. 10 Where a minor eye-witness of a murder case was found by the Court as intelligent enough to understand things and competent to give evidence, merely because his educational inability to give proper answers to questions put to him would not make him an incompetent witness. Moreso when his presence on place of occurrence was found to be natural and no material contradiction was found in his statement given in Fardebayan , the evidence of such a child eye-witness was found reliable. 11 The child witness stated that he saw the two deceased children going along with the accused and when he enquired from those children as to where they were going, they answered that they were going with the accused for a loaf. He was instrumental in the arrest of the accused. The deceased were his school mates. It was held that it was not at all unnatural that this child witness could easily recognise the two accused assailants. Besides, this witness had no enmity and no reason for being tutored for falsely implicating the accused. His testimony was held to be reliable. 12 Where the minor daughter of the accused gave a concise, specific and vivid testimony of the incident of the killing of her father by her mother and the same was neither embellished nor embroidered, conviction could be based on it. 13 The minor son of the deceased had seen the accused killing his mother. He legitimately claimed and deposed boldly in a natural course. He was capable of understanding the incidence and gravity of occurrence and was capable of understanding the situation and questions put to him. There was nothing contrary found in the evidence of other prosecution witnesses. It was held that conviction could be based on the testimony of such a witness. 14 Evidence of a child witness is not to be discarded per se . Conviction can be based on the evidence of a child witness who is found competent to depose and his evidence is found to be reliable. 15 Where in a dying declaration of the deceased there was no mention of the presence of her children and no explanation was offered for not recording the statements of the children immediately, it was

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held that it constituted a serious infirmity in assessing the testimony of the child witness. 16 Where the child witness of 11 years of age gave evidence and it was found his statement was inconsistent about when he came to the place of occurrence, and in the FIR there was no mention about the presence of the child witness or from where he saw the incident, it was held that it is unsafe to rely on his evidence. 17 Where there are material and significant contradiction in the evidence of a child witness, it is difficult to rely on such testimony and the accused is entitled to the benefit of doubt. 18 Strangulation of the mother by the father was allegedly witnessed by their children. Injuries found on the deceased indicated prior fight between the two but the children were silent about the fight. Besides, manner of strangulation as alleged was improbable and the corroborative evidence of the neighbours was unreliable. If was held that conviction cold not be based on the evidence of the children. 19 A child witness aged about 7-8 years whose testimony showed that she never understood sanctity of the deposition, would not be relied on. 20 Where the child was aged about 11/2 to 2 years when the incident occurred and his testimony was recorded after about 15 years when he was aged about 17 years, no reliance could be placed on such testimony especially when a vivid description was deposed of what had transpired. 21 Age of the child witness by itself is no criterion to reject the testimony. 22 A girl of five years appeared as a witness and stated that the accused, her stepmother, had thrown her and her younger sister aged about three years into the well. The question arose whether she was a competent witness because of her tender age. It was held that a child of tender years was a competent witness. The question to be decided in each case is whether a particular child who has appeared in the witness- box is intelligent enough to be able to understand as to what evidence he or she is giving and to be able to understand the question and to be able to give a rational answer. 23 The only test of competency of a child witness is his capacity to understand the questions and to give rational answers. But the question of credibility still remains to be satisfied. Being a child witness he is subject to all those frailties which are amenable to any ordinary witness and besides all these frailties, being tender in age he is likely to be tutored and therefore a precaution is to be observed to bring his testimony to a stage of credibility so that he could be stated to have proved or disproved a question of fact. For this, a corroboration is required to his statement. 24 When the trial court satisfied itself before recording the deposition of the child witness and when it is corroborated, such evidence of the child is admissible. 25 When the witness was found to be tutored no reliance can be kept on such evidence 26 but where the testimony of a child witness was not challenged in the cross-examination and remained uncontroverted, the fact of her admission of being tutored by her father, would not ipso facto wash her evidence on record. 27 Where the child witness was the only eye witness for the prosecution and when there were two different versions one in the committing court and another before the Sessions Court it was held that the child was tutored and as there was no corroborating evidence to connect the accused with the murder, no reliance could be placed on the child witness's evidence 28 and also where the child's version is uncorroborated and the subsequent conduct unnatural 29 and where the child admitted to have been brought to the Court by another person and was also told what to depose. 30

In a case where the child, the daughter of the accused, was said to be sleeping at the time of occurrence and that child was staying with the accused for seven months after the occurrence it was held that it was not improper for the prosecution in not examining that child witness. 31 Where the child, aged 14 years at the time of his examination admitted in cross-examination that he was sleeping at the time of the incident, conviction based on his testimony was set aside. 32 Rule of prudence requires the Court to examine the evidence of a child witness with caution. However where a child witness was herself a victim of rape and gave evidence in a natural manner and where there was no strained relationship or enemity with the family of the accused, it was held that there were no circumstances to doubt her evidence. 33 In a case of rape, the testimony of the child prosecutrix that the accused had put his penis into her vagina and committed rape with her, corroborated by medical evidence as well as by other evidence, was found reliable to base the conviction of the accused for the offence of rape. 34 The evidence of the prosecutrix aged about ten years, cannot be rejected simply because it has come from a girl of tender age especially when she

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has sufficiently matured understanding. 35 When incident of rape on the child victim occurred when she was just 6 years of age and her evidence in Court was recorded after four years of occurrence, the minor discrepancies in her deposition in Court regarding injuries on her body and timing of the crime would not have much consequence as the Court has to rely on what she had stated to other adults immediately after they came to know of the incident. 36 In a case of death of the wife caused by her husband, the evidence of their children could not be discarded in toto only because of being children as their presence in house, the place of occurrence, was natural but the Court should be cautious enough to see that an innocent is not punished solely by act ing upon the testimony of the child witnesses as they are easily susceptible for tutoring. 37 In a case the minor daughter of the deceased, the eye-witness of incident, connected her mother with her father's murder and described the role played by her. She also categorically stated that her deceased father named the accused as "offenders" in his dying declaration. It was held that her version was credible. 38 Where the child immediately after the occurrence gave the details of the incident and those facts were corroborated by the medical evidence, such evidence of the child could not be discarded. 39 Otherwise standing the test of cross-examination and her evidence being untutored and corroborated it could not be rejected solely on the ground that the words spoken by the sole child witness were not in the language which she knew. 40 The solitary minor eye-witness, the daughter of the deceased, had emphatically denied all the suggestions by the defence counsel about tutoring before recording her evidence. As per her evidence, her mother, the deceased, ran out of the room but was brought back by her father and thereafter strangulated by rope. Besides, nothing substantial could be brought out from her in the lengthy and piercing cross-examination. Though she made some improvements in evidence against other family members, her entire evidence would not be washed off. Conviction of the accused, her father, on the basis of her evidence was sustained. However, other members of the family were held to be entitled to be acquitted. 41 Merely because there is no compelling reason for a person to be present at the time of occurrence that by itself need not necessarily mean that his evidence has to be rejected. 42 Where the evidence of the child eye-witness was inconsistent with the medical evidence and that of the evidence of other witnesses, it was not relied upon. 43 The minor son of the deceased was at home at the time of occurrence and he categorically pointed out and named the accused as the person who had killed his mother and aunt with knife but in the cross-examination he could not stand the test of veracity. His statement clearly showed his being tutored by his father and the lawyer to name the accused. Conviction on the basis of the solitary statement of the child eye-witness was held to be improper. 44 Capital punishment.-- The Supreme Court, in Suresh v. State of U.P. , 45 observed : "Children, in the first place, mix up what they see with what they like to imagine to have seen and besides, a little tutoring is inevitable in their case in order to lend coherence and consistency to their disjointed thoughts which trend to stray. The extreme sentence cannot seek its main support from evidence of this kind which even if true, is not safe enough to act upon for putting out a life." Divorce proceeding.-- Where desertion by wife was found to be proved on the evidence of the child, their daughter, stating that her mother left her father's house voluntarily, the same was not relied upon as the child being only of seven years was not so mentally developed as to understand whether leaving the house by her mother was voluntary or not, particularly when she was not present in the house when her mother left the house and come to know about it when she returned from school and particularly also because her mother being a working lady had to detach herself from the family for official reasons and by that way the child naturally, being in father's company, might develop a predisposition of giving a version favourable to him. 46 65 State v. Dukhi Dei, ILR (1962) Cut 726; Ganduchi v. State of Orissa, 1985 Cr LJ 645; Narayan Kanu Datavale v. State of Maharashtra, 1997 Cr LJ 1788(Bom) . Precautions to be taken while recording statement of child witness, Sudesh Jhaku v. K.C.J., 1998 Cr LJ 2428 (para 38) (Del); State of Maharashtra v. Prabhu Barku Gade, 1995 Cr LJ 1432 (para 24) (Bom); Zafar v. State of U.P., 2000 Cr LJ 3786 (para 7) (All); State of Orissa v. Purna Chandra Kusal, 2008 CrLJ 4597, 4602-03 (para 10) (Ori); Promode Das v. State of Tripura, 2009 CrLJ 1, 12 (para 42). 66 Bhoj Raj v. Sitaram, AIR 1936 PC 60; Ranjha v. State, AIR 1951 HP 75; Avansiappa Goundan v. State of Kerala, 1960 Ker LT 435; Chandan v. Crown, AIR 1951 Punj 399.

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67 Panchhi v. State of U.P., AIR 1998 SC 2726 (para 11) : 1998 Cr LJ 4044. 68 Ramachandra v. Champabai, AIR 1965 SC 354. 69 (1966) 2 AWR 338. 70 Tehal Singh v. State of Punjab, AIR 1979 SC 1347 : 1979 Cr LJ 1031, relied in Sanjay Ramchandra Tarare v. State of Maharashtra, 1996 Cr LJ 713 (para 15) (Bom); State of M.P. v. Deoki Nandan, 1987 Cr LJ 1016(MP) . 71 Dalip Singh v. State of Punjab, AIR 1979 SC 1173. 72 Daya Singh v. State, (1969) 19 Raj 317. Evidence of victims younger brother aged 14 who gave a proper account of the incident witnessed by him was accepted; Prakash v. State of M.P., AIR 1993 SC 65. 73 1971 Al Cr R 137. See also Raj Mangal v. State, 1999 Cr LJ 2418 (para 17) (All); Sanjay Bag v. State of Orissa, 2004 CrLJ 4714, 4716 (para 5) (Ori) : 2004 (4) Crimes 285 : 2004 (29) Ori CR 189 : 2004 (2) Ori LR 360; Mamachan v. State of Kerala, 2008 CrLJ 257(NOC) (Ker) ; Rup Chand Mahto v. State of Bihar (now Jharkhand), 2008 CrLJ 800(NOC) (Jhar) ; Anandrao Khandu Zalke v. State of Maharashtra, 2008 CrLJ 1156(NOC) (Bom) : 2008 (4) AIR Bom R 497 (DB). 74 Shivaji Genu Mohite v. State of Maharashtra, AIR 1973 SC 55; Kabiraj Tudu v. State of Assam, 1994 Cr LJ 432 (para 10) (Gau). 75 State of Karnataka v. Maruthi, (1997) 11 SCC 473. See also stood test of lengthy and searching cross-examination, State of Maharashtra v. Raju Dadaba Borge, 2001 Cr LJ 3638 (paras 10 and 12) (Bom) and Nandeshwar v. State of Maharashtra, 2001 Cr LJ 4351 (paras 7 and 8) (Bom). Contra : R. Kulandavelu v. State, 1993 Cr LJ 2574 (para 20) (Mad). 76 Dhanraj v. State of Maharashtra, AIR 2002 SC 3302 (para 7 and 8) : (2002) 7 SCC 425. 77 Jasu v. State of Rajasthan, 1995 Cr LJ 1160 (paras 14 and 17) (Raj). 78 Prithvi v. Mam Raj, AIR 2004 SC 2729 (paras 9, 13 and 14) reversing 1996 CrLJ 1823(Raj) . 79 State of Maharashtra v. Damu Gopinath Shinde, 2000 Cr LJ 2301 (para 30) (SC) : AIR 2000 SC 1691, reversing 1999 (2) Mah LR 42(Bom) . 80 State of Maharashtra v. Damu Gopinath Shinde, 2000 Cr LJ 2301 (paras 31 and 32) (SC) : AIR 2000 SC 1691. 81 State of Maharashtra v. Bharat Fakira Dhiwar, AIR 2002 SC 16 (paras 20 and 23) : (2002) 1 SCC 622 : 2002 CrLJ 218, relying on Panchhi v. State of U.P., (1998) 7 SCC 177 : AIR 1998 SC 2726 : 1998 CrLJ 4044; Suryanarayana v. State of Karnataka, (2001) 9 SCC 129 : AIR 2001 SC 482 : 2001 CrLJ 705 and Baby Kandayanathil v. State of Kerala, 1993 Supp (3) SCC 667. 82 Nagappa v. The State of Karnataka, 2007 CrLJ 37(NOC) (Kar) : 2006 (5) AIR Kar R 703. See also Amarsingh Gond v. State of M.P., 2007 CrLJ 1560. 83 State of Bihar v. Kapil Singh, AIR 1969 SC 53; Gunduchi Patnaik v. State, 1985 Cr LJ 645. 84 Banwari Lal v. State of Rajasthan, 2002 CrLJ NOC 162(Raj) : (2001) 1 Raj Cr C 747 : 2002 (1) Cur Cr R 352 : 2002 (1) Raj LW 334 : 2002 (2) WLC 96. 85 C.P. Fernandes v. Union Territory, Goa, AIR 1977 SC 135. 86 Suresh v. State, AIR 1981 SC 1122. 87 Following Jalwanti Lodhin v. State, AIR 1953 Pat 246. 88 Pochammala Yellappa v. State of A.P., 1995 Cr LJ 3187 (paras 7, 8 and 9) (AP), relying on Chhagandame v. State of Gujarat, 1955 SC 182 and In re : Dake Abbayi , ILR 1956 AP 203(DB) . 89 Ouseph Varkey v. State of Kerala, AIR 1957 Ker 153. 90 Dasarathi Mahanto v. State of Orissa, (1961) 27 Cut LT 169. See also Ramkrishna v. The State of Maharashtra, 2006 CrLJ 357(NOC) (Bom) : 2006 (4) AIR Bom R 206 (DB).

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91 Bhagwan Singh v. State of M.P., AIR 2003 SC 1088 (paras 18 and 20) : (2003) 3 SCC 21 : 2003 CrLJ 1262. Serious infirmities in statements of sole child eye-witness, Jagjit Singh v. State of Punjab, (2005) 3 SCC 689, 699 (para 28). 92 State of Assam v. Mafizuddin, AIR 1983 SC 274. See also Tarachand v. State of Rajasthan, 2001 Cr LJ 3604 (paras 16-18) (Raj). 93 Jalwanti Lodhin v. State, AIR 1953 Pat 246. If it is found that he understands the question and given rational answers, he can be accepted as witness; State v. Vijairam, 1958 Cr LJ 270; Nafar Sheikh v. R., AIR 1914 Cal 276; Lakshan Singh v. State, AIR 1942 Pat 183; Mahomed Bachhu Miah v. State of Tripura, 1994 Cr LJ 197(Gau) . 94 Vijay Kumar v. State, (1981) 2 Del 449; Prem Shankar v. State, (1981) 1 Del 746(DB) ; Rajaram v. State, 1959 All LJ 736; State v. Shanker Prasad, AIR 1952 All 776. 1 In re : Kamya, AIR 1960 AP 490; Harumal v. State, AIR 1951 Ajmer 25. 2 Inder Singh v. State of Pepsu, AIR 1953 Pepsu 193. 3 Korangappa v. State of Kerala, (1967) 1 Ker 30; A.N.T.O. Thefa v. State, 1967 Manipur 11. 4 Brahmdeo Yadav v. State of Bihar, (1979) 58 Pat 637. 5 Mangoo v. State of M.P., AIR 1995 SC 959 (paras 5 and 6) : 1995 Cr LJ 1461. 6 Ratansinh Dalsukhbhai Nayak v. State of Gujarat, (2004) 1 SCC 64, 68 (para 8) : AIR 2004 SC 23 : 2004 CrLJ 19. 7 State of H.P. v. Prem Chand, AIR 2003 SC 708 (para 10) : (2002) 10 SCC 518 : 2003 CrLJ 872. 8 Mohan Singh Balwant Singh v. State, AIR 1965 Punj 291; Dharmpal v. State, AIR 1971 HP 17; Birisingh Majhi v. State of Assam, 1977 Cr LJ 1349(Gau) . 9 Ratansinh Dalsukhbhai Nayak v. State of Gujarat, AIR 2004 SC 23 (para 9) : (2004) 1 SCC 64 : 2004 CrLJ 19. 10 Uttam Singh v. State of M.P., 2003 CrLJ 560, 563 (para 15) (MP) : 2002 CrLR (SC&MP) MPJ 434. See also Nandu Nagasia v. State of Assam, 2004 CrLJ NOC 98(Gau) ; Dalbir Singh v. State of Haryana, 2003 CrLJ 1878, 1883 (para 17) (P&H) : 2003 (2) All CrLR 301 : 2003 (1) Rec Cr R 727; Jhunka Sao v. State of Bihar, 2002 CrLJ 4230 4233, (paras 15 & 16) (Jhar) : 2002 AIR Jhar HCR 1006 : 2002 (2) JLJR 219; State of M.P. v. Bhagwan Singh, 2002 CrLJ 3169, 3176 (para 33) (MP) : 2002 (3) MPHT 130 : 2002 (3) MPLJ 67; Lekho Sorin v. State of Bihar, 2004 CrLJ NOC 219(Jhar) : 2004 AIR Jhar HCR 1318 : 2004 (2) East Cr C 140; Bhura Lal v. State of Rajasthan, 2005 CrLJ NOC 281(Raj) (A); State of Jharkhand v. Rajiv Kumar Singh, 2007 CrLJ 82(NOC) (Jhar) : 2006 (3) AIR Jhar R 723. 11 Shreemen Nayak v. State of Bihar, 2002 CrLJ NOC 247(B) (Jhar) : 2002 AIR Jhar HCR 691 : 2002 (2) East Cr C 286 : 2002 (2) JLJR 449. 12 Indrajit Mallah v. State of U.P., 2006 CrLJ 53(NOC) (All) : 2005 All LJ 3808. 13 Nivrutti Pandurang Kokate v. State of Maharashtra, AIR 2008 SC 1460 (paras 7-10) : (2008) 12 SCC 565 relying on Wheeler v. United States, 40 LEd 244 : 159 US 523 (1895); Dattu Ramraso Sakhare v. State of Maharashtra, (1997) 5 SCC 341 : 1997 SCC 685(Cri) ; Ratansinh Dalsukhbhai Nayak v. State of Gujarat, (2004) 1 SCC 64 : 2004 SCC 7(Cri) . 14 Bikram Das Panik v. State of Assam, 2008 CrLJ 10(NOC) (Gau) . 15 State of Karnataka v. Shantappa Madivalappa Galapuji, AIR 2009 SC 2144, 2146 (para 6) : 2009 CrLJ 2442(SC) . 16 ILR 1984 Bom 2169. 17 Balkari v. State of Rajasthan, 1976 Cr LJ 828(Raj) ; Presence of child witness at place of occurence doubtful, her statement contradictory to dying declaration, her testimony not credit worthy, Vithal Mahadev Patil v. State, 1996 Cr LJ 1796 (para 7) (Kant). 18 1976 Raj Cr C 308. 19 Orsu Venkat Rao v. State of A.P., AIR 2004 SC 4961, (paras 5, 6, 8, 10 and 11), reversing Crl. A. No. 1685 of 2000 dated 27.2.03 (AP). 20 Dulaji Bhikaji Khant v. State of Gujarat, 2002 CrLJ 4827, 4833 (para 22) (Guj) : 2002 (3) Guj LH 777. 21 Prakash v. State, 2007 CrLJ 320(NOC) (Del) .

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22 (1985) 2 WLN 98 (Raj). 23 Dato v. State, (1954) Punj 825. 24 Srinivas Murthy v. State of Karnataka, 1977 (2) Kant LJ 341; Sukhram v. State of M.P., 1995 Cr LJ 595 (para 18) (MP). See also Bhagwan Singh v. State of M.P., AIR 2003 SC 1088 (para 19) : (2003) 3 SCC 21 : 2003 CrLJ 1262. 25 Ram Achal v. State of U.P., 1990 Cr LJ 111(All) . 26 Haria v. State of H.P., 1975 Cr LJ 78(HP) (DB); Pankaj Naik v. State of Orissa, 1994 Cr LJ 829 (para 7) (Ori); Chhagan Dame v. State of Gujarat, 1994 Cr LJ 56 (para 3) : AIR 1994 SC 454. 27 Sanjay v. State, 1996 Cr LJ 3347 (para 18) (Del). 28 Jogi Sahu v. State, 1970 Cr LJ 637(Ori) . 29 Krishnappa v. State of Karnataka, 1996 AIHC 1030 (paras 6 and 7) (Kant). 30 State of Karnataka v. Ningappa Bhimappa Uppar, 2000 Cr LJ 1757 (paras 2 and 4) (Kant). 31 A.N.T.O. Thaba v. State of Manipur, 1967 Cr LJ 1023 : AIR 1967 Manipur 11. 32 Ramu v. State of Rajasthan, 2006 CrLJ 4363, 4365 (para 16) (Raj). 33 Suresh Chand v. State of Haryana, 1976 Cr LJ 452(P&H) . 34 Bheru Lal v. State of Rajasthan, 2004 CrLJ 1677, 1680 (para 27) (Raj) : 2003 (3) Raj Cr C 1390 : 2004 (1) Raj LR 177 : 2004 (1) Raj LW 602 : 2004 (2) Rec Cr R 231 : 2004 (1) WLC 152. 35 Premlal alias Prem Narain v. State of M.P., 2005 CrLJ 1145, 1147 (paras 17 & 18) (MP). 36 State of Karnataka v. Revannaiah, 2005 CrLJ 2676, 2682 (para 17) (Kant) : 2005 (3) All CrLR 739. The Court relied on Bharwada Bhognibhai Hirjibhai v. State of Gujarat, AIR 1983 SC 753 : 1983 CrLJ 1096. 37 State v. Yenkappa, 2003 CrLJ 3558, 3560 (para 10) (Kant) : 2003 AIR Kant HCR 2045 : 2003 (4) All Cr R 362. 38 Kamala Sethi v. State, 1994 Cr LJ 197 (para 10) (Ori). 39 Kana Majhi v. State, 1985 Cr LJ 1876(Ori) . 40 Suryanarayana v. State of Karnataka, 2001 Cr LJ 705 (paras 9 and 10) (SC). 41 Purshottam Sharma v. State of M.P., 2007 CrLJ 460(NOC) (MP) . 42 State of Kerala v. Narayanan Bhaskaran, 1992 Cr LJ 238(Ker) ; Kuzhiyaramadujil Madhavan v. State, 1994 Cr LJ 450 (para 11) (Ker). 43 State of M.P. v. Surbhan, 1996 Cr LJ 3199 (para 8) (SC) : AIR 1996 SC 3345. 44 Dinesh Hori Lal v. State of Haryana, (2006 CrLJ 33(NOC) (P&H) : (2005) 3 Chand LR (Cri&Civ) 521. See also State of M.P. v. Chamru, 2007 CrLJ 3509, 3511 (para 10) : AIR 2007 SC 2400 : (2007) 12 SC 423. 45 AIR 1981 SC 1122 (para 11). See also State of H.P. v. Prem Chand, AIR 2003 SC 708 (paras 8 and 12) : (2002) 10 SCC 518 : 2003 CrLJ 872. 46 Ananta v. Ramchander, AIR 2009 Cal 167 (paras 2 and 30).

17. LEPER It is not proper not to produce an attesting witness who is to prove the contents of a document on the ground that he is a leper, as he could be examined on commission. 47 47 Ramkrishna Panda v. Arjuno Padhano, AIR 1963 Ori 29.

18. RUSTIC WITNESS

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Where the witnesses are rustics, their behaviour pattern and perceptive habits have to be judged as such. The too sophisticated approaches familiar in courts based on unreal assumptions about human conduct cannot obviously be applied to those given to the lethargic ways of villages. When scanning the evidence of the various witnesses the Court has to inform itself that variances on the fringes, discrepancies in details, contradictions in narrations and embellishments in inessential parts cannot militate against the veracity of the core of the testimony provided there is the impress of truth and conformity to probability in the substantial fabric of testimony delivered. The sluggish chronometric sense of the country-side community in India is notorious since time is hardly of the essence of their slow life; and even urban folk make mistakes about time when no particular reason to observe and remember the hour of minor event like taking a morning meal existed. Too much play on such slippery facts goes against realism so essential in a testimonial appraisal. 48 See also under Section 3. 48 Shivaji Shahebrao v. State of Maharashtra, AIR 1973 SC 2622.

19. POWER OF ATTORNEY HOLDER The power of attorney holder does not step into the shoes of the complainant when he comes to tender evidence on the disputed aspects. Merely because the principal has the personal knowledge, a power of attorney holder cannot tender evidence of facts exclusively within the knowledge of the principal. However, a power of attorney holder is competent to speak of facts exclusively within his knowledge. 49 The power of attorney holder cannot depose in respect of the matter regarding which the principal is entitled to be cross-examined. 50 Power of attorney holder is competent to depose in respect of all matters except, matters which are required to be done personally by the Principal. The statement of power of attorney holder can be read as statement of the party to lis . The order of eviction passed on the basis of the power of attorney holder testifying the bona fide need of the landlord was held to be not illegal. 51 The power of attorney holder is not entitled to appear as witness for the party so appointing him. can appear as a witness in his personal capacity and in the capacity of the party appointing him. has a right to state on oath, based on his knowledge of the case. 54

52 53

He He

A power of attorney holder is a competent witness and is entitled to appear as such and his statement shall be read in evidence 55 and his statements in Court cannot be ignored only because of the reason that he has appeared as power of attorney and the parties to suit do not choose to appear as a witness in the witness box. His evidence is to be evaluated as per his deposition. 56 The old age of the plaintiff having health problem is a good ground to allow her son, the power of attorney holder, to tender evidence on her behalf. 57 The evidence of the power of attorney holder, in an eviction suit, who happened to be the husband of the landlady cannot be rejected by the Court, as the agent deposes about the facts which are in his knowledge. If the information furnished by the agent, though not spoken by the principal is sufficient to establish the case, the same can be accepted by the Court and the evidentiary value of the agent cannot be brushed aside merely because the landlady has not been examined in the case. 58 Since the power of attorney holder is competent to give evidence with reference to the facts within his knowledge, whether the evidence of the power of attorney holder can be taken into consideration for giving a finding on the issues framed or not, can be decided only at the time of disposal of the case but not at the stage of recording his evidence. 59 49 Anirudhan v. Philip Jacob, 2006 CrLJ 3866, 3867 (paras 6 and 7) (Ker). See also Rajni Shukla v. Special Judge (E.C. Act), Banda,AIR 2008 (NOC) 474(All) . 50 Rajni Shukla v. Special Judge (E.C. Act), Banda,AIR 2008 (NOC) 474(All) . 51 Satnam Channan v. Darshan Singh, AIR 2007 (DOC) 216(P&H) : 2006 (2) RCJ 281. 52 Ram Prasad v. Hari Narain, AIR 1998 Raj 185 (para 8).

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53 Kanakapudi Bharthy v. Authority under A.P.S.E. Act-cum-Labour Officer, 2000 AIHC 87 (para 5) (AP). 54 Vamanrao Sawalaram Bhosale v. Vithal Tukaram Kadam, 2006 AIHC 143(NOC) (Bom) : 2006 (3) ABR (NOC) 388; relying on AIR 2005 SC 439. 55 Raees Ahmed v. Shrigopal Prakash, 2002 AIHC 2152, 2156 (para 16) (Raj). The Court relied on Kailashi Devi v. Matadeen Agarwal, AIR 2001 Raj 306. 56 Lilavatiben Eknath Rana v. Urmilaben Satyenkumar Zaveri, 2004 AIHC 390, 400 (para 22), (Guj). See also Bhimappa v. Allisab, AIR 2006 Kant 231, 235 (para 11). 57 Shanti Devi Agarwal v. V.H. Lulla, AIR 2004 MP 58, 63 (para 10) : 2003 (4) MPLJ 138 : 2003 (4) MPHT 57 : 2004 (1) Civ LJ 267 : 2004 (1) RCJ 37 : 2003 (2) Rent CR 546 : 2003 (2) Rent LR 593. 58 Vedpal v. Shakuntala, 2005 AIHC 2865, 2869 (para 36) (AP). The Court relied on Podelly Chinna Chinnamma v. Banderi Pedda Bhumanna, 2004 (1) Andh LD 241 (2). 59 Shaik Rafath Begum v. T.V.R. Anjaneyulu, AIR 2007 AP 23, 25 (para 5).

20. SCRIBE In Musunuri Anjaneyulu v. Koona Lakshmi, 60 it was held that endorsement on a pronote is not one of the documents which is required by the law to be attested or scribed. Hence, scribe need not be examined. There is no requirement in law that a scribe cannot be an attesting witness, hence he can testify.

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60 Musunuri Anjaneyulu v. Koona Lakshmi, AIR 1998 AP 214 (para 4). 61 Mathew Oommen v. Suseela Mathew, (2006) 1 SCC 519, 523 (para 8) : AIR 2006 SC 786.

21. PERSON OF EASY VIRTUE Evidence of a person of easy virtue is not to be thrown away.

62

See also under Section 3.

62 Shyam Sunder v. State, 1997 Cr LJ 35(Del) .

22. ADVOCATE A counsel who has advised the institution of a criminal case which led to a suit for malicious prosecution is a competent witness to prove good faith. 63 The Court shall be greatly circumspect while deciding to grant permission to summon the counsel of the opposite party as a witness. 64 63 Corea v. Pieris, 14 Cal WN 86(PC) . 64 N. Yovas v. Immanueal Jose, AIR 1996 Ker 1 (paras 8-11).

23. POLICE OFFICER--WITNESS It is not right to discard the evidence of a police officer (a prosecution witness) in the absence of evidence of his hostility to the accused. 65 See under Section 3. 65 Nathu Singh v. State of M.P., AIR 1973 SC 2783.

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24. MEDICAL OFFICER A medical officer to whom the deceased told that her mother-in-law had burnt her, is a competent witness and reliable though the doctor has not recorded the same in the medical register. 66 See also under Section 3. 66 Lichhamadevi v. State of Rajasthan, AIR 1988 SC 1785.

25. INTERESTED PERSON The fact that a witness is related to one of the parties cannot by itself be considered sufficient to warrant discarding his evidence in toto . The evidence of such witness should however be scrutinised carefully. 67 The credibility of a witness does not get affected merely because he is related to the deceased, or does not state the incident in the same language or manner which in the opinion of the Court is natural. 68 The fact that witnesses are partisan witnesses and are interested is by itself no ground for rejecting their testimony. 69 Mechanical rejection of the evidence of a close relation on the ground he is interested, is not warranted. 70 An eye-witness, closely related to the victim is not an incompetent witness. Though his evidence cannot be disregarded it must be closely scrutinised. 71 An interested witness means a person who wants to see the accused convicted because of his own animus . A relative may not be so interested. 72 Because a witness is an interested witness his evidence cannot be totally disregarded.

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The evidence of partisan witnesses, who were out to entrap the accused but were not willing and guilty participators in the crime, would not be tainted evidence, but it would be interested evidence which would require independent corroboration before acceptance. To convict an accused upon the uncorroborated evidence of such a person at whose instance a trap is laid by the police is neither illegal nor imprudent, but inadvisable. The panchas whom the police take with themselves before going for a raid are not members of the raiding party and therefore, their evidence does not require corroboration before acceptance. 74 Evidence of interested persons is not necessarily to be corroborated. A witness is normally to be considered independent unless such a witness has cause, such as enmity against the accused, to wish to implicate him falsely. 75 See also under Section 3. 67 Chottia v. State, ILR (1952) Raj 258. 68 Rokad Singh v. State of M.P., 1994 Cr LJ 494 (para 6) (MP), relying on State of U.P. v. Krishna Gopal, AIR 1988 SC 2154 : 1989 Cr C 288. 69 S.H. Kemkar v. State of Maharashtra, AIR 1974 SC 1153. Also see Sarat Chandra Panda v. State of Orissa, 1994 Cr LJ NOC 17(Ori) . 70 Brathi v. State of Punjab, AIR 1991 SC 318. 71 Arana Nagireddi v. State, (1968) 1 An WR 178. (Note : see other cases under Section 3). 72 Dalbir Kaur v. Punjab, AIR 1977 SC 472; Sarwan Singh v. State of Punjab, AIR 1976 SC 2304. 73 Bishwanath v. Sachhidanand, AIR 1971 SC 1949; Government of A.P. v. B. Jaggapuram Venkateswarlu, AIR 1980 SC 1876, a woman was the only witness to the murder of her husband and two sons; she had no previous hostility towards the accused, conviction upheld. 74 State v. Ramchand Tolaram, (1956) 58 Bom LR 90. 75 Kedar Behera v. State, 1993 Cr LJ 378 (para 6) (Ori). Evidence of injured eye-witness convincing and corroborated, couldn't be discarded merely because of being interested witness, Aidan v. State of Rajasthan, 1993 Cr LJ 2413 (para 10) (Raj).

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26. ADVERSARY AS WITNESS A party cannot be debarred from examining its adversary. The plaintiff cannot be debarred from examining the defendant as witness on his behalf. Such an order suffered from jurisdictional error and was liable to be interfered with in revision. 76 76 Awadh Kishore Singh v. Brij Bihari Singh, AIR 1993 Pat 122 (para 16), distinguishing CR No. 1525 of 1968, Dt. 3rd March, 1971.

27. EYE-WITNESS Where the eye-witnesses categorically stated that the accused was responsible for the fatal injury on the stomach of the deceased, there being no animosity between them and the accused and their presence at the place of occurrence being proved, rejection of their version was not proper. 77 See also under Section 3. 77 State of Maharashtra v. Rajendra Garbad Patil, 1994 Cr LJ 145 : AIR 1994 SC 475.

28. FALSUS IN UNO, FALSUS IN OMNIBUS Where a witness speaks to an entire event and in respect of a part of that version he has been disbelieved, it is not safe to accept the other part and convict an accused on that evidence. 78 The Supreme Court, however, has held that the maxim falsus in uno, falsus in omnibus (false in one thing, false in everything) is neither a sound rule of law nor a rule of practice, 79 for the reason that hardly one comes across a witness whose evidence does not contain a grain of untruth or, at any rate, exaggeration, embroidery or embellishment. 80 It is the duty of the Court to scrutinise the evidence carefully and separate the grain from the chaff. 81 See also under Section 3. 78 Jamal Mohammed v. State, ILR 1954 TC 1086. 79 Ugar Ahir v. State of Bihar, AIR 1965 SC 277. 80 Sohrab v. State of M.P., AIR 1972 SC 2020. 81 Ugar Ahir v. State of Bihar, AIR 1965 SC 277.

29. EXPLANATION--LUNATIC The explanation applies to the case of a monomaniac or person afflicted with partial insanity. Such a person will be an admissible witness if the Judge finds him upon investigation capable of understanding the subject in respect of which he is required to testify. 82 An insane or an idiot is not a competent witness if he is incapacitated to such an extent that he is unable to understand the subject in reference to which he is called as a witness. 82 Hill's case, (1851) 2 Den CC 254; Spittle v. Walton, (1851) LR 11 Eq 420.

30. INCOMPETENCY FROM DEFECTIVE INTELLECT A witness may be incompetent because he or she is prevented by mental illness, drunkenness and the like, from understanding the nature of the oath (where that is the test) or from understanding the questions asked and giving answers which can be understood. 83 But the incapacity is only co-

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extensive with the defect; thus, a mentally ill person is competent during a lucid interval, a drunkard upon his return to sobriety. 84 Where incapacity is merely temporary, the judge may, in his discretion, provided the application is made before the jury is sworn, postpone the trial until it is removed. 85 A person may still be a competent witness if that person's mental illness affects only one aspect of his or her character and does not diminish his or her capacity to recall information on the subject which is relevant to the proceedings or to appreciate the nature of an oath. 86 Where the main issue in a case is the sanity of a particular person it may be undesirable to make a separate attempt to assess that person's competence as a witness, and testimony has been received where the issue was the witness's own sanity. 87 (P HIPSON ON E VIDENCE , 15th Edn. (2000), page 151, para 8.10). 83 R. v. Lee, (1988) Crim LR 525 CA. See also Youth Justice and Criminal Evidence Act 1999, S. 53. 84 R. v. Hill, 2 Den 254; Spittle v. Walton , LR 11 Eq 420; R. v. Dunning, (1965) Crim LR 372. 85 R. v. Wade, 1 Moo CC 86; R. v. White, 1 Lea 430n. 86 R. v. Barratt, (1996) Crim LR 495 CA, where the witness's fixed belief paranoia caused her to have bizarre beliefs about her private life but did not render her incompetent to give evidence of finding fingerprints. 87 Hunter v. Edney, 10 PD 93.

31. TESTIMONIAL COMPULSION Testimonial compulsion is the very foundation of the Law of Evidence for without such compulsion every refusal to give evidence will render administration of justice impossible. It is not legal fetish. It is a necessary and also the general rule. 88 88 Kanakapudi Bharthi v. Authority under A.P.S.E. Act-cum-Labour Officer, 2000 AIHC 87 (para 5).

32. APPRECIATION OF EVIDENCE Where the mother of the child witness was done away with a heavy single blow of an axe (tikav ), it was held that the incident must have been over even before the nine year old child eye-witness could have thought of running away. 89 Where the child eye-witness gave different versions as regards the scene of occurrence; act ually he was examined 4-5 days after the occurrence but the investigation projected to have examined him on the very day of occurrence and in the F.I.R. child's grandfather did not mention the fact the child had told him that the accused had killed his father, in view of these doubtful features, it was held that the accused was entitled to be acquitted. 90 See under Section 3. 89 State of Maharashtra v. Prabhu Barku Gade, 1995 Cr LJ 1432 (para 22) (Bom). 90 Zafar v. State of U.P., AIR 2003 SC 931 (paras 9 to 14) : (2003) 3 SCC 51 : 2003 CrLJ 218, reversing 2000 CrLJ 3786 : 2000 All LJ 1583(All) .

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CHAPTER IX OF WITNESSES S. 119. Dumb witnesses. A witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, as by writing or by signs; but such writing must be written and the signs made in open Court. Evidence so given shall be deemed to be oral evidence. 1. PRINCIPLE AND SCOPE

This section deals with the evidence of dumb witnesses. When a deaf-mute is a witness the Court will ascertain before he is examined that he possesses the requisite amount of intelligence, and that he understands the nature of an oath. A deaf-mute's evidence may be taken (a ) by written questions to which he may reply in writing or (b ) by means of signs. A dumb witness either by writing or by signs can make intelligible of what he has to speak. If he is able to communicate his statement perfectly by writing, it is a more satisfactory method of taking evidence. 91 When the dumb witness is not able to write, then he can make sings showing what he wants to say. If it is by signs, those sings must be recorded and not the interpretation of those signs. Where the victim of the assault lost the power of speech, and in evidence he made signs and the trial court recorded the signs in respect of some questions but not of all questions for which only interpretations were recorded, it was held that recording interpretations of the signs is not a proper compliance with Section 119. 92 When a witness was not examined on the ground that he was unable to speak, it was held that, that such a ground was improper and the witness could have given evidence by writing, or signs and it could be reckoned as oral evidence. 93 It was held that that when a person was observing a vow of silence and was not able to speak on that ground, his evidence may be taken in writing without forcing him to break his religious vow and it must be taken that he is "unable to speak" within the meaning of this section. 94 Where the victim of attempt to murder became paralytic due to injuries and lost power of speaking but being an educated person he could answer questions put to him in writing, it was held that in recording his evidence, assistance of an expert was not required and his evidence could be and was properly recorded as per procedure prescribed under Section 119 of the Evidence Act regarding a dumb witness. 95 Examination of a deaf and dumb witness without the assistance of an expert or person familiar with his mode of conveying ideas to others in day to day life, is wrong and cannot be relied on. 96 When the services of an interpreter are required by any criminal court for the interpretation of any evidence or statement of a dumb person, the interpreter shall be bound to state the true interpretation of such evidence or statement under Section 119. 97 Where the prosecutrix, the victim of rape was dumb, evidence of the Principal, Govt. Residential School for Deaf as her interpreter is an expert evidence and her testimony with the help of such interpreter can be relied upon. 98 Doubts have been expressed as to whether the aid of an interpreter can be sought as no mention is made in this section of an interpreter. It is however submitted that as the purpose of signs is to make out what the witness has to say, the court is entitled to seek the aid of an interpreter to understand the witness.

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When it is impossible to make the deaf and dumb person understand the questions put to him in cross-examination he is not a competent witness under the section. 1 Deaf and dumb persons, unable by writing or signs to communicate their answers and to understand questions put to them are not competent witnesses. In a case of deaf and dumb witness, the interpreter as well as the witness both have to be administered oath before recording the evidence of a dumb witness and the Court while recording the evidence of such a witness must record both signs as well as the interpretation of the interpreter for making the evidence of such a witness to be admissible under this section. 2 The evidence of the sole eye-witness of the wife of the deceased who was deaf and dumb was recorded by signs with the help of her father who had taken an act ive part during the investigation of the case without administering oath. It was held to be inadmissible. The High Court observed that the trial Court could have taken her evidence in writing or otherwise with the help of an expert. 3 91 Morrison v. Lennard, (1827) 3 S&P 127. 92 Kumbhar Musa Alib v. State of Gujarat, AIR 1966 Guj 101; see also R. v. Abdulla, (1885) 7 All 385(FB) (signs made by a dying woman were admitted as statement) 93 Asit Nath Das v. Snehalata Devi, (1969) 73 Cal WN 820. Contra : no adverse inference can be drawn against prosecution by non-examination, Kishan Singh v. State, 1995 Cr LJ 2027 (para 17) (Raj). 94 Lakhan Singh v. R., (1941) 20 Pat 898 : AIR 1942 Pat 183. 95 Rajesh Kumar v. State of H.P., 2007 CrLJ 3029, 3034-35 (paras 31-32) (HP). 96 Kadungoth Alavi v. State of Kerala, 1982 Cr LJ 94(Ker) . 97 Abdul Rahman Kunju v. Misariya Beevi, 1979 Ker LT 123. 98 Public Prosecutor, A.P. High Court v. Lingisetty Sreenu, 1997 Cr LJ 4003(AP) . 1 Yenkattan v. Emperor, 1912 MWN 100. 2 D.A. Jakati v. State of Karnataka, 2005 CrLJ 2687, 2690 (para 7) (Kant). 3 Darshan Singh v. The State of Rajasthan, 2006 CrLJ 3008, 3012-13 (para 14).

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CHAPTER IX OF WITNESSES S. 120. Parties to civil suit, and their wives or husbands. Husband or wife of person under criminal trial. In all civil proceedings the parties to the suit, and the husband or wife of any party to the suit, shall be competent witnesses. In criminal proceedings against any person, the husband or wife of such person, respectively, shall be a competent witness. 1. PRINCIPLE AND SCOPE

Under this section, in civil proceedings the parties and the husband or wife of any party to the suit are regarded as competent witnesses. The section also deals with criminal proceedings, wherein the husband or wife of the accused shall be a competent witness. Parties in civil proceedings are competent witnesses and therefore their testimony is to be scrutinised in the same manner as that of any other witness. There is no inflexible rule that if a party gives his testimony he must be disbelieved because he is a party to the suit. 4 In a suit for specific performance of an agreement of sale, the purchaser wife pleaded to have no knowledge of the previous agreement of sale but did not enter the witness-box. Her husband, being a competent witness, entered the witness-box and gave necessary evidence instead of his wife. It was held that non-examination of the wife would be of no consequence. 5 Parties to the suit are not only competent witnesses but are witnesses whose duty is to assist the court. Where a party whose evidence is material does not give evidence the court should presume against him. 4 Bhanwar Lal Yaid v. Bhanwar Lal Agarwal, ILR (1951) Raj 1. 5 K. Saroja v. Yalliammal Ammal, 1997 AIHC 1959 (para 29) (Mad). See also Yedpal v. Shakuntala, 2005 AIHC 2665, 2668 (para 32) (AP).

2. ACCUSED In criminal cases an accused is not a competent witness. However he can be examined under Section 342(4)of old Cr.P.C. (nowSection 313). In proceedings against a person under Section 107, under Chapter X to XII, Chapter XXVI or under Section 552of old Cr.P.C., nowSection 98 such person is a competent witness. In English Law an accused person of his/her, wife/husband is not a competent witness. The section deviates from the rule of English Law namely that husband and wife are not competent to give evidence for or against each other. So far as the wife and husband are concerned there is a restriction contained in Section 122 of this Act which says that no person who is or has been married shall be compelled to disclose any communications made during the subsistence of marriage to each other. Even there an exception is made relating to suits between married persons or proceedings in

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which one married person is prosecuted for any crime committed against the other. This section is subject to Section 122. (See commentary on Section 122). Even at English Common Law, however, an exception was always made, from necessity, in cases of personal violence or forcible marriage, and perhaps also from public policy, in cases of treason. By statute also this general incompetence has been gradually removed, in both civil and criminal cases 6 (P HIPSON ON E VIDENCE , 15th Edn. (2000), Para 8-05, page 150). Section 118 makes all persons competent witnesses which includes wife and husband. They are competent to prove non-access. 7 See for further discussion cases under Section 112. In divorce proceedings the English Rule was that neither the husband nor the wife can be examined for purpose of proving non-access during the marriage. 8 It was followed in India in Sweeney v. Sweeney . 9 It may be noted that by Matrimonial Causes Act, 1949, it was made possible for the parents to give evidence about access or non-access during the subsistence of marriage. (P HIPSON 13th Edn., page 291, para 15.02) Now see Matrimonial Causes Act, 1965, S. 43. The old privilege relating to the question of adultery in divorce cases has been abolished by the Civil Evidence Act, 1968, S. 16(5), and this section governs testimony, discovery and interrogatories. 10 In application for divorce on the ground of impotency under the Hindu Marriage Act , the parties are allowed to give evidence.11 In a petition for nullity of marriage by a wife on the ground of husband's incapacity, where the wife waited for seven years since her marriage before filing the petition and the husband did not contest the allegation, the wife's evidence was accepted without corroboration. 12 In a husband's petition for dissolution of marriage on the ground of wife's adultery and desertion, when both the respondents remained ex parte , it was held that petitioner's evidence without any corroboration was sufficient for granting relief. 13 Truthfulness of the statement of the wife, the eyewitness, could not be disbelieved simply because of her emotional reaction while witnessing the murder of her husband was different from what it should have been, in the opinion of the Court. 14 Proceedings under old Section 488Cr.P.C. old (Section 125 new) are in the nature of civil proceedings within the meaning of this section and the person who is sought to be charged for maintenance is a competent witness on his own behalf. 15 6 For civil cases see, 21 Jac. 1, c. 19, S. 6; the Country Courts Act, 1846, S. 83; Evidence Amendment Act, 1853, S. 1; the Evidence Further Amendment Act, 1869, S. 3; and the Law Reform (Miscellaneous Provisions) Act, 1949, S. 7; Matrimonial Cases Act, 1973, S. 48. For criminal cases see, Criminal Evidence Act, 1898; Sexual Offences Act, 1956, S. 39; Theft Act, 1968, S. 30; Police and Criminal Evidence Act, 1984, S. 80; Youth Justice and Criminal Evidence Act, 1999, S. 53 and Sched. 4 (para 13). 7 Howe v. Howe, 38 Mad 466(FB) ; Mayandi Asari v. Sami Asari, ILR 55 Mad 292 : AIR 1932 Mad 44; Vira Reddy v. Kistamma, AIR 1969 Mad 235; Shantabai v. Dalchand, AIR 1953 Nag 374; Venkateswarlu v. Venkatanarayana, AIR 1954 SC 176; Shyam Sing v. Sai Balini Ghose, AIR 1947 Cal 183; Bai Kamla v. Babubhai, AIR 1926 Bom 385; G.R. Sane v. D.S. Sanavane & Co., AIR 1946 Bom 110; Hanumantha Rao v. Ramachandrayya, AIR 1944 Mad 376. 8 Russel v. Russel, 1924 AC 687. 9 ILR 62 Cal 1080; Premchand Hira v. Bai Galal, AIR 1927 Bom 594. 10 Nast v. Nast and Walker, (1972) Fam 142(CA) . 11 T. Rangaswami v. T. Aravindammal, AIR 1957 Mad 243. 12 Suvarna bahen v. Rashmi Kant, AIR 1970 Guj 43. 13 Antoniswamy v. Anna Manickam, AIR 1970 Mad 91. 14 Aidan v. State of Rajasthan, 1993 Cr LJ 2413 (para 16) (Raj). 15 Tokebibee v. Abdool Khan, ILR 5 Cal 536; Nur Mohammed v. Bismulla Jan, ILR 16 Cal 781; Hiralal v. Saheb Jan, ILR 18 All 107; Rozario v. Ingles, (1894) 18 Bom 468.

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CHAPTER IX OF WITNESSES S. 121. Judges and Magistrates. No Judge or Magistrate shall, except upon the special order of some Court to which he is subordinate, be compelled to answer any questions as to his own conduct in Court as such Judge or Magistrate, or as to anything which came to his knowledge in Court as such Judge or Magistrate; but he may be examined as to other matters which occurred in his presence whilst he was so acting. ILLUSTRATIONS 14a)   A , on his trial before the Court of Session, says that a deposition was improperly taken by B , the Magistrate. B cannot be compelled to answer questions as to this, except upon the special order of a superior Court. 15b)   A is accused before the Court of Session of having given false evidence before B , a Magistrate. B cannot be asked what A said, except upon the special order of the superior Court. 6c)   A is accused before the Court of Session of attempting to murder a policeofficer whilst on his trial before B , a Sessions Judge. B may be examined as to what occurred. 1. PRINCIPLE AND SCOPE

Under this section a Judge or Magistrate shall not be compelled to answer questions as to (a ) his conduct in Court as such Judge or Magistrate, or (b ) anything which came to his knowledge in Court as such Judge or Magistrate, except upon the order of a Court to which he is subordinate. He may be examined as to other matters which occurred in his presence while he was so acting. Sections 121- 132 declare exceptions to the general rules that a witness is bound to tell the whole truth, and to produce any document in his possession or power relevant to the matter in issue. 16 They deal with the privilege of certain classes of witnesses. The privilege given by this section is the privilege of the witness, that is, of the Judge or Magistrate of whom the question is asked. If he waives such privilege, or does not object to answer such question, it does not lie in the mouth of any other person to assert the privilege. 17 The privilege of the Judge or the Magistrate, extends only "to his own conduct in Court as such Judge or Magistrate, or as to anything which came to his knowledge in Court as such Judge or Magistrate". A distinction should be drawn between questions which a witness cannot be compelled to answer (Sections 121, 124 and 125) and those which he cannot be permitted to answer (Sections 123 and 126). The latter class of questions might properly be forbidden but questions of the former class are in no way barred; a witness has merely the right of refusing to answer such questions, without any hostile inference being drawn from his refusal. The most that a Court can do, in the case of a witness

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who is ignorant of his privilege, is to warn him that he need not answer. But if the witness elects to waive his privilege of refusing to answer, his answer is admissible in evidence. 18 16 Queen v. Gopal Doss, (1881) 3 Mad 271, 277 (FB). 17 Empress of India v. Chidda Khan, (1881) 3 All 573(FB) . 18 Mahomed Aly v. Emperor, (1909) 12 Cr LJ 277.

2. JUDGES AND MAGISTRATES AS WITNESS Judges and Magistrate are competent witnesses R. v. Chidda Khan, 19 but they cannot be compelled to answer any question as to their conduct in court as such Judges or Magistrates (Best Art. 181). As a matter of public policy Judges enjoy these and other privileges. A judge is as competent and compellable a witness as any other person in regard to a matter which he comes to know otherwise than in his capacity as a judge. "Although, however, judges and juries may, in arriving at decisions, use their general information and that knowledge of the common affairs of life which men of ordinary intelligence possess, 20 they may not, as might juries formerly, act on their own private knowledge or belief regarding the facts of the particular case. 21 However there is another line of cases which shows that a judge may rely on his own local knowledge where he does so "properly and within reasonable limits". 22 This judicial function appears to be acceptable where "the type of knowledge is of a quite general character and is not liable to be varied by specific individual characteristics of the individual case". 23 This test appears to allow a judge to use what might be called "Special (or local) general knowledge," and its application presents inferior and appellate courts with a task of some nicety. 24 It has been held that justices acted properly in using their knowledge of local tidal conditions. 25 " (P HIPSON ON E VIDENCE 15th Edn. (2000), paras 208, 2-09, pages 33, 34). A judge may waive his privilege and choose not to object to answer any question in which case it is not open to any other person to assert that privilege. 26 "A Judge, before whom the cause is tried, must conceal any fact within his own knowledge, unless he be first sworn, and, consequently, if he be the sole Judge, it seems that he cannot depose as a witness, though if he be sitting with others, he may then be sworn and give evidence. In this last case, the proper course appears to be that the Judge, who has thus become a witness, should leave the bench, and take no further judicial part in the trial, because he can hardly be deemed capable of impartially deciding on the admissibility of his own testimony, or of weighing it against that of another." 27

A person having to exercise judicial functions may give evidence in a case pending before him when such evidence can and must be submitted to the independent judgment of other persons exercising similar judicial functions sitting with him at the same time. 28 Where a Judge is the sole Judge of law and fact, he cannot give evidence before himself or import matters into his judgment not stated on oath before the Court in the presence of the accused. 29 The accused is entitled to have nothing stated against him in the judgment which was not stated on oath in his presence, and which he had no opportunity of testing by cross-examination and rebutting. 30 If the Judge knew any facts concerning the case, he is bound to state to the accused, so far as he could, what were the facts he himself observed, and to which he himself could bear testimony, and the accused in such situation has a right, if he thought it desirable, to cross- examine the Judge, whose evidence should be recorded, and form part of the record in the case. 31 A Judge would not be justified to act on his own knowledge and belief or on public rumours. 32 A Magistrate should not decide a case relying on statement made to him out of court. 33 Without giving evidence as a witness a Judge or Magistrate cannot import his own knowledge into a case. 34 When a

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Judge has any interest in the subject-matter or takes any part in the prosecution case he is disqualified from trying that case. 35 It was held that inaccuracy on the part of a Magistrate in making notes of injuries on the person of the complainant is not a ground to call for answers and not a ground for transfer of the case. 36 19 (1881) 3 All 573(FB) . 20 Peart v. Blockow, Vaughan & Co., (1925) 1 KB 399; see also Byrne v. Londonderry Co., (1902) 2 IR 457; approved in Hennessy v. Keating, (1908) 1 IR 43, 83; R. v. Jones , (1970) 54 Cr. App. R. 63, 68. 21 R. v. Sutton, (1816) 4 M&S 532; Palmer v. Crone, (1927) 1 KB 804; R. v. Antrim J.J., (1895) 2 IR 603, 649. But see R. v. Blick, (1966) 50 Cr App R 280, where a juror passed a note to the judge informing him of the juror's knowledge of a particular locality which was at variance with the defendant's testimony, whereupon rebutting evidence was called by the prosecution. 22 Reynolds v. Llanelly Associated Tinplate Co., (1948) 1 All ER 140, (per L ORD G REENE , M.R.). 23 Ibid. 24 See Keane v. Mount Vernson Colliery Co., (1933) AC 309, esp. at 317; Owens v. Llay Marri Collieries Ltd., (1932) 25 BWCC 573; Roberts & Ruthven Ltd. v. Hall, (1912) 106 LT 769; Mothersdale v. Cleveland Bridge & Engineering Co., (1930) 142 LT 541. 25 Ingram v. Percival, (1969) 1 QB 548. See also Borthwick v. Vickers, (1973) RTR 394(DC) . 26 R. v. Cludarshan, 3A 573 (FB). 27 T AYLOR , 12th Edn. 1379, p. 870. 28 Queen v. Mookta Singh, (1870) 13 WR 60(Cr) . 29 Queen-Empress v. Manikam, (1896) 19 Mad 263; Empress v. Donnelly, (1877) 2 Cal 405. 30 Girish Chunder Ghose v. Queen-Empress, (1893) 20 Cal 857, 866; Hari Kishore Mitra v. Abdul Baki Miah, (1894) 21 Cal 920. 31 Hurro Chunder Paul, In re : (1873) 20 WR 76(Cr) . 32 Meethum Bibee v. Busheer Khan, (1867) 11 MIA 213; Satrughan v. R., 50 IC 357. 33 Sri Balusu v. Sri Balusu, (1898) 22 Mad 427; R. v. Sahadev, (1890) 14 Bom 572. 34 Kishore Singh v. Ganesh Mookerjee, 9 WR 252; Haropd v. Sheo Dayal, 26 WR 55; Girish Chunder v. R., ILR 20 Cal 857. 35 R. v. Pheroz Sha Pestonji, ILR 18 Bom 442; Aloo Nathu v. Gayusha Dipsangji, (1894) 19 Bom 608; Loburi Domini v. Assam Railway Co., 10 Cal 915. (See also Section 479Cr PC of 1973). 36 D.J. Yaghela v. Kantibai, 1985 Cr LJ 974(Guj) .

3. JUROR The Calcutta High Court held that jurors are not to be examined as to the grounds on which they have based their verdict. 37 37 Emperor v. Derajtulla Sheikh, AIR 1930 Cal 443.

4. ARBITRATOR The term Judge or Magistrate is not defined in this Act. Though, Section 3 defines court, it excludes arbitrators. Therefore, the arbitrators would not be within the rule of this section to claim privilege. Normally, the arbitrator would not be summoned to give evidence to show how he arrived at the

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conclusions in a matter. 38 But when mala fides are attributed and if it is found that there is some prima facie case, the court may summon the arbitrator. 39 An arbitrator who is selected by the parties would come within the general obligation of being bound to give evidence. The Privy Council observed, 40 "An arbitrator, selected by the parties, comes within the general obligation being bound to give evidence, and where a charge of dishonesty or partiality is made, any relevant evidence which he can give is without doubt properly admissible. It is, however, necessary to take care that evidence admitted as relevant on a charge of dishonesty or partiality is not used for a different purpose; namely, to scrutinize the decision of the arbitrator on matters within his jurisdiction, and on which his decision is final. When a petition was filed to amend a decree passed on the basis of an award given by an arbitrator, on the ground of certain clerical mistakes in the proceedings of the arbitrator; it was held that it is open to the court to examine the arbitrator to find out whether any slip or omission had entered in the proceedings. 41 38 M.C. Yerghese v. T.J. Poonan, AIR 1970 SC 1876. 39 Union of India v. Orient Engineering & Co., (1978) 1 SCR 632 : AIR 1977 SC 2445; approving Khublal v. Bishambhar Sahai, AIR 1925 All 103. 40 Amir Begum v. Badr-u-ddin, 36 All 336 : AIR 1919 PC 105. 41 Narayanan Nair v. Devaki Amma, AIR 1945 Mad 230.

5. POWER OF APPELLATE COURT Section 121 of the Evidence Act empowers the appellate court to question the trial court on matters relating to the proceedings before him and the answers to such questions should certainly be taken into account while deciding the appeal. 42 42 Banke Biharilal v. Mahadeo Prasad, AIR 1953 All 97.

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Ratanlal & Dhirajlal: Law of Evidence, Updated 23rd Edition/THE INDIAN EVIDENCE ACT (ACT 1 OF 1872)/PART III PRODUCTION AND EFFECT OF EVIDENCE/CHAPTER IX OF WITNESSES/S. 122.

CHAPTER IX OF WITNESSES S. 122. Communications during marriage. No person who is or has been married shall be compelled to disclose any communication made to him during marriage by any person to whom he is or has been married; nor shall he be permitted to disclose any such communication, unless the person who made it, or his representative in interest, consents, except in suits between married persons, or proceedings in which one married person is prosecuted for any crime committed against the other. 1. PRINCIPLE AND SCOPE

Section 120 enables the wife or husband to be a competent witness in civil as well as in criminal proceedings. But this section deals with the privilege affecting compellability from disclosure of all communications between wife and husband during the subsistence of a marriage, except in some cases between them for example proving non-access. This section "rests on the obvious ground that the admission of such testimony would have a powerful tendency to disturb the peace of families to promote domestic broils, and to weaken, if not to destroy, that feeling of mutual confidence which is the most endearing solace of married life. The protection is not confined to cases where the communication sought to be given in evidence is of a strictly confidential character, but the seal of the law is placed upon all communications of whatever nature which pass between husband and wife. It extends also to cases in which the interests of strangers are solely involved, as well as to those in which the husband or wife is party on the record. It is, however, limited of such matters as have been communicated 'during the marriage'. 43 This section limits the rule enunciated in S. 120. Under this section a married person shall not be: 28)   compelled to disclose any communication made to him during marriage by any person to whom he is married; and 26)   permitted to disclose any such communication, except 3. when the person who made it or his representative in interest consents or 3. in suits between married persons, or 1. in proceedings in which one married person is prosecuted for any crime committed against the other. S TEPHEN in his D IGEST (Art. 110) states "The protection afforded by this section is greater than that conferred by the English Law, because in India, the witness is not permitted to disclose communications, so that the person making it, as well as the witness to whom it is made, is protected. But in England only the witness is protected." The prohibition under this section rests on no technicality that can be waived at will, but is founded on a principle of high import which no court is entitled to relax. 44

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The first part of the section deals with a case where the witness does not wish to disclose the communication. In such a case the witness shall not be compelled to disclose it. The second part deals with a case where the witness is willing to disclose the communication. Even then the witness shall not be permitted to do so without the consent of the husband or wife of the witness. The provisions of this section do not apply to communications to a mistress.

45

The right of privacy under this section extends not only to matrimonial home but also to the litigation regarding dissolution of marriage. A third party who has nothing to do with the relationship of the spouses, cannot be permitted to intrude into their privacy. 46 43 T AYLOR , 12th Edn., 909 AP 572; Emperor v. Ram Chandra, (1932) 35 Bom LR 174; Fateh Singh v. State, 1995 Cr LJ 88 (paras 6 and 7) (All). 44 Nawab Howladar v. Emperor, (1913) 40 Cal 891. 45 Shankar v. State of T.N., 1994 Cr LJ 3071 (paras 27 and 35) (SC). 46 Baldev Singh v. Surender Mohan Sharma, (2003) 1 SCC 34 (para 14) : AIR 2003 SC 225.

2. 'SHALL NOT BE PERMITTED' Even if one of the spouses is willing to disclose a communication, he or she will not be permitted to disclose it unless the person who made it or his representative in interest consents, except in suits or prosecutions between married persons. The consent cannot be implied. It is incumbent upon the Court to ask the party against whom the evidence is to be given. The Supreme Court in M.C. Verghese v. T.J. Ponnen 47 reversing the decision in T.J. Ponnen v. M.C. Verghese 48 held that the communication between the spouses during the marriage cannot be disclosed or deposed to by the spouse without the consent of the other who made the communication. 47 (1970) 2 SCJ 353 : AIR 1970 SC 1876. See also Nagaraj v. State of Karnataka, 1996 Cr LJ 2901 (para 25) (Kant). 48 AIR 1967 Ker 228.

3. 'DURING MARRIAGE' The protection conferred by the section is limited to such matters as have been communicated during marriage. A communication made to a woman before marriage would not be protected. But the privilege continues even after the marriage has been dissolved by death or divorce. The bar to the admissibility in evidence of communications made during marriage attaches at the time when the communication is made, and its admissibility will be adjudged in the light of the status at that date and not the status at the date when evidence is sought to be given in Court. 49 When a communication was between the accused and his wife after the wife obtained a divorce decree, it was held that the marriage cannot be treated as subsisting after the divorce decree and hence the communication was not made during marriage so as to come within the protection under Section 122. 50 49 M.C. Verghese v. T.J. Ponnan, AIR 1970 SC 1876. 50 S.J. Choudhary v. State, 1985 Cr LJ 622(Del) .

4. 'REPRESENTATIVE IN INTEREST' A communication may be disclosed with the consent of the husband or wife or his/her representative in interest.

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Where there is no "representative in interest" who can consent, under this section, to the disclosure of communications made by a deceased husband to his wife during marriage, the wife should not be permitted, even if willing, to disclose such communications. The widow of a deceased husband is not his "representative in interest," for the purpose of giving such consent. 51 51 Nawab Howladar v. Emperor, (1913) 40 Cal 891.

5. COMMUNICATION The ban of the section is confined to communications only. A wife can testify to the deeds of her husband of which she was the eye-witness. 52 This is so because Section 120 declares her to be a competent witness against her husband. This approach obviates the difficulties experienced by English law in this respect. The accused was charged with two counts of assault occasioning actual bodily harm on his 8 months' old daughter. On both the occasions the baby suffered multiple injuries to her face and head. The wife implicated her husband. It was not disputed that the accused was left at home with the baby and that the baby suffered injuries. The accused tried to lay the blame upon the 221/2 years old brother of the baby but that was found to be factually false. Even so the Court held that the wife was not a compellable witness. She could choose to save her marriage by refusing to testify. 53 A wife was not allowed to tell what her husband told her about a murder with which he was charged.

54

The Supreme Court observed "The statements of the accused to his wife that he would give her jewels and he had gone to the house of the deceased to get them are inadmissible under Section 122. But the wife's statement that the accused was seen in the early hours, while it was dark, coming down the roof of his house and that he went to the Bhusa Kothri and came out again and had a bath and put on the dhoti again is not inadmissible under Section 122 as it has reference to acts and conducts of the accused and not to any communication by him to his wife." 55 A document, even though it contains a communication from a husband to a wife or vice versa , in the hands of third persons, is admissible in evidence; for, in producing it there is no compulsion on or permission to the wife or husband to disclose any communication. The section protects the individuals, and not the communications if it can be proved without putting into the box for that purpose the husband or the wife to whom the communication was made. 56 A communication can be proved in any other way without putting the husband and the wife into the witness box. 57 In a case before the House of Lords the appellant a member of the crew of a ship gave a sealed cover addressed to his wife to another member of the crew, asking him to post that cover outside an English port. The member to whom it was given, handed over the cover to the captain of the ship, who opened it at the request of the police. It appeared that the contents of the letter were tantamount to a confession of a murder by the appellant. It was held that the letter was admissible in evidence; that unless the spouse is a witness and claims privilege, it is admissible and a witness other than the spouse can give evidence in respect of that communication. 58 V ISCOUNT R EDCLIFFE in a judgement dissenting from the majority view held that the legal policy of marriage in relation to the law of evidence was the general one to ensure conjugal confidence, that the courts concerned was that no marriage relation, while it subsisted should be infected by the fear or suspicion, that things said only by reason of the special confidence might later become the material of legal evidence affecting the speaker. That principle is wider than that of excluding witnesses on the ground of interest in the subject-matter of the suit. In a later case in Duchess of Argyll v. Duke of Argyll 59 approving the dissenting judgment of V ISCOUNT R EDCLIFFE , it was held that the confidential communications between husband and wife during coverture were within the scope of the court's protection against the breach of confidence. Subsequent to the case of Duchess of Argyll v. Duke of A, Section 43(1) Matrimonial Causes Act of 1965, was repealed by Section 16(4), Civil Evidence Act of 1968, making it possible in England for a husband or wife to give evidence of marital intercourse. Even in civil cases as per Section 16(3) of the Civil Evidence Act of 1968 there is no privilege in England.

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Letters written by husband to wife were held to be provable otherwise than through wife. 60 On a trial for the offence of breach of trust by a public servant, a letter was tendered in evidence for the prosecution which had been sent by the accused to his wife at Pondicherry and had been found on a search of her house made there by the police; it was held that the letter was admissible in evidence against the accused. 61 The communication between husband and wife is not protected if it can be proved without their assistance and by letting evidence of overhearers for e.g., extra-judicial confession which was overheard by others. 62 52 Ram Bharose v. State of U.P., AIR 1954 SC 704. 53 R. v. Ritt, (1982) 3 All ER 63, noted All ER Annual Rev 1982 at 138 a direct consequence of the rulings in Leach v. R., (1912) AC 305 and R. v. Hoskyn, (1978) 2 All ER 136 to the effect that even when she is competent she is not compellable. 54 Ram Chandra v. Emperor, AIR 1933 Bom 153 : 1985 Raj LR 1018. 55 Ram Bharose v. State of U.P., AIR 1954 SC 704. 56 Queen-Empress v. Donaghue, (1898) 22 Mad 1. 57 M.C. Yerghese v. T.J. Ponnan, AIR 1970 SC 1876 : (1970) 2 SCJ 353. 58 Rumping v. D.P.P., (1962) 3 All ER 256(HL) . 59 (1965) 1 All ER 611. 60 A. Manibhushana Rao v. A. Surya Rantam, AIR 1981 AP 58. 61 Queen-Empress v. Donaghue, (1898) 22 Mad 1, 4. 62 Appu v. State, AIR 1971 Mad 194.

6. EXCEPT IN SUITS.... AGAINST THE OTHERS Under this section a person is permitted to disclose the communication in suits between married persons or in proceedings in which one married person is prosecuted for any crime committed against the other. Marital communications can be proved by evidence of the over-hearers. presence of others were allowed to be proved by others. 64

63

Confession to wife in the

Regarding privilege in divorce proceedings see commentary under Section 120. 63 Appu v. State, AIR 1971 Mad 194. 64 Ibid .

7. CRIME COMMITTED AGAINST ANOTHER The words "proceeding in which one married person is prosecuted for crime committed against the other" in Section 122 refer to such crimes as assault or bodily injuries, wrongful confinement, etc., by one of the spouses against the other; there may be also other forms of crime but the gist of this exception is that it must be the crime committed by one married person against the other; the question whether an unlicensed pistol was in the possession of the husband or the wife cannot be said to involve any crime committed by one against the other; but the wife cannot be compelled to disclose what she was told by her husband (accused) in her conversation with him. 65 An offence against a son is not an offence against the husband and a confession by a woman to her husband that she murdered the son is not admissible. 66

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A prosecution for bigamy/adultery would be a crime committed against the husband or wife as the case may be. 65 Norendra Nath v. State, AIR 1951 Cal 140. 66 Fatima v. Emperor, (1950) 15 Cr LJ 613.

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Ratanlal & Dhirajlal: Law of Evidence, Updated 23rd Edition/THE INDIAN EVIDENCE ACT (ACT 1 OF 1872)/PART III PRODUCTION AND EFFECT OF EVIDENCE/CHAPTER IX OF WITNESSES/S. 123.

CHAPTER IX OF WITNESSES S. 123. Evidence as to affairs of State. No one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except with the permission of the officer at the head of the department concerned, who shall give or withhold such permission as he thinks fit. 1. PRINCIPLE AND SCOPE

This section deals with the privilege of unpublished official records relating to any affairs of the State from being produced. This section is in the nature of an exception to the general rule of admissibility under the Evidence Act. 67

This section involves two things: (1) That the document is an unpublished official record relating to any affairs of State, and (2) that the officer at the head of the department concerned may give or withhold the permission for giving the evidence derived therefrom. On the grounds of public policy, evidence derived from unpublished official records of State cannot be given, except with the permission of the head of the department concerned. In H ALSBURY 4th Edn. Vol. 17, para 238, Page 167 it is stated: "Secrets of State (For offences in respect of official secrets, see C RIMINAL L AW , Vol. II, Paras. 809 et. seq. ). The Parliamentary Commissioner for Administration and his offers may not disclose information coming to their knowledge in the course of their investigations, and they may not be compelled to give evidence of such matters except in certain specified proceedings: (Parliamentary Commissioner Act, 1967, Section II(2); see PARLIAMENT), State papers, confidential official documents and communications between the Government and its officers or between such officers are inadmissible in evidence if their disclosure would be contrary to the public interest. 68 It was held that the protection is based on the broad principle of State policy and public convenience. The papers protected, as might have been expected, have usually been public official documents of a political or administrative character; yet, the rule is not limited to these documents; its foundation is that the information cannot be disclosed without injury to the public interest and not that the documents are confidential, which alone is no reason for their non-production. 69 The Supreme Court held by the majority that the documents which embodied the minutes of the meetings of the Council of Ministers and indicate the advice which the Council of Ministers gave to the Raj Pramukh and the documents embodying the advice tendered by the Public Service Commission to the Council of Ministers are protected under Section 123 and if the head of the department does not give permission for their production, the court cannot compel the State to produce them. The advice given by the Cabinet to the Raj Pramukh or the Governor is expressly saved by Article 163(3) of the Constitution. The report received by the Council of Ministers from the Public Service Commission carries on its face the character of a document, the disclosure of which would lead to the injury to the public interest. It falls in that class of documents which on grounds of public interest must as a class be withheld from the production. 70

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The majority overruled. 71 In a separate judgment while agreeing with the majority view S UBBARAO J., gave the scope of the section in clear terms at para 105 as follows : "The aforesaid discussion yields the following propositions: (1) under Section 162 of the Evidence Act the court has the overriding power to disallow a claim of privilege raised by the State in respect of an unpublished document pertaining to matters of State; but in its discretion, the court will exercise its power only in exceptional circumstances when public interest demands that is, when the public interest served by the disclosure clearly outweighs that served by the non-disclosure. One of such instances is where the public interest served by the administration of justice in a particular case overrides all other aspects of public interest. (2) The said claim shall be made by an affidavit filed by the Minister in charge of the department concerned describing the nature of the document in general and broadly the category of public interest its nondisclosure purports to serve. (3) Ordinarily the court shall accept the affidavit of a Minister, but in exceptional circumstances, when it has reason to believe that there is more than what meets the eye, it can examine the Minister and take other evidence to decide the question of privilege. (4) Under no circumstances can a court inspect such a document or permit giving of secondary evidence of its contents. (5) Subject to the overriding power of the court to disallow the claim of privilege in exceptional cases, the following provide working rules of guidance for the courts in the matter of deciding the question of privilege in regard to unpublished documents pertaining to matters of State; (a) "records relating to affairs of the State" mean documents of State whose production would endanger the public interest; (b) documents pertaining to public security, defence and foreign relations are documents relating to affairs of State; (c) unpublished documents relating to trading, commercial or contractual act ivities of the State are not ordinarily, to be considered as documents relating to affairs of State; but in special circumstances they may partake of that character; (d) in cases of documents mentioned in (c) supra , it is a question of fact in each case whether they relate to affairs of State or not in the sense if they are disclosed public interest would suffer." The Orissa High Court held "For the purpose of claiming the privilege under Section 123, the expression "Heads of departments" has two distinct meanings, it may be limited to heads of the various departments of the secretariat, namely, the secretaries of the departments, or else it may also include heads of departments of attached offices either under the Union Government or under the State Government. The privilege should be claimed by the Minister in charge who is the political head of the department concerned, if not, the secretary of the department who is the departmental head. The reason for this limiting the expression to the highest officials in the State is that privilege under Section 123 is only claimed in respect of "affairs of the State".. The National Savings Commissioner is not the secretary of the Finance Department and his claim of privilege under Section 123 must fail. In the case of a Collector the claim is still weaker because he is not a head of the department even for the purpose of Orissa Service Code." 72 The decision impliedly overruled the decisions in.

73

In S.P. Gupta v. Union of India 74 ; the Supreme Court overruled the decision in Sodhi Sukhdev Singh's Case 75 . V ISCOUNT S IMON in Duncan v. Cammell Laird and Co. Ltd., 76 observed: "The rule that the interest of the State, must not be put in jeopardy by producing documents which would injure it, is a principle to be observed in administering justice, unconnected with the interest of claims of the particular parties in litigation, and indeed, is a rule upon which the judge should, if necessary, insist even though no objection is taken at all. This has been pointed out in several cases, e.g. , in Chatterton v. Secretary of State . 77 It was further held "It is not a sufficient ground that the documents are 'State Documents' or 'Official' or are marked 'confidential'. It would not be a good ground that, if they were produced, the consequences might involve the department or the Government in Parliamentary discussion or in public criticism, or might necessitate the attendance as witnesses or otherwise of officials who have pressing duties elsewhere. Neither would it be a good ground that production might tender to expose a want of efficiency in the administration or tend to lay the department open to claims for compensation. In a word, it is not enough that the Minister or the department does not want to have the documents produced. The Minister, in deciding whether it is his duty to object, should bear these considerations in mind, for he ought not to take the responsibility of

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withholding production except in cases where the public interest would otherwise be damnified, e.g. , where disclosure would be injurious to national defence, or to good diplomatic relations, or where the practice of keeping a class of documents secret is necessary for the proper functioning of the public service." The Supreme Court in State of Punjab v. Sodhi Sukhdev Singh, 78 observed "As a result of Section 123 a document which is material and relevant is allowed to be withheld from the court and that undoubtedly constitutes a very serious departure from the ordinary rules of evidence. The principle on which this departure is justified is the principle of the overriding and paramount character of public interest. A valid claim for privilege made under Section 123 proceeds on the basis of the theory that the production of the document in question would cause injury to public interest. Care has, however, to be taken to see that interests other than the interest of the public do not masquerade in the garb of public interest. Subject to this reservation the maxim salus populiest suprema lex , which means that regard for public welfare is the largest law, is the basis of the provisions contained in Section 123." 79 C HAGLA C.J. observed: "The principle of the section is that it is not all records that are privileged, but only those the disclosure of which would result in an injury being caused to the public interest. The section gives effect to the principle that public interest must be paramount and private interest must give way when there is any conflict between the public and private interest." 80 In order to give immunity from disclosure of unpublished State documents, the documents must relate to affairs of State and disclosure thereof must be against interest of the State or public interest. 81 The Supreme Court held that the foundation of the Law behind Section 123 and 162 of the Evidence Act, is the same as in English Law. It is that injury to public interest is the reason for the exclusion from disclosure of documents whose contents, if disclosed, would injure public and national interest. 82 The head of the department should never claim privilege on the ground that the disclosure of the document in question may defeat the defence raised by the State. The considerations which are relevant in claiming privilege on the ground that the affairs of the State may be prejudiced by disclosure, must always be distinguished from the considerations, of expediency which may persuade the head of the department to raise a plea of privilege. The mere fact that a document is marked confidential will not afford sufficient justification for objecting to its production under this section nor will it be a good ground that the production may involve a department of the Government in a discussion in the legislative assembly or in public criticism. Neither will it be a good ground that production may tend to expose want of efficiency in administration or to lay the department open to claim for compensation 83 or it is apprehended that the document if produced would defeat the defence raised by the State. The impact of the document on the head of the department or the Minister incharge of the department or even the Government in power, has no relevance in making a claim for privilege under this section. 84 The provision of Sections 123 and 124 would apply to the trial of election petitions.

85

A commission of inquiry, not being a Court, cannot direct to produce the documents.

86

67 State of J&K v. Anwar Ahmed Aftab, AIR 1965 J&K 75. 68 Conway v. Rimmer, (1968) AC 910 : (1968) 1 All ER 874(HL) ; Rogers v. Secretary of State for the Home Dept., (1973) AC 388 : (1972) 2 All ER 1957(HL) ; Alfred Cromption Amusement Machines Ltd. v. Customs and Excise Commr. (No. 2), (1974) AC 405 : (1973) 2 All ER 1169(HL) . See further D ISCOVERY , Vol. 13 (para 86) et. seq. If evidence is inadmissible under this rule, there is no privilege that can be waived; Rogers v. Secretary of State for the Home Dept, supra . 69 Asiatic Petroleum Co. Ltd. v. Anglo Persian Oil Co., (1916) 1 KB 822. See also Henry Greer Robinson v. State of South Australia, AIR 1931 PC 254. 70 State of Punjab v. Sodhi Sukhdev Singh, AIR 1961 SC 493 reversing Sodhi Sukhdev Singh v. State of Punjab, AIR 1960 Pun 407. 71 W.S. Irwin v. D.J. Reid, AIR 1921 Cal 282; Nazir Ahmed v. Emperor, AIR 1944 Lah 434.

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72 Union of India v. Sudhir Kumar, AIR 1963 Ori 111; following State of Punjab v. Sodhi Sukhdev Singh, AIR 1961 SC 493; Duncan v. Cammell Laird & Co. Ltd., 1942 AC 624. 73 Chiragh Din v. Crown, 52 Cr LJ 161; G.G. in Council v. Peer Mohammad Khuda Bux, 1950 EP 228(FB) ; Public Prosecutor v. D. Yenkata Narasayya, AIR 1957 AP 486; Lakhuram Hariram v. Union of India, AIR 1960 Pat 192; Emperor v. Rasul Bux, AIR 1944 Sind 145; Devayjoti Burman v. D. Nalinakshya Ammal, AIR 1954 Cal 216. 74 AIR 1982 SC 149. 75 AIR 1961 SC 493. 76 1942 AC 624 : (1942) 1 All ER 587, 595. 77 (1895) 2 QBD 189. 78 AIR 1961 SC 493, 501. 79 State of U.P. v. Raj Narain, AIR 1975 SC 865; S.P. Gupta v. Union of India, AIR 1982 SC 149; State v. Y.D. Kumar, 1975 Cr LJ 1411. 80 Dinbai v. Dominion of India, AIR 1951 Bom 72. 81 People's Union for Civil Liberties v. Union of India, AIR 2004 SC 1442 (para 74) : (2004) 2 SCC 476. 82 State of U.P. v. Raj Narain, AIR 1975 SC 865. 83 Tukaram v. King Emperor, ILR 1946 Nag 385 : AIR 1946 Nag 256; Jagannath Dwarakanath Raje v. State, (1971) 74 Bom LR 320. 84 State of Punjab v. Sodhi Sukhdev Singh, AIR 1961 SC 493; Amar Chand Butail v. Union of India, AIR 1964 SC 1658 : (1965) ISCJ 243; following State of Punjab v. Sodhi Sukhdev Singh, AIR 1961 SC 493. 85 Subba Rao v. Brahmananda Reddy, AIR 1967 AP 155. 86 Central Bureau of Investigation v. Kumher Inquiry Commission, 1996 AIHC 1971 (paras 13, 23 and 24) (Raj).

2. SECTION 123 EVIDENCE ACT AND Section 94(1) (SECTION 91 NEW) OF CRIMINAL PROCEDURE CODE It was held that the discretion of the court under Section 94(1)Cr.P.C. is absolute, certain limitations are however placed on the exercise of the discretion of the court by sub-Section 3 ofSection 94by which the court cannot by making an order under sub-Section 1 of Sections 94 , Cr.P.C. set at naught the provisions of Sections 123 and 124 of the Indian Evidence Act . The power of the Court to make an order underSection 94(1) is not limited by Section 123 Evidence Act but the discretion of the court is a judicial discretion and it should not ordinarily be exercised in such a way as to conflict with privilege against disclosure conferred by Section 123. 87 87 Chandubhai v. State, AIR 1962 Guj 290 following Emperor v. Bilal Mahomad, AIR 1940 Bom 361.

3. NO OFFICER CAN BE PERMITTED TO GIVE ANY EVIDENCE The term evidence refers to both oral and documentary evidence.

88

88 S TOKES Vol. II, p. 919 f.n. 2.

4. UNPUBLISHED OFFICIAL RECORDS If the contents of a document have already been published there is no question of claiming privilege in respect of that document. 89

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The word 'Published' in Section 123 does not mean only those documents or papers which are printed for general publication. Even if a secret document or a part of it is revealed, the document will lose the sanctity as an unpublished record because there cannot be any guarantee as to whom and in what contingency the other parts may also be made known. The blue-book which was marked as secret document and parts of which had already been disclosed in the Lok Sabha debates and in writ proceedings before the High Court could not be held to be an unpublished record within the meaning of Section 123. 90 The word 'unpublished' in Section 123 and the disclosure contemplated in Section 124 relate primarily to the person against whom privilege is claimed under those sections. And if he has been permitted by lawfully to see those papers and also to take copies of the same. It will be futile for the authorities to claim privilege under either of those sections. 91 Documents placed on record in an earlier suit filed by a different person, cannot be called as unpublished or undisclosed documents. 92 The claim of privilege cannot be rejected on the ground that a copy of the document was produced by the opposite party. The court in such cases has to examine the document for itself and then decide whether or not claim of privilege is just, proper and bona fide . 93 Letters, and demi-officials addressed to a contractor if duly received by him would not be unpublished documents within the meaning of Section 123. 94 When an open enquiry is made and statements recorded they cannot be deemed to be confidential, much less relating to the affairs of the State. Similarly, any application or complaint made by a person cannot be held to relate to the affairs of State. 95 Where the petitioner sought for appointment letter of respondent from university for the purposes of challenging his appointment, the refusal by the university to grant the said document was held to be not proper but refusal to grant marks list was held to be proper, it being not necessary to challenge the said appointment, at the time of filing the petition. 96 The privilege under Section 123 extends only to unpublished or undisclosed official records or documents relating to the affairs of the State. 97 Notings, instructions and correspondence which are part of office file are unpublished official record, provided they are not made use of in the orders passed by the concerned officials. In respect of documents forming part of the order no privilege can be claimed. 98 The Karnataka High Court in Ravikumar v. Banglore University, 99 has observed as follows : "In the light of the policy of the Government on transparency and openness, the authorities cannot flatly deny any document on the ground of confidentiality or secret in such matters. Mere repetitions of the words would not provide confidential/secret colour to a public document. Transparency and openness provide a right of information to citizen for enforcing his constitutional right of judicial review in Court of law, I deem it proper to observe that the authorities normally have to provide document sought for to an individual if the said document has nexus with the judicial remedy in according with law."

89 Conway v. Rimmer, (1968) 1 All ER 874; Robinson v. State of South Australia, AIR 1931 PC 254. 90 State of U.P. v. Raj Narain, AIR 1975 SC 865. 91 Union v. Sudhir Kumar, AIR 1963 Ori 111; relying on Robinson v. State of South Australia, AIR 1931 PC 254; Mehtab Singh v. Secretary of State, AIR 1933 Lah 157; Bhalchandra Dattarya v. Chanabasappa, AIR 1939 Bom 237; Chandradhar Tewari v. Deputy Commissioner, AIR 1939 Oudh 65; Dinbai v. Dominion of India, AIR 1951 Bom 72. 92 Khairathi Lal v. Delhi Development Authority, (1974) 2 Del 51. 93 Union of India v. Lalli, AIR 1971 Pat 264. 94 Mehtab Singh v. Secretary of State, AIR 1933 Lah 157. 95 Mahabirji & Co. v. Prem Narain, AIR 1965 All 494. 96 K. Ravikumar v. Bangalore University, AIR 2005 Kant 21, 22. 97 Khairathi Lal v. Delhi Development Authority, (1974) 2 Del 51. 98 Amarchand v. Sukh Ram, ILR 1973 HP 459.

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99 AIR 2005 Kant 21, 23 (para 10).

5. RELATING TO ANY AFFAIRS OF STATE The Supreme Court observed: "At the time when the Evidence Act was enacted, 'affairs of State' may have had a comparatively narrow content. Having regard to the notice about governmental function and duties which then obtained, "Affairs of State" would have meant matters of political or administrative character relating, for instance, to national defence, public peace, and security and good neighbourly relation. But, the inevitable consequence of the change in the concept of the functions of the State is that the State in pursuit of its welfare activities undertakes to an increasing extent act ivities which were formerly treated as purely commercial, and documents in relation to such commercial activities undertaken by the State, in the pursuit of public policies of social welfare are also apt to claim the privilege of documents relating to the affairs of State. As the Legislature has advisedly refrained from defining the expression "affairs of State" it would be inexpedient for judicial decisions to attempt to put the said expression into a straight jacket of a definition judicially evolved. The question as to whether any particular document or a class of documents answer the description must be determined in each case on the relevant facts and circumstances adduced before the court." 1 J USTICE V ENKATARAMAYYA while concurring with B HAGAWATHI in S.P. Gupta v. Union of India 2 observed "The expression" "affairs of State" in Section 123 should receive a very narrow meaning. Any claim for interpreting it with a wider connotation may expose Section 123 to be challenged as being unconstitutional". "Affairs of State" is a very wide expression. Every communication which proceeds from one officer of State to another officer of the State is not necessarily relating to the affairs of State. What are the "affairs of State" has got to be determined by a reference to the grounds on which privilege can be claimed in respect of a particular document. It is only such documents which relate to the affairs of the State the disclosure of which would be detrimental to the public interest that come within the category of unpublished official records relating to affairs of State entitled to protection under this section. 3 "Affairs of State" will include any matter of a public nature with which the Government is concerned, i.e. , all secrets of State, such as State papers and all communications between Government and its officers, the privilege in such cases not being that of the person who is in possession of the secret, but that of the public as a trustee for whom the secret has been entrusted to him. 4 Classes of documents to which the immunity may be accorded are not closed and in the life of a fast changing society rapidly growing and developing under the impact of vast scientific and technological advances, new class or class of documents may come into existence to which the immunity may have to be granted in public interest. 5 "Affairs of the State" means administrative instructions and guidance notes secretly given to various departments of Governments. They can claim status of being documents relating to affairs of State. 6 It may cover the case of documents in respect of which the practice of keeping them secret is necessary for the proper functioning of the public service. 7 Departmental notes contained in official files involving public interest are privileged, as they would relate to affairs of State. 8 Observations or notings made by officers by way of comment or opinion from the reports of the speeches made at public election meetings are only privileged and rest of the reports containing factual data would not be covered by Section 123. 9 Decisions of the Cabinet of the Government for the execution of public policies would be affairs of State. 10 A document which embodies the minutes of the discussion between private party and State Minister which indicate the advice given by the Minister is which relates to affairs of State. 11 The unpublished records of the affairs of State may include:-5.   4.   4.   4.  

Documents that pass between two States. Documents between the State and its own subjects. Documents between the State and subjects of another State. Documents between subjects of more than one State.

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3.   State. 12

Documents that pass between Head of Departments or between Ministers of

All the documents relating to deployment of armed forces are unpublished official records. And in the very nature of things they are confidential and secret papers. 13 Whenever it is found necessary by the State to maintain law and order in a particular locality, the armed force can be deployed at the discretion of the authorities responsible for maintenance of law and order. All such papers relating to that matter would be documents relating to affairs of State. 14 In a case a letter by an under-secretary to the Government of India and another to the Secretary to the Government of Bombay, P.W.D. Department and another letter by the Secretary to the Bombay Government to the officers of the Railway were held as unpublished official records and relate to affairs of the State. 15 Punjab Police Rules 23, 31, 27, 24(2) treat the contents of surveillance register as strictly confidential and pertaining to public security or public peace. 16 Reports by police officers to the Government about the investigation of allegations of the commission of an offence are privileged under this section and Section 124 as they are unpublished records and are submitted in official confidence. The privilege which the Government can claim in respect of documents relating to matters of State is a narrow one and must be sparingly used. 17 The verbatim reports of the meetings held in elections and recorded by the special branch of police were held to be form part of the records pertaining to maintenance of peace and security and thus they relate to the affairs of State. 18 A report regarding the act ivities of an individual with a view to enable the State to take action against him under the Preventive Detention Act, as it does not only relate to the affairs of the individual, but it also relates to the affairs of the state so far as they effect the affairs of the State. 19 A complainant filed a complaint against a public officer for illegally permitting Kuwait foreign nationals to enter Kerala State through airport without a valid visa and allow them to stay for certain period. In the enquiry under 202, Cr.P.C. before the Criminal Court, the complainant filed an application requiring the officers to produce certain documents in their possession before the Court. It was held that the production of the documents would cause greater injury to the public interest than their non-production, and the magistrate was justified in rejecting that application on the ground of privilege.20 The character roles and confidential reports of Government employees relate to affairs of State. 21 The confidential record of the Controller of Stationery relating to the watermark of cartridge papers cannot be compelled to be produced in Court. 22 Secretariat files containing notes, minutes and correspondence between Government and Public Service Commission were held privileged documents within the meaning of Section 123 and 124 of the Evidence Act, though that privilege is not absolute. 23 When a report was sent by the High Court to the Government regarding the promotion or reversion of a subordinate Judge, it is in the nature of consultations under 233 of the Constitution and therefore, a privileged document exempted from being produced. 24 It was held by the M.P. High Court that the State was justified in claiming a privilege against production of the relevant file concerning the grant of mining lease as it contained letters written by the Head of the Department to the subordinate officers of the Department and vice versa and between that Department and other Departments which were unpublished and contained State secrets. 25 In a suit for injunction restraining the Government from diverting the water flow into the plaintiff's tank by construction of a dam, it was held that the correspondence between the Madras and Travancore Government, regarding the construction of a dam was privileged while the reports by sub-ordinate officers and the Statements recorded by them are not privileged. 26 Documents concerning administration relating to defence foreign affairs, cabinet minutes and advice or notes exchanged between Ministers and other heads of departments of the Government which may cover fields of trade, commerce, etc., which are to be kept in secret, But, simply because as matter relates to affairs of State it would not be protected under 123 unless evidence is derived from the unpublished record. 27 Statements made and documents produced by assessees before Income-tax Officers for the purpose of showing the income of such assessees do not refer to matters of State, and are not privileged under this act ion. 28 Also the Govt. cannot claim this privilege regarding the admission of foreign students. 29 The Supreme Court observed that prima facie it did not contemplate any reason for the feasibility reports as to the inter-linking of rivers not being put on website. 30

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1 State of Punjab v. Sodhi Sukhdev Singh, AIR 1961 SC 493, following Duncan v. Cammell Laird and Co. Ltd., 1942 AC 624. 2 AIR 1982 SC 149. 3 Chamarbhag Walla v. Palpia, (1948) 52 Bom LR 231. 4 B EST , 12th Edn., S. 578, p. 495. 5 S.P. Gupta v. Union of India, AIR 1982 SC 149 per B HAGHAVAT ' S . 6 Sujit Kantha v. Union of India, AIR 1970 Assam 131. 7 S.B. Choudhury v. I.P. Changkakati, AIR 1960 Assam 210. 8 State of Orissa v. Jagannath, AIR 1977 SC 2201. 9 Kanwarlal v. Amarnath, AIR 1975 SC 308. 10 Orient Paper Mills v. Union of India, AIR 1979 Cal 114. 11 Kotah Match Factory v. State of Rajasthan, AIR 1970 Raj 118. 12 Iqbal Ahmed v. State of Bhopal, AIR 1954 Bhopal 9. 13 Subhasini Jena v. Commandant of 6th Battalian, 1988 Cr LJ 1570(Ori) . 14 Subhashini Jena v. Commandant 6th Battalion, Cuttack, 1988 Cr LJ 1570. 15 Mutsaddilal v. Union of India, AIR 1955 Hyd 61. 16 State v. Hariram, (1969) 2 Punj 338. 17 Rajal Raojee v. Provincial Government, Central Provinces, ILR 1950 Nag 690. 18 Kanwarlal Gupta v. Amarnath Chawla, (1972) 2 Del 291; see CONTRA Ramasrinivasan v. Shanmugham, AIR 1969 Mad 781; (Speeches at public meetings recorded by police officers under departmental instructions). 19 S.B. Choudhury v. I.P. Changkakati, AIR 1960 Assam 210 following Emperor v. Nanda Singh, AIR 1925 Oudh 540; In re : Manthubhai Mehta, AIR 1945 Bom 122. 20 Sundaresan Thampi v. Ramachandrani, 1987 Cr LJ 108(Ker) following S.P. Gupta v. Union of India, AIR 1982 SC 149. 21 State of Punjab v. Surjit Singh, AIR 1975 Punj 11; H.L. Rodhey v. Delhi Administration, AIR 1969 Del 246. 22 Jaffarul Hossain v. Emperor, (1931) 59 Cal 1046 : AIR 1932 Cal 468. 23 State of Bihar v. Kripalu Shankar, AIR 1987 SC 1554. See also (1977) 2 Cut 125, 140. 24 Barada Kanta Misra v. State, ILR 1966 Cut 503 (In view of AIR 1982 SC 149 this may not be good law). 25 Durga Prasad v. Parveen, AIR 1975 MP 196. 26 M. Yusuff v. State of Madras, AIR 1971 Mad 468. 27 Raj Narain v. Smt. Indira Nehru Gandhi, AIR 1974 All 324 (this proposition was not touched while reversing the decision in State of U.P. v. Raj Narain, AIR 1975 SC 865. 28 Venkata Chella Chettiar v. Sampathu Chettiar, (1908) 32 Mad 62. 29 Sajitha G. v. Secretary to Govt. of India, Ministry of External Affairs, AIR 1994 Mad 204 (para 11). 30 Networking of Rivers, In re, (2004) 11 SCC 358, 359 (para 2).

6. NOT AFFAIRS OF STATE

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The Diary of a foot constable who was shadowing the movements of a suspect is not an unpublished document relating to the affairs of a State. 31 Statements made and recorded by a forest range officer in the course of an investigation are not unpublished documents, relating to any affairs of the State. 32 Departmental enquiry papers are not unpublished documents relating to affairs of the State. Consequently where the probity or conduct of a public servant is a matter in issue the State cannot screen his conduct from the purview of the Court. 33 Documents showing the steps for selection to the appointment of the Chief Secretary which has to be done on merit with due regard to seniority under Rule 3(2-A) of the Indian Administration Service Rules of 1954 cannot be held to be a document relating to the affairs of the State. 34 In a suit for payment of dues under a contract, the document concerning the fixation of price relates to a commercial transaction and it does not relate to the affairs of the State, and so no privilege can be claimed. 35 Statements of witnesses recorded by C.I.D. Inspector during enquiry neither constitutes documents relating to affairs of State nor are they communications made to a public officer in official confidence. 36 Where a Government employee challenged the steps taken by a departmental promotion committee and asked for (1) proceedings of the committee dealing with scrutiny of candidates (2) confidential reports of the person concerned and (3) file and minutes of the committee, it was held that except the confidential reports there is no privilege in respect of other documents. 37 The privilege claimed regarding production of character roll of an employee on the ground that its disclosure would cause injury to the freedom and candour of expression of opinion by the concerned authorities cannot be sustained as the notes and minute in such documents do not relate to determination and execution of public policies. 38 A Government supplier of chrome ore wanted to recover the price fixed by the Department in their files. The Court held that the document concerning fixation related to a commercial transaction in respect of which no privilege could be claimed. 39 Statements made by witness in the course of a departmental enquiry into the conduct of police officers who were subsequently put upon their trial on charges of taking illegal gratification are not privileged under this section or S. 124 or 125. 40 The particulars contained in a record of assessment under Section 32(1) of U.P. Sales Tax Act are not confidential record and Section 123 would not apply. 41 Public Services Commission which is a body independent of the State under the Constitution cannot claim privilege in respect of a document which is the basis of the selection of candidates made by it. 42 It was held that conciliator's report in an industrial dispute is not a privileged document, or a confidential document. The party to the dispute is entitled to a copy of the report. 43 It was held that the accounts of different officers of Government and other bodies are audited by auditors from the Accountant General's Office; in prosecutions for criminal misappropriations and criminal breach of trust arising out of different reports prepared by them, the Accountant General or his office ought to adopt a helpful attitude and should not claim privilege, otherwise the guilty persons are likely to escape punishment. 44 Where the documents had no bearing on the security of nation as well as on friendly relations with various foreign countries, privilege could not be claimed in respect of those documents. 45 Certain documents, referred to in the show cause for the removal of a President of a Municipal Council, cannot be said to be privileged documents as they do not involve any question relating to the affairs of the State disclosure of which would be against the interest of the State or public interest. 46 The report submitted by the police officer after inquiry to the state Government in respect of illegal trade in kidney was held to be not on the affairs of the state. 47 If the court found on inspection that any part of the document was innocuous in the sense that it did not relate to affairs of State, the court could order disclosure of the innocuous part, provided that would not give a distorted or misleading impression. Where the court orders disclosure of an innocuous part, the court should seal up the other parts because their disclosure would be undesirable. 48 31 Mohan Singh v. Emperor, AIR 1940 Lah 217; Ibrahim Sheriff Yazdani v. Secretary of State, AIR 1936 Nag 25. 32 Kaliappa Udayan v. Emperor, AIR 1937 Mad 492. 33 Niranjan Dass Sehgal v. State of Punjab, AIR 1968 Punj 255.

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34 N.P. Mathur v. State of Bihar, AIR 1972 Pat 93(FB) following State of Punjab v. Sodhi Sukhdev Singh, AIR 1961 SC 493; Amarchand Butail v. Union of India, AIR 1964 SC 1658. 35 F.A. Corporation Ltd. v. Industrial Development Corporation Ltd., Orissa, AIR 1986 Ori 199; following S.P. Gupta v. Union of India, AIR 1982 SC 149; Durga Prasad v. Praveen, AIR 1975 MP 196; Dinbai v. Dominion of India, AIR 1951 Bom 72. 36 B. Kondaswamy Reddy v. State of A.P., 1982 Cr LJ 393. 37 Commissioner of I.T. v. Good will picture Ltd., Delhi, (1972) 1 Del 146. 38 Maini v. Commissioner of I.T., (1970) 1 Del 879. 39 Ferroy Alloys Corporation Ltd. v. Industrial Development Corporation of Orissa, AIR 1986 Ori 199. The Court relied upon State of Punjab v. Sodhi Sukhdev Singh, AIR 1961 SC 493 (partly overruled by the Supreme Court in S.P. Gupta v. U.P., AIR 1982 SC 149 and Section 162 which requires documents to be produced. 40 Harbans Sahai v. Emperor, (1912) 16 CWN 431. 41 Allah Bux v. Ratanlal Jain, ILR 1958 All 829. 42 Referring to Amarchand v. Union of India, AIR 1964 SC 1658; Gourahari Mishra v. State, (1978) 2 Cut 477. 43 H. S. Bande v. State Industrial Court, Nagpur, AIR 1967 Bom 174. 44 Krishna Nandan Prasad v. State, AIR 1958 Pat 166(DB) . 45 Niyamvedi v. Ramon Srivastava, 1995 Cr LJ 1976 (para 10) (Ker). 46 Baburao Vishwanath Mathpati v. State, AIR 1996 Bom 227 (para 60). 47 State of Kerala v. T.P. Nandkumar, 2005 CrLJ 4469, 4477 (para 16) (Ker). 48 State of U.P. v. Raj Narain, AIR 1975 SC 865.

7. OFFICER AT THE HEAD OF THE DEPARTMENT CONCERNED The privilege should be claimed generally by the Minister in-charge who is the political head of the department concerned, if not, the Secretary of the department should claim the privilege. 49 The expression "Head of the Department" occurring in Section 123 is confined to the Minister concerned and in special circumstances to the Secretary of the Department concerned. The Inspector General of Police cannot be an officer at the Head of the Department for the purpose of Section 123. 50 49 State of Punjab v. Sodhi Sukhdev Singh, AIR 1961 SC 493; State of A.P. v. Ramu Naido, (1964) 2 An LT 25; Public Prosecutor v. D. Venkata Narasayya, AIR 1957 AP 486; State of Madras v. S.A. Baffakki, AIR 1954 Mad 926. 50 State v. Jagannath Jena, ILR 1973 Cut 427.

8. HEAD OF THE DEPARTMENT--CERTAIN CASES Where the question of loyalty of a pilot of Air-India was involved the affidavit given by an officer of high status in Air-India was accepted and the High Court which held that the privilege claimed was based on proper grounds and refused to peruse... the documents. 51 Under the Prevention of Corruption Act the affidavit by the Head of Anti-corruption Department claiming privilege is sufficient. 52 It was held under the Co-operative Societies Act the Registrar of the Co-operative department is the highest executive authority in the State for the department; for the purpose of Section 123. 53 The Chief Personal Officer N.E. Railway is not a Head of the Department for claiming privilege under Section 123. 54 Director of Industries is not the head of the department for purpose of the sector though he may be called as the head for other purposes. 55 Though, the Governor of Reserve Bank of India, is also head of the various departments of the Bank, it is the officer at the head of the department concerned that has to claim privilege under Section 123 and not the Governor of the R.B.I.

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Secretary to Board of Education is not the head of the Department to claim privilege in respect of reviewers report submitted to the Board. 57 National Savings Commissioner is not the secretary of the Finance Department and so cannot be treated as the Head of the Department to claim privilege under Section 123. 58 56

Where the Government claimed want of knowledge of proceedings under Section 46 of U.P. Zamindari Abolition and Land Reforms Act the party denied such a claim and applied for discovery and inspection of certain documents. The Government claimed privilege. The Supreme Court held that the compensation officer will be required to decide whether the claim of privilege raised by the Government should be sustained or not. 59 51 V.P.S. Gill v. Air India, AIR 1988 Bom 416. 52 State v. V.D. Kumar, 1975 Cr LJ 1411. 53 Public Prosecutor v. D. Venkata Narasayya, AIR 1957 AP 486 relying on State of Madras v. S.A. Baffakki, AIR 1954 Mad 926. 54 Union of India v. Indradeo Kumar, AIR 1963 Pat 129. 55 Construction Private Ltd. v. State of Punjab, 1963 Cur LJ 130(Punj) . 56 Reserve Bank of India v. Sudershan Kumar Khanna, ILR 1969 Del 460. 57 Debajyothi v. Dr. Nalimakshya, AIR 1954 Cal 216. 58 Union of India v. Sudhir Kumar, AIR 1963 Ori 111. 59 Sub-divisional Officer, Mirzapur v. Raja Srinivasa, AIR 1966 SC 1164.

9. WHO SHALL GIVE OR WITHHOLD SUCH PERMISSION AS HE THINKS FIT In State of Punjab v. Sodhi Sukdev Singh, 60 Supreme Court observed" Thus our conclusion is that reading Sections 123 and 162 together the court cannot hold an enquiry into the possible injury to public interest which may result from the disclosure of the document in question. That is a matter for the authority concerned to decide but the Court is competent, and indeed is bound, to hold a preliminary enquiry and determine the validity of the objections to its production and that necessarily involves an enquiry into the question as to whether the evidence relates to an affairs of State under Section 123 or not. In this country the court has to determine the character or class of the document. If it comes to the conclusion that the document does not relate to affairs of State, then it should reject the claim for privilege and direct its production. If it comes to the conclusion that the document relates to the affairs of State, it should leave it to the head of the department to decide whether he should permit its production or not". This decision was however overruled in S.P. Gupta v. Union of India , 61 . J USTICE B HAGAVATHI , J. observed "Now if the court has no power to inspect the document, it is difficult to understand how the court can find, without conducting an enquiry as regards the possible effect of the disclosure of the document upon public interest, that the document is one relating to affairs of State, as ex-hypothesi a document can be said to relate to affairs of State only if its disclosure will cause injury to public interest. It might be that there are certain classes of documents which are of such a character that even without inspecting them or conducting an enquiry, it might be possible to say that by virtue of their character, their disclosure would be injurious to public interest and therefore they are documents relating to affairs of State. But there might be other documents which do not fall within this description and yet whose disclosure might be injurious to public interest and in case of such documents it would not be possible for the court without inspecting them or at any rate without holding an enquiry to determine whether their disclosure would be injurious to public interest and they should therefore be classified as documents relating to affairs of State. Even so, according to G AJENDRAGADKAR , J. and the other learned Judges, the court can and must determine whether

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such documents relate to affairs of State without inspecting them and without even holding an enquiry into the possible injury to public interest which might result from their disclosure. The view taken by G AJENDRAGADKAR , J. and the other learned Judges in Sodhi Sukhdev Singhs' case 62 (supra ) thus runs into an inconsistency and creates an illogical situation. He further observed: "The court has to balance the detriment to the public interest on the administrative or executive side which would result from the disclosure of the document against the detriment to the public interest on the judicial side which would result from non-disclosure of the document though relevant to the proceeding. Vide the observations of L ORD P EARSON in Reg. v. Lewes, JJ, Exparte, Hoke Secretary , 63 (supra ) at page 406 of the report. The court has to decide which aspect of the public interest predominates or in other words whether the public interest which requires that the documents should not be produced outweighs the public interest that a court of justice in performing its function should not be denied access to relevant evidence. The court has thus to perform a balancing exercise and after weighing the one competing aspect of public interest against the other decide where the balance lies. If the court comes to the conclusion that on the balance, the disclosure of the document would cause greater injury to public interest than its non-disclosure, the court would uphold the objection and not allow the document to be disclosed but if on the other hand, the court finds that the balance between competing public interest lies the other way, the court would order the disclosure of the document. This balance between two competing aspects of public interest has to be performed by the court even where an objection to the disclosure of the document is taken on the ground that it belongs to a class of documents which are protected irrespective of their contents, because there is no absolute immunity for documents belonging to such class. Even in Conway v. Rimmer 64 , at p. 952 L ORD R EID recognised an exception that cabinet minutes and the like can be disclosed when they have become only of historical interest and in Lanyon Pvt. Ltd. v. Commonwealth, 65 (Supra ). M ENZIES J. agreed that there might be "special circumstances" in which such documents might be examined L ORD S CARMAN also pointed out in the course of his speech in Burmah Oil Co. v. Bank of England 66 (Supra ) that he did not accept "that there are any classes of documents which however harmless their content and however strong the requirement of justice, may never be disclosed until they are only of historical interest". The learned Lawlord said and we are quoting here his exact words since they admirably express our own approach to the subject: "But is the secrecy of the inner workings of the Government machine so vital a public interest that it must prevail over even the most imperative demands of justice? If the contents of a document concern the national safety, affect diplomatic relations or relate to same State secret of this importance, I can understand an affirmative answer. But if they do not (and it is not claimed in this case that they do), what is so important about secret of Government that it must be protected even at the price of injustice in our court?". The reasons given for protection the secrecy of Government at the level of policy making are two. The first is the need for candour in the advice offered to Minister, the second is that disclosure 'would create or fan ill-informed or captious public or political criticism'. L ORD R EID in Conway v. Rimmer, thought the second "the most important reason". Indeed he was inclined to discount the candour argument. I think both the reasons are factors legitimately to be put into the balance which has to be struck between the public interest in the proper functioning of the public service. (i.e. , the executive arm of the Government) and the public interest in the administration of justice. Sometimes the public service reasons will be decisive of the issue; but they should never prevent the court from weighing them against the injury which would be suffered in the administration of justice if the document was not to be disclosed. The same view was expressed by G IBBS A.C.J. in Sankey v. Whitlam 67 (Supra ), where the learned acting Chief Justice said:-"I consider that although there is a class of documents whose members are entitled to protection from disclosure irrespective of their contents, the protection is not absolute, and it does not endure for ever. The fundamental and governing principle is that documents in the class may be withheld from

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production only when this is necessary in the public interest. In a particular case the court must balance the general desirability that documents of that kind should not be disclosed against the need to produce them in the interests of justice. The court will of course examine the question with special care, giving full weight to the reasons for preserving the secrecy of documents of this class but it will not treat all such documents as entitled to the same measure of protection--the extent of protection required will depend to some extent on the general, subject-matter with which the documents are concerned." There is nothing sacrosanct about the immunity which is granted to documents because they belong to a certain class. Class immunity is not absolute or inviolable in all circumstances. It is not a rule of law to be applied mechanically in all cases. The principle upon which class immunity is founded is that it would be contrary to public interest to disclose documents belonging to that class, because such disclosure would impair the proper functioning of the public service and this aspect of public interest which requires that justice shall not be denied to any one by withholding relevant evidence. This is a balancing task which has to be performed by the Court in all cases. J USTICE D ESAI observed: Undoubtedly there must be such affairs of the State involving security of the nation and foreign affairs where public interest requires that the disclosure should not be ordered. It is however, equally well recognised that fair administration of justice is itself a matter of vital public interest. Therefore if the two public interests conflict, the Court will have to decide whether the public interest which formed the foundation for claiming privilege would be jeopardised if disclosure is ordered and on the other hand whether fair administration of justice would suffer by non-disclosure and decide which way the balance tilts. In the ultimate analysis the approach of the Court while deciding the question of privilege would be that it has to balance public interest in just justice and just administration of justice and State affairs at high level to respect of appointment to high constitutional offices and then decide which way the balance tilts." J USTICE V ENKATRAMAIAH observed: "There is residual power in Court to decide whether the disclosure of a document is in the interest of public and for that purpose, if necessary to inspect the document and that the statement of head of the department that the disclosure would injure public interest is not final, State of U.P. v. Raj Narain, AIR 1975 SC 365, Rel. on ".

In the above case a further question arose as to the scope of judicial scrutiny regarding the advice tendered by the Council of Ministers to the President. Justice B HAGAVATHI speaking for the majority observed: "There can be no doubt that the advice tendered by the Council of Ministers to the President is protected against Judicial Scrutiny. But the material on which the advice tendered by the Council of Ministers is based cannot be said to be part of the advice and the correspondence exchanged between the Law Minister, the Chief Justice of Delhi and the Chief Justice of India which constituted the material forming the basis of the decision of the Central Government must accordingly be held to be outside the exclusionary rule enacted in Cl. (2) of Article 74." However the Supreme Court observed: "Where the documents like official notes etc., which are sought to be produced in court, are part of the preparation of documents leading to the formation of the advice tendered to the President of India they are privileged under Art. 74(2) of the Constitution, which provides that the question whether any, if so what advice was tendered by Ministers to the President, shall not be enquired into in any court. The court is precluded from asking for production of such document. It is true that there is no sacrosanct rule about the immunity from production of documents and that the privilege should not be allowed in respect of each and every document. The claim of immunity and privilege has to be based on public interest. It is also well-settled that the privilege cannot be waived. It is the duty of the Supreme Court to prevent disclosure where Art. 74(2) is applicable.". 68 The oath of office of secrecy adumbrated in Art. 75(4) and Schedule III of the Constitution does not absolve the Minister either to state the reasons in support of the public interest immunity to produce the state documents or as to how the matter was dealt with or for their production when the discovery order nisi or rule nisi was issued. The Minister has to act in aid of the Court. 69

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In view of the fact that Sukhdev Singh's case at present stands overruled by the decision in S.P. Gupta's case, the decisions which followed Sukhdev Singh's case cannot be considered to be good law. As there is a conflict between the decision of the Supreme Court in Sukhdev Singh's case and S.P. Gupta's case and also later case in Dypuck Systems Pvt. Ltd. , the matter has been referred to a larger Bench of Nine Judges. 60 AIR 1961 SC 493. 61 AIR 1982 SC 149. 62 AIR 1961 SC 493. 63 1973 AC 388. 64 (1968) AC 910. 65 129 Commonwealth LJ 650. 66 (1979) 3 All ER 700. 67 (1978) 21 ALR 505. 68 Doypack Systems Pvt. Ltd. v. Union of India, AIR 1988 SC 782. See also S.R. Bommai v. Union of India, AIR 1994 SC 1918 (para 32), dissenting from State of Rajasthan v. Union of India, AIR 1977 SC 1361 : (1978) 1 SCR 1. 69 R.K. Jain v. Union of India, AIR 1993 SC 1769 (para 39).

10. CONSTITUTION AND Section 123 The High Court in exercise of its powers under Art. 226 of the Constitution of India can call for scrutiny and perusal by it, unpublished official records. In so doing the Court is not permitting anybody to give any evidence from these records relating to any affairs of State within the meaning of this section. 70 In a petition for the issue of a Writ of Cerciorari for quashing the proceeding, the Government has to submit its file to the Court. 71 Claim for privilege can hardly prevail over the Constitutional mandate of disclosure under Art. 22(5) of the Constitution in cases of preventive detention. The privilege claim by virtue of Cl. (6), Art. 22 must be properly placed before the Court. 72 Any communication between the Chief Minister and the Governor of the State under Art. 163(3) of the Constitution concerning the land acquisition proceedings is a privileged communication and is not open to question before the High Court 73 but not the records relating to act ion taken by the Govt. in regard to formation of the Human Rights Commission. 74 The Union Govt. representing the Cabinet can claim no privilege or protection against the disclosure of "otherwise information" in its possession and which was made the basis of proclamation under Art. 356. 75 70 R. Ramanna v. State, AIR 1971 AP 196. 71 Joseph John v. State, AIR 1953 Tra-Co 363 (FB). 72 Mohd. Abubukar Marwari v. Union of India, 1982 Cr LJ 53(Bom) relying on Lawrence D' Souza v. State of Bombay, AIR 1956 SC 531. 73 Shree Swami v. State of Rajasthan, AIR 1995 Raj 69 (para 9). See also People's Union for Civil Liberties, Allahabad v. State of U.P., AIR 2000 All 103 (para 28) : 2000 AIHC 2803. 74 People's Union for Civil Liberties, Allahabad v. State of U.P., AIR 2000 All 103 (para 28) : 2000 AIHC 2803. 75 Sunderlal Patwa v. Union of India, AIR 1993 MP 214 (para 30).

11. MANNER IN WHICH PRIVILEGE IS TO BE CLAIMED

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The proper course to claim privilege in respect of certain documents would be to file a reply to the affidavit claiming the privilege and the question be then considered after hearing both the parties on the point. 76 The claim should always be made in the form of an affidavit. The affidavit should show that each document in question has been carefully read and considered, and the person making the affidavit is satisfied that its disclosure would lead to public injury; if there are a series of documents included in a file, it should appear from the affidavit that each one of the documents whose disclosure is objected to, has been duly considered by the authority concerned, the affidavit should also indicate briefly within permissible limits, the reason why it is apprehended that their disclosure would lead to injury to public interest. In a proper case the person making the affidavit whether he is Minister or the Secretary should be summoned to face cross-examination on the relevant points. 77 The fact that on an earlier occasion when the document was asked to be produced, no claim of privilege was made, by itself will not make the claim mala fide , when made, after the final order to produce the documents was passed. 78 An affidavit through the personal assistant, of a Collector who was in direct charge of the record was accepted. 79 Averments in an affidavit that files contained several letters written by the held of the department who is subordinate and vice versa or that they were secrets of State do not constitute material to infer that documents refer to affairs of State. 80 The mere assertion that the documents sought to be produced are documents dealing with the 'affairs of the state' is not sufficient to hold that those documents are privileged documents. 81 Mere claim that disclosure of the documents would be prejudicial to public interest is not enough. The claimant must give the reasons therefor within permissible limits for claiming privilege. 82 Where an order is passed by a court permitting the inspection of documents, for which privilege has been claimed it was held that the objection must be deemed to have been overruled. 83 When it has been expressly averred that the officer concerned has very carefully considered the document in issue and also given detailed reason in his affidavit claiming privilege, the mere absence of the word "read" or words " Bona fide " would in no way detract from the validity of such an affidavit. 84

In a case where income-tax authorities had not claimed privilege but the Court on its own came to a finding that documents called for by one of the parties could not be summoned, due to restriction imposed by the Ss. 123 & 124 of the Evidence Act, it was held that the Court could not term any document as privileged document and, it was the authority who could claim the same. 85 76 George Mathew (Dr.) v. Union of India, (1997) 10 SCC 537. 77 Ijjat Ali Talukdar v. Emperor, AIR 1943 Cal 539 approved; see also Amarchand Butail v. Union of India, AIR 1964 SC 1658 reversing; Amarchand v. Union of India, AIR 1962 HP 43; See also Ramachandran v. Alagiriswamy, AIR 1961 Mad 450; Public Prosecutor v. D. Venkata Narasayya, AIR 1957 AP 486; Union of India v. Indradeo Kumar, AIR 1963 Pat 129; Narayana Swamy v. State, AIR 1953 Mad 228; Lakuram Hariram v. Union, AIR 1960 Pat 192; Brijinath Kedarnath v. State, 1957 Cr LJ 134(M.B.) . 78 Union of India v. Lalli, AIR 1971 Pat 264. 79 In re : Killi Suryanarayana Naidu, AIR 1954 Mad 278. 80 Joti Prasad Sharma v. Addl. Civil Judge, Dehradun, AIR 1968 All 42. 81 Central Intelligence Officer, S.I.B. v. Commission of Inqiury, 2005 CrLJ 2944, 2955 (para 38) (Ker). 82 State v. Kailashwati, AIR 1979 Raj 221. 83 B.S. Sindhu v. Union of India, (1971) 1 SLR 600(HP) . 84 State v. Hariram, (1969) 2 Punj 338. 85 Debasis Sahu v. Nabeen Chandra Sahu, AIR 2002 Ori 211, 213 (para 5), relied on Dagiram Pindilall v. Trilok Chand Jain, AIR 1992 SC 990 (paras 13 & 14, 17) and S.P. Gupta v. Union of India, AIR 1982 SC 149 : (1991) 2 SCC 263.

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12. EXCEPT WITH THE PERMISSION It was held that even the documents forming part of unpublished official record and relating to any affairs of the State can be given in evidence if the head of the department concerned grants permission for it. 86 86 Pulin Behari v. State, AIR 1965 Tri 33.

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Ratanlal & Dhirajlal: Law of Evidence, Updated 23rd Edition/THE INDIAN EVIDENCE ACT (ACT 1 OF 1872)/PART III PRODUCTION AND EFFECT OF EVIDENCE/CHAPTER IX OF WITNESSES/S. 124.

CHAPTER IX OF WITNESSES S. 124. Official communications. No public officer shall be compelled to disclose communications made to him in official confidence, when he considers that the public interests would suffer by the disclosure. 1. PRINCIPLE AND SCOPE

Under this section a public officer cannot be compelled to disclose communications made to him in confidence if he considers that public interests would suffer by the disclosure. This section is based on the same principle as Section 123, the object being the same for the two sections, and they are based on public policy. This section is designed to prevent the knowledge of official papers that is to say papers in official custody, beyond that circle which would obtain knowledge of them in confidence whether the confidence was express or implied. It would normally include all officers including clerks of superior officers and might also apply to non-officials to whom such papers were disclosed on the understanding express or implied that the knowledge should go no further. 87 Public interests are paramount as compared with the individual interests of a party in a Court of Justice. It is absolutely essential to the welfare of the State that the names of parties who interpose in situations of this kind should not be divulged, for otherwise, be it from fear or shame, or the dislike of being publicly mixed up in inquiries of this nature, few men would choose to assume the disagreeable part of giving or receiving information respecting offences, and the consequence would be that many great crimes would pass unpunished. 88 The right to claim privilege is available only to public servants.

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When communication is made in official confidence its non-disclosure is necessary for proper functioning of public service. 90 A commission of inquiry, not being a Court, cannot compel to disclose the official communication.

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Granting permission to bring certain portions of document on record by the High Court contravenes this section. 92 87 Chandra Dhar Tewari v. Deputy Commissioner, Lucknow, (1938) 14 Luck 351 : AIR 1939 Oudh 65. 88 T AYLOR , 12th Edn. S. 941, p. 597. 89 Ramaswami Chettiar v. Mahadevan K.J., (1968) 2 Mad LJ 393. 90 H.L. Rodhey v. Delhi Administration, AIR 1969 Del 246. 91 Central Bureau of Investigation v. Kumher Inquiry Commission, 1996 AIHC 1971 (para 34) (Raj). 92 Kishan v. State of Maharashtra, AIR 1973 SC 2751.

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2. NO PUBLIC OFFICER SHALL BE COMPELLED TO DISCLOSE The term 'Public Officer' means an officer with public as opposed to private duties who receives communications made to him in official confidence of such a nature that disclosure in certain cases would injure the public interests. The word 'disclose' means the first disclosure of communications made in official confidence and does not apply to a disclosure in a court of law of what has already been disclosed outside it. The object of the section is to prevent the disclosure of things not known outside that circle which is in confidence and the section has no application when once there has been disclosure to a member of the public to whom the contents of such papers have not been made known in confidence. 93 Though "Public officer" is not defined under the Act all officers who in discharge of their regular duties receive communications made to them in official confidence and are expected not to disclose confidential information to others must be held to be public officers within the meaning of Section 124. 94 If the officer who received the communication, in his turn forwards it to another officer for further action the latter officer can claim the privilege under Section 124 by filing an affidavit to the effect that the public interest would suffer by the disclosure of the communication, and it would be sufficient to support the claim. 95 The Vice Chancellor of the Punjab University is a 'Public Officer' within the meaning of this section. 1 The privilege can only be claimed by the head of the department or by the Secretary of that department on an affidavit. Filing of a certificate only is not enough. 2 Where it is an unpublished official record relating to an affair of the State, the question whether the disclosure of its contents would be against public interest and whether privilege could be claimed rested with the head of the department and if the head of the department refused to disclose it, the court would not compel him to produce the document or disclose its contents. 3 Compensation Officer under the U.P. Zamindari Abolition and Land Reforms Act was held to be a public officer. 4 93 Chandra Dhar Tewari v. Deputy Commissioner, Lucknow, (1938) 14 Luck 351 : AIR 1939 Oudh 65. 94 P.P. v. Pocku Syed Ismail. 1973 Cr LJ 931(AP) . 95 Union of India v. Sudhir Kumar, AIR 1963 Ori 111. 1 University of the Punjab, Lahore v. Jaswant Rai, (1946) 27 Lah 561. 2 S. Ajit Singh v. Ashwani Kumar, ILR (1954) Pun 359. 3 Mutsadilal v. Union of India, ILR (1955) Hyd 256 : AIR 1955 Hyd 81; Public Prosecutor v. D. Yenkata Narasayya, ILR (1957) AP 174 : AIR 1957 AP 486. 4 Sub-divisional Officer v. Raja Sri Niwas Prasad Singh, AIR 1966 SC 1164.

3. Sections 123 AND 124 There is clear distinction between Sections 123 and 124: Section 123 Section 124 1. No one shall be permitted to give evidence. No public officer shall be compelled to disclose. 2. Derived from unpublished official records. 3. They must relate to affairs of State. Communications made to him (Public Officer) in official confidence. 4. Except with the permission of the head of When he considers that public interest would suffer department concerned who shall give or withhold by the disclosure. such permission as he thinks fit. Section 123 covers all persons who receive evidence derived from unpublished official records whereas Section 124 covers only public officer to whom communications are made in official confidence. Under Section 123 the unpublished record must relate to affairs of the State where as

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under Section 124 the communications need not necessarily relate to affairs of State but must have been made in official confidence. But both the sections are based on public policy, i.e. , there should be possible injury to public interest from the disclosure of either unpublished official record relating to the affairs of the State or any communications made in official confidence. Under Section 123 it must be a document which is in the form of a record. But under Section 124 the communication may be oral or documentary. Under Section 123 it is only the head of the department concerned who can permit or withhold the permission to disclose the unpublished official record. Under Section 124 the official who receives the communication is the person concerned and not necessarily the head of department, who is competent to permit or withhold the disclosure of the communications. Sometimes 'Communications' which expression is used in Section 124 may relate to affairs of the State in which case Section 123 would apply. In such cases Section 124 is more or less supplementary to Section 123. In this connection Section 162 of this Act becomes relevant as it states that a witness once summoned to produce shall, if it is in his possession or power, bring it to court not withstanding any objection which there may be to its production or admissibility and the validity of any such objection shall be decided by the court. On its production, if the court thinks fit, it may inspect the document, unless it refers to matters of State, or take other evidence to enable it to determine its admissibility. The provisions contained in Sections 123 and 124 of the Evidence Act are supplementary to each other and are based on broad principles of public policy. The courts are to see that the officials of the State Government do not use the provisions as a mere cloak for withholding necessary and relevant evidence only to defeat a just claim of any party. Though an arbitrator does not constitute a regular court, he has to use sound judicial discretion and he may, in certain cases compel the production of documents, which he thinks, do not contain any evidence derived from unofficial records relating to the affairs of the State or are communications in official confidence. 5 A communication which is made to a public officer and which may relate to the affairs of the State would be covered by the Section 123 but if the official communication is made in official confidence and where the affairs of the State are not involved and if public interest would otherwise suffer by disclosure Section 124 shall apply. If a case falls under Section 124, the court can inspect the document in question and determine the claim of privilege. The returns submitted to an Income-tax Officer and a statement made to him cannot be said to be made in official confidence within the meaning of Section 124. 6 Reports made by one public officer to another in the discharge of his official duties would come both within the ambit of Section 123 and within the scope of Section 124. When the public officer to whom they are sent in official confidence considers that the public interest would suffer by their disclosure if they relate to matters relating to public policy, they come within the meaning of Section 123. In both Section 123 and 124 the court is the judge as to whether the documents in respect of which privilege is claimed is a State document or whether the communications was made in official confidence. Under Section 124 the court can inspect the document to determine the claim of privilege. If the document comes within the Section 123, the court cannot inspect it though it can take other evidence to determine the character attributed to the document. As regards the questions whether a disclosure will or will not be prejudicial to the public interest the head of the department concerned under Section 123 or the officer concerned under Section 124 is the judge and it would be final. 7 It was held by the Supreme Court that the privilege claimed by the State in regard to the departmental notings contained in official files should not be rejected except when the affidavit filed on behalf of the Government did not adequately bring out the involvement of public interest, consequent upon the disclosure of the notings. The High Court is to be confined to the particular facts of the case for rejecting the calling upon the Government to produce confidential notings in the official files, if the disclosure thereof is calculated to impair public interest. 8 Under Section 124 the public officer may waive a privilege in his own discretion without any reference to the Head of the Department. Whereas under Section 123, even if privilege is not claimed, the document cannot be admitted if public interest suffers. Mere marking as confidential does not by itself

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be the basis of claiming privilege under Section 124. But it must be further shown that the public interest would suffer by the disclosure of that document. 9 In cases of departmental enquiry the statements of witnesses during investigation by the C.I.D. do not come within Section 162,Cr.P.C. and the parties are not entitled to be given copies of those statements, the C.I.D. can claim privilege underSection 123 or 124. 10 Income-tax Officer in certain cases can be treated as a public officer and can claim privilege under Section 124. 11 The contention that this section applies only to an officer who received the document and it does not prevent producing that document, by the sender of the document, cannot be accepted as it would completely put at naught the provisions of Section 124. 12 5 Kapoor Nilokheri Co-op. Dairy Farm v. Union of India, (1971) 1 Punj 391. 6 Jethanand v. State of Rajasthan, 1972 Cr LJ 1496(Raj) ; B.R. Srinivasan v. B. Parakala Swamy Mutt, AIR 1960 Mys 186; Bhalachandra v. Chanbasappa, AIR 1939 Bom 237; Chiragh Din Md. Bakhsh v. Crown, 52 Cr LJ 161(Lah) . 7 State of A.P. v. Appanna, (1962) 2 CrLJ 649, relying on State of Punjab v. Sodhi Sukh Dev Singh, AIR 1961 SC 493; Nagarrja Pillai v. Secretary of State, AIR 1915 Mad 1113; Local Government Board v. Arlidge, 1915 AC 120; Gangaram v. Union of India, AIR 1964 Pat 444. The decision in State of Punjab v. S.S. Singh, 1961 SC 493supra was overruled in S.P. Gupta v. Union of India, 1982 SC 149 see commentary at the end of this section. 8 State of Orissa v. Jaganath Jona, AIR 1977 SC 2201. 9 Firm G. Mohi-ud-Din v. State of J&K, AIR 1961 J&K 20. 10 James Bushi v. Collector of Ganjam, AIR 1959 Ori 122. 11 Kader Kutty v. Agricultural Income-tax Officer, Tellicherry, AIR 1961 Ker 32. 12 1967 Cur LJ 488.

4. COMMUNICATIONS MADE IN OFFICIAL CONFIDENCE The first question that arises under this section is whether the communications in question was made to the public officer in official confidence. This is a condition precedent to the claim, and the question is to be primarily decided by the Court before whom the privilege is claimed. There is no clear cut rule of procedure as to when and how the privilege should be claimed. It would be claimed at the earliest opportunity by the public officer concerned when in reply to the summons he produces the document in his control or charge. 13 Communications in official confidence import no special decree of secrecy and no pledge or direction for its maintenance, but include generally all matters communicated by one officer to another in the performance of their duties. The question whether such communication was made in the course of such performance is for the court to decide. 14 A demi-official letter addressed by one officer by name to another officer by name, in view of the reasons for which demi-official letters are usually written, is written in official confidence within the meaning of this section. 15 If communications are not made in official confidence they cannot be regarded as privileged, e.g. , statements made to a station master of a railway in the course of an inquiry of a theft by some railway employees. 16 A Government resolution containing opinions of Government officers, including a legal adviser, is a privileged document within the meaning of this section. 17 A statement made to the Collector by the proprietors applying for taking over their estate by the court of Wards, showing the details of their property and liabilities, is a communication made to a public officer in official confidence within the meaning of this section and cannot be used as acknowledgement of any liability mentioned therein. 13 Bhalchandra v. Chanbasappa, (1938) 41 Bom LR 391 : AIR 1939 Bom 237. 14 Nagaraja Pillai v. Secretary of State, (1914) 39 Mad 304, 311 : AIR 1919 Mad 1113.

18

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15 Chandra Dhar Tewari v. Deputy Commissioner, Lucknow, (1938) 14 Luck 351 : AIR 1939 Oudh 65. 16 King-Emperor v. Bhagwati Prasad, (1929) 5 Luck 297. 17 Sursingji Dajiraj v. Secretary of State, (1926) 29 Bom LR 1213 : AIR 1926 Bom 590. 18 Collector of Jaunpur v. Jamna Prasad, (1922) 44 All 360 : AIR 1922 All 37.

5. OFFICIAL CONFIDENCE It was held that the words "Official Confidence" in Section 124 indicate that the section applies to communications from one public officer to another public officer in discharge of their official duties and not to communications to such officer by outsiders. 19 For the protection under Section 124 the communication in official confidence must be such as to involve a wilful confiding of secrets to avoid publicity by reason of the official position of the person in whom trust is reposed. 20 Where an enquiry is one under Section 176,Cr.P.C. the copies of depositions of witnesses taken in such an enquiry, should be furnished to the accused. The enquiry under police standing order 145 is not a statutory enquiry. As the enquiry is held in open and witnesses are examined in the presence of others, the question of privilege underSection 124 would not arise, and the communications made by any witness to the officer conducting the enquiry cannot be held to be in official confidence. 21 Accused has no right to the free or certified copies of statements of the witnesses made during the investigation of a different offence in an earlier investigation, as they are communications made in official confidence, to the investigating officer. 22 But the case diary maintained by the police is privileged, as it does not form part of the case record. 23 It was held in a defamation case, that the statements made before the police officer during the course of investigation is not absolutely privileged. 24 However in a defamation case it was held that the complaint made to a police officer is absolutely privileged. 25 In Chandradhar v. Deputy Commissioner, Lucknow, 26 it was held that the term 'public officer' in Section 124 must be construed to be an officer with public, as opposed to private, duties, who receives communications made to him in official confidence of such as nature that disclosure in certain cases would injure the public interest. The court of wards for the purpose of Section 124 should be taken as coming within the term public officer. 27 Opinions given by a Law Secretary who functions as a legal Remembrancer to the State, regarding the plaintiff's claim against the State and which are in the nature of advice given by the legal adviser to his client are privileged communications. 28 19 State of A.P. v. Appanna, (1962) 2 Cr LJ 649, relied on Nagaraja Pillai v. Secretary of State, AIR 1915 Mad 1113. 20 Ramanna v. Govt. of A.P., AIR 1971 AP 196. 21 In re : Subramanian Chettiar, 1967 Cr LJ 1232. 22 Suryamani Tarai v. State, 1967 AIR Ori 189; See also Jhumarlal v. State, AIR 1957 Raj 185; Purushotham v. State of Kutch, AIR 1954 SC 700; Gurbachan Singh v. State of Punjab, AIR 1957 SC 623. 23 Mahabirji v. Prem Narain, AIR 1965 Lah 494 relying on Emperor v. Dharam Vir, AIR 1933 Lah 498. 24 Maroti Sadashiv v. Narayan Rao, AIR 1959 Bom 443, see C ONTRA , Sanjivi v. Koneri, AIR 1926 Mad 521; Madhab Chandra v. Nirod Chandra, AIR 1939 Cal 477. 25 K. Ramadas v. P. Samu Pillai, (1969) 1 Mad LJ 338. 26 AIR 1939 Oudh 65. 27 Vishnomal v. Court of Wards, AIR 1928 Sindh 76; Queen-Empress v. Mathura Prasad (Manager of Court of Wards), 21 All 127, see C ONTRA , Nanda Lal Bose v. Ashutosh Ghose, AIR 1920 Cal 167 (case of Manager of Court of words). 28 Tirath Ram v. Govt. of J&K, AIR 1954 J&K 11.

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6. COMMUNICATIONS MADE IN OFFICIAL CONFIDENCE--SOME INSTANCES A statement made in a confidential departmental enquiry for gathering information by the department to guide them in future action, would be a case of communication made in official confidence. 29 A communication made by one Secretary to another Secretary of the Government is a communication in official confidence and privilege can be claimed. 30 Observations made by the High Court on a report of an enquiry officer against the conduct of a Judicial Officer, forwarded to the Governor are communications made in official confidence and are privileged. 31 The correspondence between superior authorities with regard to the confirmation or non-confirmation of a Government servant in a particular post are communications made in official confidence and they are privileged. 32 Statement made to a Collector by the proprietors applying for taking over their estates by the Court of wards, showing their financial position and their liabilities were held as communications made in official confidence. 33 A report from a Deputy Tahsildar to the Collector is a communication in official confidence. 34 29 In re : Suryanarayana Naidu, AIR 1954 Mad 278; B.R. Srinivasan v. B. Parakalaswamy Mutt, AIR 1960 Mys 180. 30 K.S. Venkatesam Naidu v. State of Madras, AIR 1959 Mad 335; State of A.P. v. Appanna, (1962) 1 An WR 256. 31 Md. Ilyas Alvi v. State of Maharashtra, AIR 1965 Bom 156. 32 Har Prasad Gupta v. State of U.P., AIR 1963 All 415. 33 Collector of Jaunpur v. Jamna Prasad, ILR 44 All 360 : AIR 1922 All 37. 34 In re : Makky Moithu, AIR 1943 Mad 278.

7. COMMUNICATIONS NOT IN OFFICIAL CONFIDENCE--INSTANCES Communications made by one officer to another in matters which arise out of commercial relations which subsist between the State on one side and a private citizen on the other, cannot be treated as communications made in official confidence. 35 The mere fact that the production of the document might adversely tell upon the fortunes of the litigants would not be sufficient to hold that the documents were made in official confidence, and that their disclosure would affect adversely the interest of the State. 36 Cables sent are not communications to public officer in official confidence. 37 Communications between officers empowered to impose penalty and the higher authorities with regard to assessment or penalty proceedings under the Income- tax Act cannot be said to be communications made in official confidence, and the authorities are not entitled to privilege under Section 124 because in law these authorities are not entitled to exchange opinions or give advice in regard to Judicial Proceedings. 38 A party to an action who had made a communication to the Government or to a head of the department is entitled to ask for its production. The Government or the head of the department has no right to claim any privilege in respect of such a document as it was not made in official confidence. 39 A valuation statement given by a Revenue Inspector on the basis of which the award was passed could not be said to be a communication made in official confidence. 40 Statements recorded during investigation by a police officer are not statements made in official confidence. 41 Particulars contained in the record of assessment are not made in official confidence. 42 A "handing over note" prepared by the Chief Engineer of a project in official discharge of his duties containing relevant facts and information regarding the questions involved in deciding a certain case, has no question of secrecy or confidentiality. 43 A distinction has to be drawn between cases where two citizens engaged in civil litigation want official communications to be disclosed at the time of the trial and the cases in which the State has entered into a commercial transaction with a private citizen in the course of which the State has made certain communications pertaining to the cases in which it is interested as a defendant or a plaintiff. In the former case the State not being interested either way a Government Officer is expected to keep before himself only the interests of public before a privilege is claimed, but in a case in which the State

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itself is a party, the court must be satisfied that the mind of the responsible officer has been applied to the question as to whether the safety of the public interest warrants giving or withholding of the information. The court must also be convinced that the privilege is not claimed to avoid inconvenient disclosure which may tell against its own side in the litigation, or as a matter of mere departmental routine. 44 35 Tirath Ram v. Govt. of J&K, AIR 1954 J&K 11. 36 Tirath Ram v. Govt. of J&K, AIR 1954 J&K 11. 37 Hussain Umar v. Dalipsinghji, AIR 1970 SC 45, 52. 38 Union of India v. Sheo Shankar Sitaram, (1974) 95 ITR 523(All) . 39 Firm Ghulam Mohi-ud-din v. State of J&K, AIR 1961 J&K 20. 40 Kunjanam Antony v. State of Kerala, AIR 1964 Ker 274. 41 Apparao v. Suryaprakasa Rao, AIR 1951 Mad 864; Tilka v. State, AIR 1959 All 543; In re : Subramaniam Chettiar, 1967 Cr LJ 1232; Mahabirji v. Prem Narain, AIR 1965 All 494; Soryamoni Tarai v. State of Orissa, AIR 1967 Ori 189. 42 Allah Bux v. Ratanlal Jain, AIR 1958 All 829. 43 Sathyanarayana Brothers (P.) Ltd. v. T.N.S.W. & D. Board, AIR 2004 SC 651 (para 16) : (2004) 5 SCC 314, reversing (2002) 1 Mad LJ 10. 44 Tirath Ram v. Govt. of J&K, AIR 1954 J&K 11.

8. PUBLIC INTEREST SHOULD SUFFER BY THE DISCLOSURE The second condition to the claim under Section 124 is that the disclosure of the contents of the communication to the public officer must in his opinion, be proved to be injurious or detrimental to public interest. The court must therefore apply its mind and peruse each document before disallowing any claim of privilege, as there may be portions of a document which cannot be disclosed without injury to public interest. Where the document is partly privileged and partly not, the court is neither competent nor justified to direct its production as it is really not in public interest to permit the production of such a document. It is only in cases where the court is satisfied that the disclosure of the contents of the document or information or statement would in any way injure or adversely affect public interest, the claim of privilege can be rejected, but not otherwise. The ingredients of Section 124 must be held to have been satisfied if the communication is made to a public officer either by a private citizen or another public officer in official confidence and if the public officer considers that the disclosure of the contents of the same would injure public interest. The very intention and purpose of Sections 123, 124 and 125 is to safeguard the interests of general public. Hence, the provisions of Section 124 must be construed liberally so as to take it within their ambit any communications made to public officer in official confidence irrespective of the person who communicates. 45 The public officer before claiming protection under Section 124 must come to a positive conclusion that by the disclosure of the communications public interest would suffer. He cannot claim protection under Section 124 on any other ground. 46 The government can claim privilege in respect of the file on which decision as to the appointment of the President of Customs, Excise and Gold Control Appellate Tribunal was made by it. 47 Where the report submitted by the police officer to the state Government after an inquiry in respect of illegal trade in kidney was summoned by the Magistrate in a defamation case filed by the authorities of the hospital on the basis of news published in newspapers and the Government claimed privilege that the report was confidential and it could not be published in public interest, it was held that its disclosure was not against the public safety and if at all the publication of report might affect the persons against whom materials were unearthed, the State was not entitled to safeguard their interest. 48

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45 Public Prosecutor, A.P. v. Pocku Syed Ismail, 1973 Cr LJ 931(AP) ; In re : Suryanarayana Naidu, AIR 1954 Mad 278; In re : Subramanian Chettiar, 1967 Cr LJ 1232(Mad) ; Kotah Match Factory v. State of Rajasthan, AIR 1970 Raj 118; Venkatesam Naidu v. State of Madras, AIR 1959 Mad 335. 46 B.R. Srinivasan v. B. Parakalaswamy Mutt, AIR 1960 Mys 186; Excelsior Film Exchange v. Union of India, AIR 1968 Bom 322. 47 R.K. Jain v. Union of India, AIR 1993 SC 1769 (paras 4 and 60). 48 State of Kerala v. T.P. Nandkumar, 2005 CrLJ 4469, 4477 (para 16) (Ker).

9. WHEN HE CONSIDERS THAT THE PUBLIC INTERESTS WOULD SUFFER BY THE DISCLOSURE The public officer claiming privilege has to exercise his own discretion in giving or refusing disclosure. 49 His decision must not be arbitrary or capricious. He should not claim privilege merely because such disclosure would either advance the case of the adversary or damage his case. This section must in no event be resorted to as a cloak to shield the truth from the Court. 50 49 Jehangir v. Secretary of State, (1903) 6 Bom LR 160; King-Emperor v. Bhagwati Prasad, (1929) 5 Luck 297. 50 Excelsior Film Exchange v. Union of India, (1966) 69 Bom LR 878 : AIR 1968 Bom 322.

10. WHO IS TO DECIDE? Under Section 124 whether the communication in question was made in official confidence is a matter for the court to decide. 51 It was held by V ENKATASUBBRAO J., that there are two matters involved in this section. Firstly , whether a particular document for which the privilege is claimed falls within it, i.e. whether the document is a communication made to a public officer in official confidence. On a proper construction of the section, it is for the court to decide that question. Secondly , if the court decides that the document is of the nature contemplated by the section, then the public officer himself is the sole judge as to whether by its disclosure public interest would suffer. (that alone being the ground of privilege). 52 This distinction of deciding the two matters involved in this section was drawn earlier in Venkatachela Chetty v. Sampathu Chetty 53 . In all these above cases it was held that the second question, namely whether disclosure of the communication results in public interest being harmed (would suffer) is to be decided by the public officer concerned. However, the Supreme Court held that the court has the inherent power to look into the document and decide and the head of the department is not the sole judge to decide that question. 54

In view of the decision in Gupta's case the decisions above referred to insofar as they decide that the decision of the officer concerned whether the disclosure by the communication is in public interest is final and cannot be received by the Court are no longer good law. It is open to the Commissioner of Income-tax to claim privilege in respect of a document summoned by the Court but it is Court which has to decide whether the privilege can be granted or refused. 55 See Commentary under Section 123. 51 B.R. Srinivasan v. B. Parakalaswamy Mutt, AIR 1960 Mys 186; Thirath Ram v. Government of J&K, AIR 1954 J&K 11; Kunjanam Antony v. State of Kerala, AIR 1964 Ker 274; State of Kerala v. Midland Rubber and Products Co., 1971 Ker 228; Kunjannam v. State of Kerala, (1964) 2 Ker 83; Brijnath Kerdarnath v. State of M.P., 1957 Cr LJ 134; In re : Suryanarayana Naidu, AIR 1954 Mad 278; Gangaram v. Union of India, AIR 1964 Pat 444; Public Prosecutor v. Pocku Syed Ismail, 1973 Cr LJ 931. 52 Vythilinga Pandarasannidhi v. Secretary of State, 1953 Mad 342.

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53 ILR 32 Mad 62; Nagaraja Pillai v. Secretary of State, AIR 1915 Mad 1113; Collector of Jaunpur v. Jamnaprasad, ILR 44 All 360 : AIR 1922 All 37; In re : Mantu Bhai Mehta, AIR 1945 Bom 122; Bhalchandra v. Chanbasappa, AIR 1939 Bom 237; Chandra Dhar v. Deputy Commissioner, Lucknow, AIR 1939 Oudh 65; Tirath Ram v. Govt. of J&K, AIR 1954 J&K 11; In re : Suryanarayana Naidu, AIR 1954 Mad 278; State of Punjab v. Sodhi Sukhdev Singh, AIR 1961 SC 493. 54 S.P. Gupta v. Union of India, AIR 1982 SC 149 following the earlier case in Union of India v. Rajnarayana, AIR 1975 SC 865. See also Central Bureau of Investigation v. Ashok Kumar Aggarwal, (2007) 10 SCC 736, 741 (paras 13 and 14) : (2007) 4 JT 351. 55 Debasis Sahu v. Nabeen Chandra Sahu, AIR 2002 Ori 211, relied on Dagiram Pindilall v. Trilokchand Jain, AIR 1992 SC 990, 997 and S.P. Gupta v. Union of India, AIR 1982 SC 149 : (1991) 2 SCC 263.

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Ratanlal & Dhirajlal: Law of Evidence, Updated 23rd Edition/THE INDIAN EVIDENCE ACT (ACT 1 OF 1872)/PART III PRODUCTION AND EFFECT OF EVIDENCE/CHAPTER IX OF WITNESSES/S. 125.

CHAPTER IX OF WITNESSES S. 125. Information as to commission of offences. No Magistrate or Police-officer, shall be compelled to say whence he got any information as to the commission of any offence, and no Revenue-officer shall be compelled to say whence he got any information as to the commission of any offence against the public revenue. Explanation. --"Revenue-officer" in this section means any officer employed in or about the business of any branch of the public revenue. 1. PRINCIPLE AND SCOPE

This section which provides that no Magistrate or Police Officer shall be compelled to say whence he got any information as to the commission of an offence and that no Revenue Officer shall be compelled to say whence he got any information as to the commission of any offence against the public revenue, is based on public policy. It is of importance to the public for the detection of crimes that those persons who are the channel by means of which the detection is made should not be unnecessarily disclosed. "It is perfectly right, that all opportunities should be afforded to discuss the truth of the evidence given against a prisoner, but there is a rule which has universally obtained on account of its importance to the public for the detection of crimes, that those persons, who are the channel by means of which the detection is made, should not be unnecessarily disclosed." 56 The section places a prohibition on compelling the Magistrate, Police Officer or Revenue Officer to say from which source he had the information referred to in the section. It appears therefore that he can give the information if he is so willing in which case he waives the privilege. 57 Thus a Magistrate or Police Officer or Revenue Officer has the discretion to give out such information as to the commission of the offence or not. But under the English Law it is the duty of the Judge to exclude such information whether any objection is taken by the witness, or not, if it is detrimental to the public interest. But if the Judge feels that such exclusion results in miscarriage of justice, he may relax the rule. 58 The above principle was adopted by W OODROFFE J., who observed: "Though the section (Section 125) does not in express terms prohibit the witness, if he be willing, from saying whence he got the information, both the English authorities from which the rule is taken and a consideration of the foundation to the rule show that the protection should not be made to depend upon a claim of privilege being put forward, but that it is the duty of the judge, apart from objection taken, to exclude the evidence. A fortiori if objection is taken, it cannot, since the law allows it, be made the ground of adverse inference against the witness." 59 The Allahabad High Court observed: " Section 125 entitles a Police Officer to refuse to disclose the source of his information as to the commission of any offence, while public policy demands that no adverse inference be drawn against the prosecution for withholding an information from the witnessbox." 60

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It is absolutely essential to the welfare of the State that the names of spies, decoys or informers should not be divulged; for, otherwise, be it from fear, or shame, or the dislike or being mixed up in enquiries of this nature, few men would choose to assume the disagreeable part of giving or receiving information respecting offences, and the consequence would be that a great many crimes would pass unpunished. 56 Per E YRE , L ORD C HIEF J USTICE in R v. Hardy, (1794) 24 How. St. Tr. 199. see T AYLOR , 939; Amrita Lal Hazra v. Emperor, ILR 42 C 957 : 29 IC 513 : 16 Cr. LJ 97. 57 Mahamed Ally v. Emperor, 12 Cr LJ 277. 58 Marks v. Beyfus, (1890) 25 QBD 494 CA; Hennesey v. Wright, (1888) 21 QBD 509. 59 Weston v. Peary Mohan Dass , ILR 40 Cal 898. 60 State of U.P. v. Randhir Sri Chand, AIR 1959 All 727, following Home v. Bentick, (1820) 2 B&B 162.

2. SOURCE OF INFORMATION What is prohibited under the section is the disclosure of only the source of information as to the commission of offence. In England the law is different. The rule protects not only the names of the persons by, or to, whom the disclosure was made, but the nature of the information given, and any other question as to the channel of communication or what was done under it. 61 Thus the witness cannot be asked whether he himself was the informer 62 or even by whom he had been advised to communicate his information to the authorities 63 nor can a police constable be cross-examined as to what passed between himself and his superior officer 64 ; or as to inquiries made in the course of his duties. 65 A witness may, however, be asked whether the person to whom he made the communication was a Magistrate or not 66 ; and a constable has been compelled to disclose in which house he was secreted whilst watching licensed premises kept open after hours. 67 In Sarkar's Law of Evidence (1990 Re-print of 13th Ed., p. 1236) it is however observed "The law does not appear to be otherwise in India. 'Information' must necessarily include not only names of persons but also the nature and source of information. It includes all questions relating to the channel through which the detection is made. If information is confined to names only, the rule would be infructuous. But the privilege does not apply to the contents of the statement, for the contents of the communication must necessarily be disclosed while prosecuting the offender." The Madras High Court held that Section 125 contemplates only the prohibition of the source from whom the Magistrate or the Police Officer got the information as to the commission of the offence and not as to the custody of any documents or other material objects, that might have been seized and that might be tendered in evidence in support of the commission of the offence. 68 Section 125 secures privilege for a Magistrate or a Police Officer to refuse to say whence he got any information as to the commission of any offence. The FIR is not a privileged document to get any protection under Section 125. 69 This section has no application to an informer who lays sworn information and thereby initiates criminal proceedings. 70 If in asking for the production of a complaint the object is to ascertain the informer's name, the complaint can be refused to be produced. 71 Section 162,Cr PC prohibits the use of statement of a witnesses recorded by the Police Officer except for contradicting the statement of the witness. UnderSection 125, a Police Officer cannot be compelled to say as to how he got the information relating to the commission of any offence. Under Section 91, Cr PC, (Section 94 old) the discretion for production of a document should be exercised so that it may not come into conflict with the policy of Section 125. 72 61 R. v. Hardy, (1794) 24 How. St. Tr. 199; R v. Watson, (1817) 32 How. St. Tr. 82; Marks v. Beyfus, ante; Auten v. Rayner, (1958) 1 WLR 1300. 62 Att.-Gen. v. Briant, (1846) 15 M&W 169. 63 R. v. Hardy, ante.

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64 R. v. Herlihi, (1898) 32 Ir. LT 38. 65 R. v. Carpenter, (1911) 156 C.C.C. Sess. Pap. 261, per C HANNELL J. 66 Ibid. 67 Webb v. Catchlove, (1886) 3 TLR 159. 68 Public Prosecutor v. M. N. Govindaraja Mudaliar, AIR 1954 Mad 1023. 69 Munnasingh Tomar v. State of M.P., 1989 Cr LJ 580(MP) (DB). 70 Liladhar v. Emperor, (1915) 16 Cr LJ 447. 71 Bagumal v. Emperor, (1917) 18 Cr LJ 70. 72 R. v. Bilal Mahommed, ILR 1940 Bom 768.

3. POLICE OFFICER A prohibition officer under the Prohibition Act is a Police Officer only for the purpose of Section 125 and not for any other purpose. 73 (Excise Inspector empowered under the Opium Act can claim privilege as a Police Officer). It may be noted that for purpose of Section 25 of this Act (relating to Confession) it was held that a prohibition officer is not a Police Officer. 74 A Police Officer can not be questioned as to the source from which he got information. He can not say that from a source he learnt that certain persons were going to commit dacoity in a certain locality, because it would be hearsay evidence, and is inadmissible. 75 Where a Magistrate suggested that the spy should have been examined, it was held that he ignored the provisions of Section 125 which provides that no Magistrate or Police Officer shall be compelled to disclose the source of information as to the commission of an offence. 76 The accused is not entitled to elicit from a prosecution witnesses whether he was a spy or an informer, or discover from police officials the names of persons from whom they had received information; but a detective cannot refuse, on grounds of public policy, to answer a question as to where he was secreted. 77 73 Public Prosecutor v. Shaik Dawood, AIR 1957 AP 977; State of Kerala v. Chacka, (1967) 2 Ker 687. 74 In re : Venkata Reddy, AIR 1948 Mad 116; Srinivasa Narasimha v. State, 1954 Mad WN 659. 75 Sitaram Mahato v. State, (1957) 2 Cal 57. 76 State of U.P. v. Dhanpati, AIR 1960 Pat 582. 77 Amrita Lal Hazra v. Emperor, (1915) 42 Cal 957 : AIR 1916 Cal 188.

4. NO ADVERSE INFERENCE IF OBJECTION IS RAISED If objection is taken, it cannot, since the law allows it, be made a ground of adverse inference against the witness. 78 78 Weston v. Peary Mohan Dass, (1912) 40 Cal 898, 920.

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Ratanlal & Dhirajlal: Law of Evidence, Updated 23rd Edition/THE INDIAN EVIDENCE ACT (ACT 1 OF 1872)/PART III PRODUCTION AND EFFECT OF EVIDENCE/CHAPTER IX OF WITNESSES/S. 126.

CHAPTER IX OF WITNESSES S. 126. Professional communications. No barrister, attorney, pleader or vakil shall at any time be permitted, unless with his client's express consent, to disclose any communication made to him in the course and for the purpose of his employment as such barrister, pleader, attorney or vakil, by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment, or to disclose any advice given by him to his client in the course and for the purpose of such employment: Provided that nothing in this section shall protect from disclosure-29)   any such communication made in furtherance of any illegal purpose; 27)   any fact observed by any barrister, pleader, attorney or vakil, in the course of his employment as such, showing that any crime or fraud has been committed since the commencement of his employment. It is immaterial whether the attention of such barrister, pleader, attorney or vakil was or was not directed to such fact by or on behalf of his client. Explanation . --The obligation stated in this section continues after the employment has ceased. ILLUSTRATIONS 15a)   A , a client, says to B , an attorney--"I have committed forgery and I wish you to defend me." As the defence of a man known to be guilty is not a criminal purpose, this communication is protected from disclosure. 16b)   A , a client, says to B , an attorney--"I wish to obtain possession of property by the use of a forged deed on which I request you to sue." This communication, being made in furtherance of a criminal purpose, is not protected from disclosure. 7c)   A , being charged with embezzlement, retains B , an attorney, to defend him. In the course of the proceedings, B observes that an entry has been made in A's account book, charging A with the sum said to have been embezzled, which entry was not in the book at the commencement of his employment. This being a fact observed by B in the course of his employment, showing that a fraud has been committed since the commencement of the proceedings, it is not protected from disclosure. 1. PRINCIPLE AND SCOPE

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Sections 126 to 129 deal with the privilege that is attached to professional communications between the legal adviser and the client. Sections 126 and 128 mention the circumstances under which the legal adviser can give evidence of such professional communications. Section 127 provides that interpreters, clerks or servants of legal advisers are restrained similarly. Section 129 says when a legal adviser can be compelled to disclose the confidential communication which has taken place between him and his client. Under this section no barrister, attorney, pleader or vakil shall any time be permitted to: 30)   disclose (i) any communication made to him by or on behalf of his client or (ii) any advice given by him to his client in the course and for the purpose of his employment; 28)   to state the contents or conditions of any document with which he has become acquainted in the course and for the purpose of his employment. The section does not protect from disclosure-31)   any communication made in furtherance of any illegal purpose; 29)   any fact observed in the course of employment showing that any crime or fraud has been committed since the commencement. This section is based upon the principle that if communications to a legal adviser were not privileged, a man would be deterred from fully disclosing his case, so as to obtain proper professional aid in a matter in which he is likely to be thrown into litigation. 79 The section not only protects the legal adviser from disclosing communications made to him by his client when interrogated as a witness, but he is not permitted to do so even if he is willing to give evidence unless with the express consent of his client. Section 126 has been enacted for the protection of the client and not of the lawyer. And it is founded on the impossibility of conducting legal business without professional assistance and on the necessity, of securing full and unreserved intercourse between the two, in order to render that assistance effectual. The privilege is the privilege of the client and not of the legal advisor. The latter is therefore bound to claim the privilege unless it is waived by his client expressly under Section 126 or impliedly under Section 128,e.g. by examining the legal advisor as to the privileged communication. 80 In H ALSBURY L AWS OF E VIDENCE , 4th Ed., Vol. 17, Para 237, page 166 it is observed: "Confidential communications passing between a client and his legal adviser and made for the purpose of obtaining or giving legal advice are in general, privileged from disclosure. The privilege is available in respect of the oral testimony of witnesses, and the principles which determine whether a communication is or is not privileged are the same for both oral and written communications. The privilege is that of the client and may be waived by him." In P HIPSON ON E VIDENCE , 15th Edn. (2000), Paras 20-04, 20-05 and 20-06, Pages 506-507 it is observed: "In Wheeler v. Le Marchant, 81 J ESSEL M.R. analysed legal professional privilege as a manifestation of the principle protecting confidentiality, distinguishing for this purpose between communications with a lawyer which do enjoy this protection and communications with a doctor, priest or confidant, which do not. The protection is restricted to the obtaining of legal advice and assistance and all things reasonably necessary in the shape of communication to the legal advisers are protected from production or discovery in order that that legal advice may be obtained safely and sufficiently. The policy justifying a rule "which protects confidential communications from discovery as regards the other side" was described by J ESSEL M.R. in Anderson v. Bank of British Columbia 82 as follows : "The object and meaning of the rule is this: that as, by reason of the complexity and difficulty of our law, litigation can only be properly conducted by professional men, it is absolutely necessary that a man, in order to prosecute his rights or to defend himself from an improper claim, should have resource to the assistance of professional lawyers, and being so absolutely necessary, it is equally necessary, to use a vulgar phrase, that he should be able to make a clean breast of it to the gentleman whom he consults with a view to the prosecution of his claim, or the substantiating [of] his defence against the claim of others; that he should be

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able to place unrestricted and unbounded confidence in the professional agent, and that the communications he so makes to him should be kept secret, unless with his consent (for it is his privilege, and not the privilege of the confidential agent) that he should be enabled properly to conduct his litigation. That is the meaning of the rule. "

The historical development of legal advice privilege is reviewed in detail in R. v. Derby Magistrates ex p. B. 83 Confidential communications between a lawyer and client which come into existence for the purpose of giving or getting legal advice are privileged at all times. The privilege may be asserted by successors in title. It covers direct communications and communications through agents. It covers all documents generated for the purpose of giving or getting legal advice, not merely letters to and from solicitors and instructions to and opinions from counsel, but also all working papers and drafts. The privilege exists whether or not litigation is contemplated or pending. The second category of legal professional privilege is wider than the first but arises only when litigation is in prospect or pending. From that moment on, any communications between the client and his solicitor or agent or between one of them and a third party will be privileged if they come into existence for the sole or dominant purpose of either giving or getting advice in regard to the litigation or collecting evidence for use in the litigation. This is the basis for claiming privilege for correspondence with witnesses of fact or experts and proofs, reports or documents generated by them. The rule was stated by J AMES L.J. in Anderson v. Bank of British Columbia 84 : ". . .as you may have no right to see your adversary's brief, you have no right to see that which comes into existence merely as materials for the brief . . ."

A more modern rationalisation was set out by D ONALDSON M.R. in Lee v. South West Thames Health Authority 85 : "The principle is that a defendant or potential defendant shall be free to seek evidence without being obliged to disclose the result of his researches to his opponent."

In order for litigation privilege to apply, there must be a confidential communication between client or lawyer or agent, or between one of these and a third party made for the dominant purpose of use in litigation, that is, to seek or provide information or evidence to be used in or in connection with litigation in which the client is or may become a party and when litigation is either in process or reasonably in prospect." The rule is established for the protection of the client, not of the lawyer; and is founded on the impossibility of conducting legal business without professional assistance, and on the necessity, in order to render that assistance effectual, of securing full and unreserved intercourse between the two. 86

79 Greenough v. Gaskel, (1833) 1 Myl & K 98. 80 Ayasha Bi v. Peer Khan Sahib, AIR 1954 M 741. 81 (1881) 17 Ch D 675, 681. 82 (1876) 2 Ch D 644, 649. 83 (1996) 1 AC 487. 84 (1876) 2 Ch D 644, 676. 85 (1985) 1 WLR 845, 850.

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86 Jones v. Great Central Ry., (1910) AC 4, 5; Lyell v. Kennedy, (1884) 9 App. Cas. 81, 86; Wheeler v. Le Merchant, (1881) 17 Ch. D. 675, 681-682, Waugh v. British Railway Board, (1980) AC 521(HL) per L ORD W ILBERFORCE at p. 531 CF).

2. PRIVILEGE MAY BE WAIVED The privilege, therefore, may be waived by the client, but not by the adviser. Nor can the latter claim the benefit of the privilege.

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1

In P HIPSON ON E VIDENCE 15th Edn. (2000), para 20-07, page 508 it is observed: "The rule is established for the protection of the client, not the lawyer. It follows from this that the privilege can be waived by the client but not the lawyer. 2 The lawyer is under a professional obligation to assert the privilege until it is waived by the client. 3 Thus the lawyer has no locus to assert the privilege in his own right or commence proceedings in his own name for that purpose. 4 Nor can the lawyer invoke the privilege or use it for his own benefit if the client waives it. 5 Nor can the person to whom a litigant communicates under the cloak of litigation privilege claim to rely on it." 6 87 Wilson v. Rastall, (1792) 4 TR 758; Proctor v. Smiles, (1886) 55 LJQB 527(CA) ; Re, Cameron's Co., 25 Beav. 1, 4; R. v. Leverson, ante; Humphrey v. Wake, (1917) 33 TLR 433. 1 Cf. Haywood v. Wegg-Prosser, (1978) 122 SJ 792 which is either incompletely reported or rests on a confusion between the privilege against the production of documents and privilege as that term is used in the law of defamation. 2 Wilson v. Rastall, (1792) 4 TR 753, cited in Derby Magistrates ' Court by Lord T AYLOR C.J. 3 R. v. Centrai Criminal Court, ex p. Francis & Francis, (1989) 1 AC 346, 381, per Lord G RIFFITHS ; Proctor v. Smiles, (1886) 55 LJQB 527. 4 Abbey National v. Clive Travers, May 19, 1999 CA; R. v. Central Criminal Court, ex p. Francis & Francis, (1989) 1 AC 346. 5 Re International Power Industries, (1985) BCLC 128, where the lawyer sought to rely on the privilege in answer to a personal subpoena despite the fact that client had waived it. 6 Schneider v. Leigh, (1955) 2 QB 195; Lee v. South West Thames Health Authority, (1985) 1 WLR 845.

3. BARRISTER, ATTORNEY The restrictions imposed by this section extend also to communications made to Mukhtears when acting as pleaders for their clients. 7 In H ALSBURY ' S L AWS OF E VIDENCE , 4th Edn., Vol. 17, para 237, page 166 it is stated: "Salaried legal advisers act ing as such are in the same position for the purposes of this rule as independent legal advisers. 8 This rule was followed in Bombay Municipal v. Vijay Metal Works, 9 Foreign Legal advisers are in the same position, Duncan Garfield v. Jay . Law Officers have been held to be within the scope of the section. insurer and his counsel are also privileged. 11

10

Communications between an

Opinion given by a Law Secretary who functions as a legal remembrancer to the State, regarding the plaintiff's claim against the State and which are in the nature of an advice given by the legal adviser to his client are privileged. 12 If an attorney discloses the facts which came to his knowledge while he was engaged as an attorney, he will be guilty of professional misconduct. 13 In P HIPSON ON E VIDENCE , 13th Ed., Para 15.09, Page: 296 it is stated: "The privilege attaching to confidential professional disclosures is confined to the case of legal advisers. This term certainly embraces salaried legal advisers. Amusement Machines Ltd. v. Customs and Excise Commissioners . 14 (The point was conceded in the House of Lords), and it may be that it goes further and includes any

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person to whom resort is made for specifically legal advice, notwithstanding that that person has no formal legal qualifications. 15 Foreign legal advisers are certainly within the scope of the privilege. 16 The communication made to the advocate by the client in furtherance of his illegal purpose (here obtaining decree on a forged promissory note) is not privileged. 17 The evidence of a practising lawyer that he was living half a kilometer away from the place of occurrence and the accused alone had gone to his house on the intervening right does not fall under this section and were, therefore, admissible. 18 Where an advocate was sought to be summoned to prove sending of notice to the defendant, claiming privilege in respect of it was not permissible as the contents of the said notice were not confidential as the same was already communicated. 19 It is a settled position of law that a lawyer does not have a sacrosanct right to withhold information regarding crime under the guise of professional ethics. He cannot claim a right over professional communication beyond what is permitted under this section. 20 7 Abbas Peada v. Queen-Empress, (1898) 25 Cal 736. 8 Alfred Crompton Amusement Machines Ltd. v. Customs and Excise Commissioners, (No 2) (1972) 2 QB 102 : (1972) 2 All ER 353 at 371, CA; affirmed on other grounds (1974) AC 405 : (1973) 2 All ER 1169, HL. 9 1982 Bom 60. 10 M.C. of Greater Bombay v. Vijay Metal Works, AIR 1982 Bom 6. 11 R. Ramalingam v. P.R. Thakur, AIR 1982 Del 486. 12 Tirath v. Government of Jammu, AIR 1954 J&K 11. 13 In re : An Attorney, (1924) 26 Bom LR 887, FB : 1925 All 1(FB) . 14 Crompton (Alfred) Amusement Machines Ltd. v. Customs and Excise Commissioners, (1972) 2 QB 102(CA) : (1972) 2 All ER 353. 15 M.W. Graxebrook Ltd. v. Wallens, (1973) 1 CR 256(NIRC) . 16 Mac Farlan v. Rolt, (1872) LR 14 EQ. 580; Great Atlantic Insurance Co. v. Home Insurance Co., (1981) 2 All ER 485(CA) . 17 Gurunanak Provisions Stores v. Dulhonumal Savanmal, AIR 1994 Guj 31 (para 23). 18 V. Ravi v. State of Kerala, 1994 Cr LJ 162 (para 26) (Ker), distinguishing Hakam v. Emperor, AIR 1934 Lahore 269 : 1935 (36) Cr LJ 31. 19 P.G. Anantasayanam v. Miriyala Sathiraju, AIR 1998 AP 335 (para 2). 20 People's Union for Civil Liberties v. Union of India, (2004) 9 SCC 580, 603 (para 38) : AIR 2004 SC 456.

4. CHARTERED ACCOUNTANT Where a Chartered Accountant disclosed the information acquired in the course of his professional engagement without the consent of his client, a bank, to third parties, he was held to be guilty of professional misconduct. 21 21 Council of the I.C.A.I. v. Mani S. Abraham, AIR 2000 Ker 212 (para 6).

5. JOURNALIST It is settled position of law that a journalist does not have a sacrosanct right to withhold information regarding crime under the guise of professional ethics. There is also no law that permits a newspaper or a journalist to withhold relevant information from Courts though they have been given such power by virtue of Sections 15(2) of the Press Council Act , 1978 as against the Press Council. Of course the

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investigating officers will be circumspect and cautious in requiring them to disclose information. In the process of obtaining information, if any right of a citizen is violated, nothing prevents him from resorting to other legal remedies.22 22 People's Union for Civil Liberties v. Union of India, (2004) 9 SCC 580, 603 (para 38) : AIR 2004 SC 456, relying on M.S.M. Sharma v. Sri Krishna Sinha, AIR 1959 SC 395; Sewakram Sobhani v. R.K. Karanjia, (1981) 3 SCC 208; Arnold v. King Emperor, (1913-14) 41 IA 149 : 15 CrLJ 309; British Steel Corpn. v. Granada Television, (1981) 1 All ER 417 : 1981 AC 1096 : (1980) 3 WLR 774; Branzburg v. Hayes, 408 US 665 : 33 L Ed 2d 626 (1972).

6. AT ANY TIME These words indicate that the legal adviser is not to disclose the communication even when the relation is ended or even after the client's death. The rule is "once privileged always privileged" 23 The explanation to the section clearly shows this. The privilege continues throughout and does not get terminated by the termination of the litigation or the death of the parties. 24 This section imposes secrecy of the communications even after the employment has ceased, in view of the explanation under the section, and it has nothing to do whether at the time of making the communications there was any pending litigation or any prospect of it. 25 But the communication must have been made during the subsistence of the relationship between the legal adviser and the client. 26 And such privilege continues even when the client dies 27 and ensures for the benefit of successors of the client in any act ion when the relevant interest subsists. 28 Privilege extends to communications made in contemplation of a suit.

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23 Per C OCKBURN CJ in Bullock v. Corrie, (1878) 3 QBD 356. 24 Ayeasha Bi v. Peerkhan Sahib, 1954 M 741; Bullock v. Corrie, (1878) LR 3 QBD 356--once prvileged always prvileged. 25 In re : An Attorney, (1924) 26 Bom LR 887(FB) : AIR 1925 Bom 1; Moti Bai v. State of Rajasthan, AIR 1954 Raj 241. 26 Minter v. Priest, (1930) AC 558. 27 Bullivant v. Attorney-General for Victoria, (1901) AC 196. 28 Schneider v. Leigh, (1955) 2 All ER 173. 29 Gansford v. Grammer, (1809) 2 Comp 9 but run in consultation in vague amherpation of Cromption (Alfred) Amusement Mechines Ltd. v. Customs and Excise Commissioners, (1972) 3 All ER 353(CA) .

7. TO DISCLOSE Communications protected by the section must be confidential. The word 'disclose' shows that the privileged communication must be of a confidential or private nature. 30 The word 'disclosure' implies that which was not already made known to others. If the communication by the client to the advocate is put in the form of a notice and that notice is produced in court in a defamation case, there is already a disclosure. So when the advocate is called upon to prove that notice he is not disclosing any fact for the first time, but is only substantiating what is already disclosed. Section 126, therefore does not stand in the way of summoning the advocate for this purpose. 31 30 Framji Bhicaji v. Mohansingh Dhansingh, (1893) 18 Bom 263, 272; Memon Hajee Haroon Mahomed v. Moulvie Abdul Karim and Moola Ahmed Molla Abdulla, (1878) 3 Bom 91; Emperor v. Rodrigues, (1903) 5 Bom LR 122; Kalikumar Pal v. Rajkumar Pal, (1931) 58 Cal 1379 : AIR 1932 Cal 148. 31 P. Rajamma v. P. Chantiah, (1972) 2 An WR 253.

8. ANY COMMUNICATION

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It is not every communication made by a person to his legal adviser that is privileged from disclosure. The privilege extends only to communications made to him confidentially, and with a view to obtaining professional advice. 32 This rule covers only the private and confidential communication between the client and the lawyer, which cannot be disclosed either by means of direct questions or elicited by means of indirect tactics. It does not preclude the lawyer from replying to the opposite party who wants to proceed against him for stating that what all he did was in pursuance of the instructions given to him and not on his own volition. The rule under Section 126 does not require that a lawyer should vicariously make himself responsible for an offence which he never committed. And in any event he will not be advancing his client's cause by remaining mute since in that case it is a fair inference to draw that what he did was either in violation or in excess of the instructions given to him. 33 Where the imputation concerning a third person was made by a lawyer in the presence of his client, the protection under Section 126 would not arise. 34 Communication to a third person in lawyers presence is not privileged. 35 The section applies as much to what a witness has learned by observation, e.g. , by watching a manufacturing process being carried on, as to what is communicated to him by word of mouth or writing. 36 32 Framji Bicaji v. Mohansingh Dhansingh, (1893) 18 Bom 263; Emperor v. Bala, (1902) 4 Bom LR 460; Park Horst v. Lowthen, (1819) 2 Swanst 194--P A L ORD E LDOW The moment confidence ceases, privilege ceases. 33 Ayeasha Bi v. Peer Khan Saheb, AIR 1954 Mad 741. 34 Rebecca Mohdal v. R, AIR 1947 Cal 278. 35 Hanson v. Bran, (1892) 51 Minn 546. 36 Gopi Lal v. Lakhpat Rai, (1918) 41 All 125 : AIR 1918 All 38.

9. IN THE COURSE AND FOR THE PURPOSE OF HIS EMPLOYMENT The privilege applies to all communications oral or documentary in the course of or for the purpose of the employment as legal advisor. 37 It was observed: "The Privilege extends to all communications between client and legal adviser in the course and for the purpose of his professional employment. If the communication is not made to a legal adviser in the course of professional employment, it does not matter if it was made under seal of secrecy. A mere gratuitous communication is not protected, it must be made to a person as professional adviser. Consultation as a friend is not sufficient. The privilege does not apply to communications made before the existence of the relationship or after it has ceased." 38 A widow who wanted to adopt a son employed an attorney for the purpose of drawing up an adoption deed. After the draft was drawn up, it was approved by another independent firm of attorneys on behalf of the boy to be adopted. In a suit filed by a Bank for recovery of money alleging that the adoption was invalid, the attorney produced some papers including the draft adoption deed and also made some statements regarding the instructions he had from the widow. It was held that if the attorney was acting for the widow alone, the disclosures made by him were contrary to Section 126; if it is taken that the attorney was engaged by the widow and also the adopted son, it would not be open to the attorney to disclose the facts relating to the documents in the suit brought by the third party (bank) against the widow's husband, and the adopted boy; even if the negotiations for adoption took place in the presence of the friend of the widow, it would not relieve the attorney from his obligation. 39 The privilege attaches only if the opinion was given professionally. Even if the services were rendered without fee, still the communications would be privileged. Whether an opinion was given professionally or in a friendly capacity or otherwise is a matter of fact to be inferred from circumstances, such as the local habits of life and other cognate matters. In Green Law v. King 40 L ORD L ANGDALE MR held that the correspondence with the solicitor was as a confidential friend but not in his professional capacity and therefore not privileged. Lively, J. stated in Woodrum v. Price 41 regarding communication with an attorney friend that it was common knowledge

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that lawyers were consulted in the rural areas for gratuitous information without any suggestion of employment as lawyer. These opinions are called "Curbstone" or "Horseback" opinions. In such cases the burden is on the objector to show that the relationship of client and lawyer existed. 37 Ayeasha Bi v. Peerkhan Saheb, AIR 1954 Mad 741. 38 Greenough v. Gaskell, (1833) 1 Myl. & K 101. 39 In re : An Attorney, AIR 1925 Bom 1(FB) . 40 (1838) 1 Beav 137. 41 (1927) 104 W. Vr 382 : 140 SE 346.

10. TIME OF CONSULTATION--REJECTION OR RETENTION The privilege of the client attaches to a communication that his lawyer makes during negotiations in relation to the retainer for fee. On principle, the client must be protected in his preliminary statements for he does not know whether the attorney would accept the fee suggested by him. Even if the lawyer refuses to work for him for the fee suggested by the client, still privilege attaches to the communication made during such a negotiation. It does not matter that the lawyer's refusal for the retainer was due to disagreement as to the fee suggested by the client or was due to the client's own withdrawal by reason of the large fee demanded by the lawyer. In Minter v. Priest 42 the solicitor ultimately declined to work for the client but the communication by the solicitor during an interview with the person requesting him to act, was held privileged. This decision is still good law though on appeal, it was reversed on other grounds by the House of Lords. However, if the client continues his communication even after the attorney's refusal to act for him, or if a person knowingly admits to retain one who has already been retained by the opponent and consequentially not retainable by him, he does not need or deserve the protection of the privilege. The communication of a client seeking to retain an attorney who declined because of a prior retainer on the other side was held not privileged. 43 (From the paper read by Justice M. J AGANNADHARAO at the workshop organised by the A.P. State Bar Council at Visakhapatnam in May 1984). 42 (1921) 1 KB 655. 43 Tukker v. Pinch, (1886) 66 WIS 17 : 27 NW 817.

11. OR TO STATE THE CONTENTS OR CONDITION OF ANY DOCUMENT Under this section an advocate is not permitted to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment. The protection against production or disclosure does not extend to any original document which might have come into the possession of the advocate from his client e.g. a letter addressed to the client which was alleged to be in the brief of the counsel. 44 A succession certificate was granted to a widow who applied through her pleader, without production of the will. Later, another person applied for letters of administration to the estate of the deceased. It was held that the refusal of the pleader to disclose the contents of the will when he was examined as a witness was proper as the pleader became acquainted with the contents of the will in the course of and for the purpose of professional employment which was privileged under Section 126. 45 In a criminal case the protection under Section 126 cannot be availed of against an order to produce a document. After the document is produced, then under Section 162, Evidence Act, it will be for the court, after inspection of the documents to decide any objection regarding its production and admissibility. 46

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The House of Lords decided that when the motive for preparing a document was not predominantly for use in anticipated litigation it was not to be privileged. The report concerned a railway accident which was investigated by the Board and which gave rise to the cause of action. 47 Communications passed by third persons to a solicitor were held to be privileged on the ground that the solicitor received them for the purpose of advising his clients 48 . In another case the Court of Appeal observed that it would be strange if a forger could hide behind a claim of legal professional privilege by the simple device of sending all the incriminating documents in his possession to his solicitors to be examined by the expert. 49 44 Chandubhai v. State, AIR 1962 Guj 290. 45 Bai Kanta v. Bhailal, AIR 1929 Bom 414; see also Davies v. Waters, (1842) 9 M&W 608. 46 Gangaram v. Habibullah, ILR 58 All 364; Public Prosecutor v. M.S. Menoki, AIR 1939 Mad 914; Chandu Bhai v. State, AIR 1962 Guj 290; Emperor v. Bilal Mahamed, AIR 1940 Bom 361. 47 Waugh v. British Railways Board, 1980 AC 521. 48 Re : Getty (Sarah C.) Trust, (1985) 2 All ER 809. 49 R. v. King, (1983) 1 All ER 929, noted in All ER Annual Rev. 1983.

12. "EXPRESS CONSENT" Mere failure on the part of the accused/client to claim privilege does not amount to "express consent." 50

50 Mandesan v. State of Kerala, 1995 Cr LJ 61 (paras 10 and 13) (Ker).

13. PROVISOS--ILLEGAL PURPOSES The protection of the section will not extend to any communications made in furtherance of illegal purpose in view of proviso 1, or to any fact showing that a crime or fraud has been committed since the commencement of the employment; in view of proviso 2. 51 If a client and his lawyer co-operate in effecting a crime the lawyer ceases to be a counsellor and becomes a criminal along with his client and there would be no privilege. 52 This proviso differs from the English law. Under it any communication made in furtherance of an "illegal purpose" is not privileged. Under the English law the purpose must be 'criminal and not merely 'illegal'. The privilege under Section 126 is not absolute but qualified. The Common Law of England under which an advocate can claim an absolute privilege for words uttered in the course of his professional duty is not applicable to India. 53 The existence of an illegal purpose would prevent any privilege attaching to any communication. Illustration (b) exemplifies this. A Government employee who was found guilty of misconduct by a tribunal, sent a notice under Section 80 , CPC , through his advocate which contained highly defamatory aspersions against the members of the tribunal. The complaint was filed under Section 500 , IPC , read with Section 198(b), Cr PC, both against the advocate and his client. The advocate pleaded good faith under Section 499 , IPC , stating that he acted on the instructions of the client. The client pleaded that as the said notice was not signed by him, he is not liable and the lawyer alone was responsible for the contents of the notice. Thereupon a revision petition was filed to quash the proceedings. It was held that the immunity from disclosure which can be claimed by a client in respect of a communication made to his lawyer is not absolute but limited in its scope; andSection 126 prescribes those limits...The interests of justice requires unity of identity between a lawyer and his client and so a lawyer is precluded from making a disclosure of the communication made to him by his client; but this rule of law is for very good reasons

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restricted in its scope by the two proviso contained in the section itself, no communication made to further any illegal purpose is protected...It cannot be the duty of a lawyer to advise his client how to commit a breach of the law or evade the law or commit a fresh crime in order to defend him against the charge of a crime which he has already committed. Such conduct would be covered fully by the first proviso as it would be clearly in furtherance of an illegal purpose. The question in the case is whether the defamatory imputations contained in the notice were necessary or justifiable for the purpose of a civil suit. If the conclusion is that there was no justification for making those imputations the case would fall under proviso 1 of Section 126 and not under the general rule of this section. Then it would not be a privileged communication and there would be no bar to a lawyer making a disclosure." It was held that Section 126 does not help the applicant and the revision petition was dismissed. 54 With regard to defamatory statement in court proceedings or defamatory suggestions to witnesses, privilege cannot be claimed under this section. The privilege intended under the section is only to protect the interests of the client in respect of any act ion for any prior act or offence. And it is not intended to apply to cases of commission of any offence in future. A defamatory imputation about a person in the instructions to an advocate is not a privileged communication. 55 In the case of a conviction on a charge of instructing a lawyer to put defamatory questions, it was held that the conviction based on evidence of the lawyer is unsustainable, as it is a communication between a client and his lawyer which is privileged under Section 126. 56 In a defamation case a letter containing imputations concerning the complainant was dictated by the advocate (accused) to his clerk and sent to the complainant's advocate in reply to a notice issued to him, it was held that there was no publication of the imputation, but the statement is protected under Section 126. 57 51 Ayesha Bi v. Peer Khan Sahib, AIR 1954 Mad 741; Mabhi Bhai v. State of Rajasthan, 1954 Raj 241; Sonrexa v. State of U.P., AIR 1963 All 33. 52 Mathews v. Hougland, (1891) 40 HJEQ 455. 53 Satish Chandra v. Ram Doyal, AIR 1921 Cal 1(SB) ; followed in Nirsu Narayan Sinha v. King Emperor, AIR 1926 Pat 499; Gendan Lal v. R, AIR 1948 All 409. 54 K.C. Sonrexa v. State of U.P., AIR 1963 All 33; following Ayeasha Bi v. Peer Khan Sahib, AIR 1954 Mad 741; Deep Chand v. Sampath Raj, AIR 1970 Mys. 34. 55 Autony v. G.S. Naidu, AIR 1967 Mad 395. 56 Appayya v. Rama Subbayya, AIR 1950 Mad 537; Palaniappa Chettiar v. R, 1935 Mad WN 460; Saukhi Gope v. Uchit Rai, AIR 1948 Pat 56. 57 P.R. Ramakrishnan v. Subbaramal, AIR 1988 Ker. 18; Rev Fr. Bernard v. Ramachandran Pillai, 1987 Cr LJ 739(Ker) .

14. PLEADING AND PROOF In regard to communications by a client to his advocate, before getting protection under this section, privilege must be claimed before the advocate is called upon to give evidence. 58 The Privy Council held that when the document is in fact a privileged one, from its non-production no adverse inference can be drawn because if adverse inference is drawn, it would destroy the privilege. 59

58 Autony v. G.S. Naidu, AIR 1967 Mad 395. 59 Dulhin v. Harnandan, AIR 1916 PC 157; Weston v. Peary Mohan Das, ILR 40 Cal 898; Wentworth v. Lloyd, (1864) HLC 591.

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Ratanlal & Dhirajlal: Law of Evidence, Updated 23rd Edition/THE INDIAN EVIDENCE ACT (ACT 1 OF 1872)/PART III PRODUCTION AND EFFECT OF EVIDENCE/CHAPTER IX OF WITNESSES/S. 127.

CHAPTER IX OF WITNESSES S. 127. Section 126 to apply to interpreters, etc. The provisions of Section 126 shall apply to interpreters, and the clerks or servants of barristers, pleaders, attorneys and vakils. 1. PRINCIPLE & SCOPE

The extension of the protection to interpreters is particularly important in a country like India, in which there are so many races speaking different languages, and in which the important portion of the administration of justice is conducted in a foreign language. (F IELD ON E VIDENCE , 11th Ed., Vol. 5, P. 4573). 60 This section extends the privilege given by S. 126 to interpreters, clerks, or servants of lawyers. It extends to a communication made to a pleader's clerk the same confidential character that attaches to a communication to the pleader direct under Section 126. 61 The privilege extends to communications made to the pleader's clerk as no pleader can work without the assistance of a clerk. 62 Confidential Secretary of a lawyer is included in the privilege. 63 60 Taylor v. Foester, (1825) 2 C&P 195; Bowman v. Norton, (1831) 5 Cr P 177, Lyell v. Kennedy, (1881) 9 App Cas 91. 61 Kameshwar v. Amanutulla, (1898) 26 Cal 53. 62 Kameshwar v. Amanutulla, (1898) 26 Cal 53; Ramakrishnan v. Subbaramma Sastrigal, AIR 1988 Ker 18; Abbas Pedda v. R, ILR 25 Cal 736. 63 Taylor v. Taylor, (1934) 179 Cr 691.

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Ratanlal & Dhirajlal: Law of Evidence, Updated 23rd Edition/THE INDIAN EVIDENCE ACT (ACT 1 OF 1872)/PART III PRODUCTION AND EFFECT OF EVIDENCE/CHAPTER IX OF WITNESSES/S. 128.

CHAPTER IX OF WITNESSES S. 128. Privilege not waived by volunteering evidence. If any party to a suit gives evidence therein at his own instance or otherwise, he shall not be deemed to have consented thereby to such disclosure as is mentioned in Section 126; and, if any party to a suit or proceeding calls any such barrister, pleader, attorney or vakil as a witness, he shall be deemed to have consented to such disclosure only if he questions such barrister, attorney or vakil on matters which, but for such question, he would not be at liberty to disclose. 1. PRINCIPLE AND SCOPE

This section states that, if a party to the suit gives evidence, he shall not be deemed to have consented to any disclosure as mentioned in Section 126. This section also says that the privilege would not be lost even if the legal adviser is called as a witness, unless the party questions him on a particular point. The privilege belongs to the client and therefore he alone can waive it. The privilege is not lost by calling the legal adviser as a witness, unless the party having the privilege questions him relating to confidential matters. "By calling the solicitor as a witness, unless he (client) also examines the solicitor in-chief as to the matter privileged, the client would not waive his privilege; and even in that case, it has been held in Ireland that the cross-examination must be confined to the point upon which the witness has been examined in-chief." (T AYLOR ). "A privileged person cannot be allowed, after disclosing as much as he pleases, to withhold the remainder; he may elect to withhold or disclose, but after a certain point, his election must remain final." W IGMORE indicated the following distinctions:-32)   The client's offer of his own testimony in the cause at large is not a waiver, for the purpose either of cross-examining him to the communications or of calling the attorney to prove them. 30)   The client's offer of the attorney's testimony in the cause at large is not a waiver so far as the attorney's knowledge has been acquired casually as an ordinary witness, but otherwise it is a waiver. 15)   The client's offer of his own testimony as to specific facts about which he has happened to communicate with attorney is not a waiver, for the same reason as in (1) supra ; but his offer to the attorney's testimony as to such specific facts is waiver, for the same reason as in (2). supra ; 12)   The client's offer of his own or the attorney's testimony as to specific communication to the attorney is a waiver as to all other communications to the attorney on the same matter; for the privilege of secret consultation is intended only as an

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incidental means of defence, and not as an independent means of attack, and to use it in the latter character is to abandon it in the former. 7)   The client's offer of his own or his attorney's testimony as to a part of any communication to the attorney is a waiver as to the whole of that communication on the analogy of the principle of completeness. (W IGMORE ON E VIDENCE , Section 2327).

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Ratanlal & Dhirajlal: Law of Evidence, Updated 23rd Edition/THE INDIAN EVIDENCE ACT (ACT 1 OF 1872)/PART III PRODUCTION AND EFFECT OF EVIDENCE/CHAPTER IX OF WITNESSES/S. 129.

CHAPTER IX OF WITNESSES S. 129. Confidential communications with legal advisers. No one shall be compelled to disclose to the Court any confidential communication which has taken place between him and his legal professional adviser, unless he offers himself as a witness, in which case he may be compelled to disclose any such communications as may appear to the Court necessary to be known in order to explain any evidence which he has given, but no others. 1. PRINCIPLE AND SCOPE

This section states that no one shall be compelled to disclose to the court any confidential communication which has taken place between him and his legal adviser. But this privilege is subject to a condition namely, if he offers himself as a witness, he may be compelled to disclose any such communications which may appear to the court necessary in order to explain any evidence he has given in the witness box. This section provides protection to any witness including the client, whereas Sections 126, 127 & 128 provide protection to the legal adviser, his clerks etc., from disclosing confidential communication between them and the client. If protection is not provided for the client as was done in this section the protection given to the advocate or legal adviser under Section 126, 127 and 128 would become illusory. "It has long been established that, where the client himself as the party interrogated all communications between the solicitor and client, whether pending and with reference to litigation or made before litigation and with reference thereto, or made after the dispute between the parties followed by litigation, though not, in contemplation of, or with reference to, that litigation, are protected." (T AYLOR , 924). If a party becomes a witness of his own accord he shall, if the Court requires it, be made to disclose everything necessary to the true comprehension of his testimony. 64 If the client offers himself as a witness, then alone he can be compelled to disclose the confidential communication, if the court is satisfied such disclosure is necessary in order to explain the evidence given by the witness. 65 Where the propounder of a will obtained a brief note for the execution of the will, and subsequently that person was examined as a witness, it was held that the brief note was privileged from production and the caveators were not entitled to see it, and the judges should not have allowed their minds to be influenced in considering the evidence by the fact that the note was not produced in court for the information of the caveators. 66 Section 129, unlike Section 126 where the word "permitted" is used, uses the word "compelled". Whereas the legal adviser is not at liberty to disclose any professional communication without his client's consent, the client may, if he so wishes, disclose the communication, but if he refuses to do so, he cannot be forced to make the disclosure. Therefore, where evidence concerning a privileged communication is given by the client without any pressure being put upon him, the evidence would be admissible. 67

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64 See Munchershaw Bezonji v. New Dhurumsey S&W Company, (1880) 4 Bom 576, 581. 65 Union of India v. Om Prakash Gupta, (1969) 2 Punj 473. 66 Dulhin v. Harnandan, AIR 1916 PC 157 : 20 Cal WN 617(PC) . 67 See Moher Sheikh v. Queen Empress, (1893) 21 Cal 392, 400.

2. COMPELLED This word compelled does not mean subpoenaed. The section uses the words 'compelled to disclose' with reference to the case when a man has offered himself as a witness, and must refer to some force put upon the witness after he is in the witness box. 68 68 Moher Sheikh v. Queen-Empress, (1893) 21 Cal 392, 400.

3. COMMUNICATION WITH THIRD PARTIES "Whereas all that passes between a lawyer and his lay client is privileged, if it does so in the course of a professional relationship, where either the lawyer 69 or the client 70 has communicated with a third party about a matter relevant to the litigation in hand, that communication will be privileged only if it has been made in contemplation of the litigation. Thus a report made to the officials of a trade union, enclosing relevant statements and evidence, so as to obtain the consent of the trade union to the reference of a claim for wrongful dismissal to a solicitor was held not to be privileged. 71 Where litigation is not contemplated 72 or the communication owes its existence to extraneous and independent considerations 73 , no privilege attaches to the communication. Whether or not litigation is in contemplation is often a difficult question. It is clear that it is not essential that a cause of act ion has arisen 74 . It has been said that a mere request for information from the third party was not privileged even when litigation was probable, because nothing in the request to the third party indicated the purpose for which the information was sought 75 ; but this decision is of doubtful validity 76 ; there is no obvious reason why the third party should be told that litigation is contemplated. (Indeed there is something to be said for the view that his evidence will be the more reliable if he does not know a result in most cases impossible to achieve). Often the dealings with the third party are not prompted by a single motive, and in such cases it is necessary to investigate the purpose for which the communication with the third party chiefly took place. A document would attract legal professional privilege only if the sole or predominant purpose of its preparation is to enable it to be used by lawyers. The only question to be answered is whether the dominant purpose of the document was that it should be submitted to legal advisers. 77 "No privilege attaches to communications between claimant and defendant, or between opposing parties. There can be no confidentiality in such communications. It follows that there can be no confidentiality, and no privilege, in notes or reports of matters at which both sides were present. Thus a transcript of proceedings in chambers, in open Court or before arbitrators will not be privileged. 78 This is so whether the transcript is prepared by a Court reporter, either present taking a shorthand note or from the tape, or a solicitor or barrister. Any tape-recording of such proceedings will also not be privileged. Nor will depositions in prior foreign proceedings between the same parties attended by representatives of both parties. 79 It also follows from this that a solicitor's attendance note of a meeting with the solicitor for the opposing party will not be privileged. This was held in Parry v. News Group. 80 It was alleged in a libel action that a concluded agreement was reached between the parties during a telephone conversation between the plaintiff's solicitor and the defendants' legal manager. The plaintiff's solicitor prepared a file note of the telephone conversation, and disclosed it. It was argued this was a waiver of privilege and gave rise to an obligation to disclose additional privileged documents. The Court of Appeal rejected the contention that the document was ever privileged. It was not suggested that the oral exchange between the parties was itself subject to legal professional privilege and in consequence the

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contempo- raneous note could not be subject to privilege." P HIPSON ON E VIDENCE , 15th Edn. (2000), Para 20-10, pp. 510-511. The privilege, where it attaches, remains in all cases that of the litigant, and the third party from whom the information is sought cannot claim privilege. 81 It may be observed that the principle of Calcraft v. Guest 82 whereby secondary evidence of privileged documents is admissible, has never, so far as is known, been sought to be applied to a third party by way of subpoena duces tecum ). Where a legal adviser collates and copies material not in itself privileged for the purpose of advising a client or preparing the case, it has been held that the copies are privileged 83 . In Buttes Gas & Oil Co. v. Hammer (No. 3), 84 L ORD D ENNING M.R. disapproved some of these authorities and would have denied privilege to copies of documents the originals of which were not privileged, on the ground that the maker of the original could be made the subject of a subpoena duces tecum . 85 It is perhaps doubtful whether it was open to the learned Master of the Rolls to discard several decisions of the Court of Appeal; but at all events his dicta can only have been intended to extend to documents in the hands of the client, as the authority approved by him would suggest 86 . It can hardly be the case that copies taken in the course of evidence-gathering are not privileged. The Bombay High Court held "Although a document may not be such as passed directly between the legal adviser and the client, yet, if it is of such a nature as to make it quite clear that it was obtained confidentially for the purpose of being used in litigation and with a view to being submitted to legal advisers, then, the court will not compel the production of such a document. 87 Letters written by one of the defendant's servants to another for the purpose of obtaining information with a view to possible future litigation, are not privileged, even though they might, under the circumstances, be required for the use of the defendant's solicitor. In order that privilege may be claimed, it must be shown on the face of the affidavit that the documents were prepared or written merely for the use of the solicitor. 88 Reports made by defendant's servants to the defendant regarding the subject-matter of the suit are not privileged. 89 69 Crompton (Alfred) Amusement Machines Ltd. v. Customs and Excise Commissioners (No. 2), (1973) 2 All ER 1169(HL) . 70 Pacey v. London Tramways Co., (1876) 2 Ex. D. 440n. (C.A.); Friend v. London, Chatham and Dover Ry., (1877) 2 Ex. D. 437(C.A.) ; Southwark Co. v. Quick, (1878) 3 QBD 315(CA) . 71 Jones v. Great Central Ry. Co., (1910) AC 4(HL) . The decision, in principle correct, is a trap for the unwary. In most such cases, in modern conditions, the dispensation in favour of employed solicitors inaugurated by Cromptons case (ante 15-09) will protect such communications. 72 Abbas Peada v. Queen-Empress, (1898) 25 Cal 736. 73 Woolley v. N. L. Rly., (1869) LR 4 CP 602; G.E. Crippen & Associates v. Vancouver Tug Boat Co., (1971) 2 Lloyd's Rep. 207, 210; Wheeler v. Le Marchant, (1881) 17 Ch. D. 675(CA) . See also Abbas Peada v. Queen-Empress, (1898) 25 Cal 736. 74 Bristol Corporation v. Cox, (1884) 26 Ch. D. 678. 75 Anderson v. Bank of British Columbia, (1876) 2 Ch. D. 644. See also 15-30, n. 71. 76 Cf. di Pietrantonio v. Austin Hospital-Heidelberg, (1958) V. R. 325. 77 Melick v. Norwich Union, (1980) 1 Lloyd's Rep. 523 (assessors report to insurers); Neilson v. Laugharne, (1981) 1 All ER 829(CA) (report for a complaint, the report being made pursuant to a duty under the Police Act 1964, (S. 49). In both cases, privilege was refused following Waugh v. B.R.B. (ante ). 78 Ainsworth v. Wilding, (1900) 2 Ch 315, 320. 79 Visx lnc v. Nidek Co., (1999) FSR 91. 80 (1990) 140 NLJ 1719. 81 Schneider v. Leigh, (1955) 2 QB 195(CA) .

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82 (1898) 1 QB 759 (CA) see ante , 15-04. 83 Lyell v. Kennedy, (1884) 27 Ch D 1(CA) ; the Palermo (1884) 9 P.D. 6(CA) ; Watson v. Cammell Laird, (1959) 1 WLR 702(CA) . 84 (1980) 3 All ER 475, 489 g-h : (1981) 3 WLR 787, See ante n. 17a. 85 Ibid , at p. 484 f-h. 86 Chadwick v. Bowman, (1886) 16 QBD 561(DC) . 87 Vishnu Yeshawani v. New Life Insurance Co., (1905) 7 Bom LR 709. 88 Bipro Dass Dey v. Secretary of State for India in Council, (1885) 11 Cal 655. 89 Central India Spinning & Co. v. G.I.P. Railway, (1926) 29 Bom LR 414 : AIR 1927 Bom 367.

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Ratanlal & Dhirajlal: Law of Evidence, Updated 23rd Edition/THE INDIAN EVIDENCE ACT (ACT 1 OF 1872)/PART III PRODUCTION AND EFFECT OF EVIDENCE/CHAPTER IX OF WITNESSES/S. 130.

CHAPTER IX OF WITNESSES S. 130. Production of title-deeds of witness, not a party. No witness who is not a party to a suit shall be compelled to produce his title-deeds to any property, or any document in virtue of which he holds any property as pledgee or mortgagee, or any document the production of which might tend to criminate him, unless he has agreed in writing to produce them with the person seeking the production of such deeds or some person through whom he claims. 1. PRINCIPLE AND SCOPE

This section states that a witness who is not a party to the suit shall not be compelled to produce his title deeds to any property, or any document under which he holds the property as a pledgee or a mortgagee, or any document the production of which might tend to incriminate him. But he may agree to produce such document in which case such agreement must be in writing. This section is based on the principle that great inconvenience and mischief would result to witnesses if they are compelled to disclose their titles by the production of their title-deeds. The object of the privilege is that the title may not be disclosed and examined. The section protects a witness, who is not a party to the suit in which he is called, from producing-33)   title-deeds to any property, or 31)   any document in virtue of which he holds any property as pledgee or mortgagee, or 16)   any document the production of which might tend to criminate him, unless he has agreed in writing to produce such document. It would be entirely optional for the witness to produce his title-deeds, and to raise any objection whatever. S TEPHEN in his Digest (Art. 118) states: "That Section 130 differs from the English Law in one respect that the section does not excuse a witness from producing a document which might expose him to a penalty or forfeiture; whereas the English Law does excuse. But, both according to the English and the Indian Law a witness is not excused from producing a document on the ground that the production might render him liable to civil act ion." The privilege under this section has to be claimed in an affidavit stating that the documents constitute exclusively evidence of his own case or title. 90 Section 131 extends the protection to an agent which Section 130 provides for a principal. T AYLOR ON E VIDENCE (8th Ed., Section 458 & 428) states "Upon principles of reason and equity judges will refuse to compel either a witness or a party to a cause to produce either his title deeds, or any document the production of which may tend to criminate him, or any document which he holds as mortgagee or pledgee."

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It is stated in P HIPSON 13th Edn., pages: 312 & 313, para: 15.32 & 15.33 as follows: "A witness, if a stranger, cannot be compelled to produce his title-deeds, or documents in the nature of title-deeds. 91 This rule can only apply in criminal proceedings, being abrogated in any other legal proceedings by the Civil Evidence Act 1968, S. 16(1)(b). In criminal proceedings, the old rule of law that a party cannot be compelled to produce documents which relate solely to his own case and do not tend to support the title or case of his adversary 92 still presumably applies to the prosecution in criminal proceeding. But this rule has been abrogated in civil proceedings by Section 16(2) of the Civil Evidence Act 1968. 93 A witness cannot withhold production, as distinguished from delivery, of a document on the ground that he has a lien upon it as against a stranger 94 . However, he can withhold production, where the lien is against the party requiring its production 95 unless the rights of third parties would be prejudiced thereby, as in the case, e.g. of Bankruptcy 96 ; Administration 97 ; Winding-up 98 ; or Partition actions 99 .It has been held that the witness cannot withhold production even where the third party claims through the person against whom the lien exists. 1 Order XVI, Rule 6, C.P.C. provides that any person may be summoned to produce a document without being summoned to give evidence. Order XI, C.P.C. provides for discovery and inspection of the documents in the possession of a party to the suit. Section 162 of the Evidence Act states that a witness summoned to produce a document shall, if it is in his possession or power, bring it to the court, not withstanding any objection which there may be to its production or to its admissibility. The validity of any such objection shall be decided on by the court. This is a mandatory provision and the person to whom the summons is issued has to produce the document and then can claim privilege either under Section 130 or 131. In English Law however the oath of the witness is conclusive as to the nature of the document.

2

"In England the title-deeds to land are of such extraordinary importance that as, when a witness called on to produce documents under a subpoena duces tecum swears that they are his documents of title, the court always excuses him from producing them." (B EST -8th Edn. See 138 p. 115). 90 Balamoney v. Ramaswami, ILR 30 Mad 230; Attorney General v. Emerson, 10 QBD 191. 91 Doe v. Date, (1842) 3 QB 690; Pickering v. Noyes, (1823) 1B & C. 262. 92 Morris v. Edwards, (1891) 15 App. Cas. 309; Milbank v. Milbank, (1900) 1 Ch. 376; Miller v. Kirwan, (1903) 2 IR 120, Chowwood v. Lyall, (1929) 2 Ch. 406; Budden v. Wilkinson, (1893) 2 QB 432; Frankerstein v. Gavin, (1897) 2 QB 62; Bursill v. Tanner, (1885) 16 QBD 1; Volant v. Soyer, (1853) 13 CB 231; Phelps v. Prew, (1854) 3 E&B 430; Hibberd v. Knight, (1848) 2 Ex. 11. 93 See n.91, above. 94 Re.: Hawkes, Ackerman v. Lockhart, (1898) 2 Ch. 1, and cases cited. 95 Re.: Hawkes, ante; Re.: Jones, 21 TLR 352. 96 Bankruptcy Act 1914, S. 25; Re.: Winslow, (1886) 16 QBD 696. A claim by a bankrupt not to answer questions as to a secret process was rejected In re : Keene (1922) 2 Ch. 475; cf. Re.: Stevenson (1918-19) B&CR 106. 97 Re.: Broughton, 23 Ch D 169; Re.: Hawkes, ante. 98 Companies Act 1948, S. 268; Re.: Capital Fire Assoc., (1884) 24 Ch D 408. 99 Boden v. Hensby, (1892) 1 Ch 101. 1 Lockett v. Cary, (1864) 10 Jur. 144(N.S.) ; but see Re.: Hawkes, ante. 2 Morris v. Edwards, (1891) 15 AC 309.

2. TITLE-DEED

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A lease deed is the title-deed of a lessee within the meaning of this section. 3 A will is the title-deed of a devise (T AYLOR , 459). Where a stranger who was directed to produce a document, stated that it was his own title-deed and it was not in his possession but offered to produce it the next day, and the court proceeded against him under Section 476,Cr. P.C. (old) (Section 340 new), it was held that if the document is his own titledeed he would be entitled to refuse to produce it and he could not be compelled under Section 130 and 131 of the Evidence Act, and that before taking any proceeding the court should have determined the nature of the document; and without determining the nature of the document no proceedings can be taken. 4 Normally, in the case of joint ownership of property one holding the document cannot be compelled to produce the same, or if the document is in possession of another person, he also cannot be compelled. A seller who sells part of the property is entitled to retain the title-deed under proviso to Section 55(3), T.P. Act . Where one sells his entire property to different purchasers in plots, the buyer of the plot of greatest value will be entitled to all the documents. In such cases the other buyers will take an agreement from the buyer of the highest value to produce the title-deeds whenever required. In the case of a person pleading joint ownership as a ground for non-production of the document, it was held that he should satisfy the court as to the nature of the joint ownership. 5 3 Imrit Chamar v. Sridhar Pandey, 17 CWN 108 : 13 I.C. 120. 4 Bhagabat Prasad Singh v. Emperor, (1911) 12 Cr LJ 450(Cal) . 5 Dhirabala v. Tincouri, 31 CWN 80.

3. CONSEQUENCE OF REFUSAL If the witness refuses to produce his title deed, as he cannot be compelled to produce it, the party who wants its production may be allowed to give secondary evidence of the contents of the document. 6 But the person claiming privilege cannot himself be examined as to its contents. 6 Imrit Chamar v. Sridhari, 17 CWN 108. 7 Davies v. Waters, (1842) 9 M&W 608.

7

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Ratanlal & Dhirajlal: Law of Evidence, Updated 23rd Edition/THE INDIAN EVIDENCE ACT (ACT 1 OF 1872)/PART III PRODUCTION AND EFFECT OF EVIDENCE/CHAPTER IX OF WITNESSES/S. 131.

CHAPTER IX OF WITNESSES 8

[ S. 131.

Production of documents or electronic records which another person, having possession, could refuse to produce. No one shall be compelled to produce documents in his possession or electronic records under his control, which any other person would be entitled to refuse to produce if they were in his possession or control, unless such last-mentioned person consents to their production.] 1. THE INFORMATION TECHNOLOGY ACT , 2000 PRODUCTION OF DOCUMENTS

The Section 131 as substituted by the Act mentioned above accommodates electronic records in the expression "documents" and says that no person shall be compelled to produce documents in his possession or electronic records under his control which any other person would be entitled to refuse to produce, if they were in his possession unless he consents to their production. 8 Substituted by the Information Technology Act, 2000, S. 92 Sch. II (w.e.f. 17-10-2000).

2. PRINCIPLE AND SCOPE Persons in possession of documents on behalf of others are generally agents, attorneys, mortgagees, trustees, etc. This section extends to these persons the same protection which the preceding section provides for a witness who is not a party to a suit. The Act is silent as to whether the agents, mortgagees or pledgees can be compelled to give the contents of the document though they are protected from producing the document itself under the section. B AROLD A LDERSON observed, "It would be perfectly illusory for the law to say that a party is justified in not producing a deed, but that he is compellable to give parol evidence of its contents; that would give him, or rather his client through him, merely an illusory protection, if he happens to know the contents of the deed, and would be only a round-about way of getting from every man an opportunity of knowing the defects may be in the deeds and titles of his estate." 9 F IELD adds that the same rule will, no doubt be followed in India. (F IELD 11th Edn., p. 1433). Where summons were issued under Section 94,Cr.P.C. to accused company's employee for production of certain documents, it was held the company can underSection 131 object to its own employees producing its documents in court, without its consent, and that no summons under Section 94,Cr.P.C. can be issued to produce documents against the company's employees. 10 If a person refuses to produce the document under this section the court is not entitled to draw an adverse inference as to its contents. 9 Davies v. Waters , 9 Meeson & Wels By's Rep 612 : 60 RR 843. 10 State of Maharashtra v. Nagpur Electric Light & Power Co. Ltd., AIR 1961 Bom 242.

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Ratanlal & Dhirajlal: Law of Evidence, Updated 23rd Edition/THE INDIAN EVIDENCE ACT (ACT 1 OF 1872)/PART III PRODUCTION AND EFFECT OF EVIDENCE/CHAPTER IX OF WITNESSES/S. 132.

CHAPTER IX OF WITNESSES S. 132. Witness not excused from answering on ground that answer will criminate. A witness shall not be excused from answering any question as to any matter relevant to the matter in issue in any suit or in civil or criminal proceeding, upon the ground that the answer to such question will criminate, or may tend directly or indirectly to criminate, such witness, or that it will expose, or tend directly or indirectly to expose, such witness to a penalty or forfeiture of any kind: Proviso. Provided that no such answer, which a witness shall be compelled to give, shall subject him to any arrest or prosecution, or be proved against him in any criminal proceeding, except a prosecution for giving false evidence by such answer. 1. PRINCIPLE AND SCOPE

Under this section a witness shall not be excused from answering any question as to any matter relevant to the matter in issue, in any criminal proceedings (among others) upon the ground that the answer to such a question will incriminate or may tend directly or indirectly to expose him to a penalty or forfeiture of any kind. The safe-guard to this compulsion is that no such answer which the witnesses is compelled to give exposes him to any arrest or prosecution or can it be proved against him in any criminal proceeding, except a prosecution for giving false evidence by such answers. 11 The privilege is based on the policy of encouraging persons to come forward with evidence in Courts of Justice by protecting them, as far as possible, from injury or needless annoyance, in consequence of so doing. A sensible compromise has, however been adopted in several modern statutes by compelling the disclosure, but indemnifying the witness in various respects against its results. 12 Where there were cross-cases under Section 107,Cr.P.C. in a case, a prosecution witness (the defendant in the defamation suit) used abusive language against the accused who was a lawyer (plaintiff in the defamation suit). In the suit for defamation it was held that though using abusive language is a gross abuse of the privilege of a witness, in view of the peculiar position of the plaintiff as an accused in that case, the defendant was protected under the proviso ofSection 132 and was not liable. 13 The Evidence Act does not apply to interrogations by a Customs Officer exercising powers under Section 171-Aof the Sea Customs Act , andSection 132 cannot be attracted. 14 In a case before the Supreme Court, the Customs Officers questioned one lady who was said to be involved in a smuggling racket. She admitted her own part along with others. But, the customs authority proceeded against others leaving that lady so that they might examine her as a prosecution witness. A contention was raised that she should also be tried along with them, so that her testimony might not be available against them. H IDAYATULLAH , J. observed "In India the privilege of refusing to answer has been removed so that temptation to tell a lie may be avoided but it was necessary to give this protection. The protection is further fortified by Art. 20(3), which says that no person accused

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of any offence shall be compelled to be a witness against himself. This article protects a person who is accused of an offence and not those questioned as witnesses. A person who voluntarily answers questions from the witness box waives the privilege which is against being compelled to be a witness against himself because he is then not a witness against himself but against others. Sections 132 of the Indian Evidence Act sufficiently protects him since his testimony does not go against himself. In this respect the witness is in no worse position than the accused who volunteers to give evidence on his own behalf or on behalf of the co-accused. There too, the accused waives the privilege conferred on him by the Article since he is subjected to cross-examination and may be asked questions incriminating him. The Evidence of Ethyl Wong cannot, therefore, be ruled out as that of an incompetent witness"15 Where the evidence of the accused in another criminal case as a prosecution witness was given out of legal obligation in pursuance of Court's summons, such deposition cannot be assumed to be given voluntarily and therefore it cannot be used in any pending prosecution against him except only for the limited purpose for prosecuting him for giving false evidence. 16 11 State v. Jagjit Singh, AIR 1989 SC 598. 12 P HIPSON 13th Edn. (para 15-36) p. 314. 13 Rajindra Kishore Sahi v. Durga Sahi, AIR 1967 All 476. 14 Hira H. Advani v. State of Maharastra, AIR 1971 SC 44; Shankerlal v. Collector of Central Excise, AIR 1960 Mad 225; Maniklal Soni v. Union of India, 1984 Cr LJ 1359(Guj) . 15 Laxmipat Choraria v. State of Maharashtra, AIR 1968 SC 938. 16 Janardan Subrao Pai v. Chandra Kamalaksha Pai, 2003 CrLJ 2909, 2911 paras 5 & 6 (Bom) : 2003 (4) All CrLR 167 : 2003 All MR 1091(Cri) : 2003 (4) Mah LJ 342.

2. OATH OF WITNESS NECESSARY BUT NOT CONCLUSIVE A witness cannot refuse to go into the witness-box on the ground that he might criminate himself; he can only claim the privilege after he is sworn and the question put. 17 And he must pledge his oath that he honestly believes the answer will or may tend to criminate him, 18 though even this does not necessarily suffice; for the court is entitled to see, from the circumstances of the case and the nature of the evidence the witness is called to give, that there is reasonable ground to apprehend danger from his being compelled to answer 19 but, once such danger is made apparent, great latitude should be allowed to the witness in judging for himself of the effect of any particular question. 20 17 Boyle v. Wise Men, (1855) 10 Ex 647. 18 Webb v. Egst, (1880) 5 Ex D 108; Lamb v. Munster, ante; Re.: Genese, 3 Morrell 223 (CA); National Association of Operative Plastrs. v. Smithies, (1906) AC 434, 438. 19 Rio Tinto Zinc Corp. v. Westinghouse Electric Corp., (1978) AC 547(HL) . 20 Ibid, and see R. v. Boyes, (1861) 1 B & S 311; Reynolds, 20 Ch D 294; Lamb v. Munster, (1883) 10 QB 110ante : Re.: Genese, (1985) 3 MBR 223(CA) ; National Assn. of Operative Plasters v. Smithies, (1906) AC 434, 438 [P HIPSON 13th Edn. (para 15-41) page 319].

3. CLAIM MUST BE BONA FIDE The court must also be satisfied that the claim is made genuinely for the protection of the witness, and not for ulterior purposes (R. v. Armagh, ante ; Re Reynolds, ante, where a witness, having declined to answer whether he had, as trustee, executed a post- nuptial settlement made by a bankrupt on the ground that he might be charged with conspiracy to defeat the latter's creditors, the court disallowed the objection, considering it a mere device to stifle inquiry.). Moreover, the claim may be made at any stage of the proceedings and, when allowed, protects both future and past answers. 21

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21 R. v. Garbett, (1847) 1 Den CC 236.

4. APPLICABILITY Section 132 of the Evidence act, does not apply to a statement made by a person during an investigation under Section 161,Cr.P.C. An investigation under Chapter XIV, Cr.P.C. may be a proceeding but is certainly not a suit or a civil or criminal proceeding. A person who is interrogated underSection 161 by a Police Officer making an investigation is not a witness within the meaning of Section 132, as it refers only to a person who enters the witness box and is sworn as a witness. So defamatory statement made by a person in an answer to interrogatories during investigation under Section 161 are not protected u/s. 132. 22 22 Haji Ahmed Hussain v. State, AIR 1960 All 623.

5. APPROVER The moment the pardon is tendered to the accused he must be presumed to have been discharged whereupon he ceased to be an accused and becomes a witness, though, a formal order of discharge is not recorded. 23 In a criminal trial for offences of violating a control order, the prosecution witness became hostile. Later that witness was made an accused under Section 319(1) of the control order and was convicted without any evidence on the basis of incriminating statements made by him. It was held that conviction was illegal and as a witness in the criminal case he is entitled for protection under the proviso to Section 132 though incriminating statements were made as a witness. 24 The Madras High Court held that an accused, who had been jointly charged with another but whose case had been separated before the trial commenced so that he could be examined as a witness in the case of the other accused, could not be denied the benefit of the proviso to Section 132. He is as much a witness as any other, when once he is not an accused person within the meaning of Section 342,(old) Cr.P.C. (nowSection 313). When an oath could be administered to such a person, naturally the incidents of Section 132 will also attach themselves to such a person as a witness. 25 23 A.J. Peiris v. State, AIR 1954 SC 616; Sheorati v. R, 18 Cal WN 1213; Banusingh v. R, (1906) 10 Cal WN 962. 24 Paulose v. State of Kerala, 1990 Cr LJ 100(Ker) ; Gangadharan v. State, 1989 Cr LJ 2455(Ker) . 25 In re : Kandaswami Gounder, AIR 1957 Mad 727; see also 1970 Pat LJR 424.

6. Article 20(3) OF CONSTITUTION & Section 132 EVIDENCE ACT Article 20(3) of the Constitution provides a protection for an accused person charged with any offence stating that he shall not be compelled to be a witness against himself. But this provision under Section 132 applies to any witness in a civil or criminal proceedings. Section 342(a),Cr.P.C. (old) corresponding toSection 313(1),Cr.P.C. of 1973 provides that even an accused can give evidence in his defence. The Supreme Court in Tukaram v. Shukla 26 held that is cannot be said that if an accused enters the witness box to substantiate his defence, he is thereby compelled to be a witness against himself under Article 20(3) of the Constitution. The rule laid down by Art. 20(3) of the Constitution is narrower than the Anglo- American rule since the privilege has been kept confined to persons "accused of any offence", an 'offence' being defined by Sections 2(38) of the General Clauses Act . Witnesses in India have been left untouched by the Constitution and continue to be governed bySection 132 and other provisions of the Evidence Act. 27

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26 AIR 1968 SC 1050. 27 Subedar v. State of Allahabad, AIR 1957 All 396.

7. CUSTOMS ACT Where a notice was issued to the petitioners under Sections 171-A Sea Customs Act , to appear before the Customs Officers and to show cause why penalty should not be imposed underSection 167(8) of that act and the petitioner was compelled to answer certain questions, it was held that the proceedings before the Customs Officer are not judicial proceedings and the petitioners are not accused and so Art. 20(3) of the Constitution does not apply; however, if the petitioners are likely to be proceeded against in criminal court, they become accused and then only they can claim protection under Art. 20(3) of the Constitution. 28 28 Shankerlal v. Collector of Central Excise, Madras, AIR 1960 Mad 225; Maniklal Soni v. Union of India, 1984 Cr LJ 1359(Guj) ; Hira H. Advani v. State of Maharashtra, AIR 1971 SC 44.

8. COMPANIES ACT There were two proceedings against a Managing Director, one under Section 185 Company's Act, and the other a Criminal Proceeding in respect of the same subject-matter. When the Managing Director asked for adjournment of the proceedings under Section 185 Companies's Act till the disposal of the criminal case, it was held that the Managing Director was not an accused in the proceedings under Sections 185 of the Companies Act and as he was not being compelled to make any statement as a witness he could not claim protection beyond what was contained in proviso to Section 132 of the Evidence Act. And the ground for adjournment under Art. 20 Cl. (3) would not be applicable to the proceedings under the Companies Act . 29 29 People's Insurence Co. v. Sardul Singh, AIR 1962 Punj 101.

9. ANY QUESTION AS TO ANY MATTER RELEVANT TO THE MATTER IN ISSUE The section does not in terms deal with all criminatory questions which may be addressed to a witnesses, but only with questions as to matters relevant to the matter in issue. Irrelevant questions should not be allowed, and it may be implied from the limitations in this section that a witnesses could be excused from answering questions tending to criminate as to matters which are irrelevant. 30 30 Queen v. Gopal Doss, (1881) 3 Mad 271, 277, 278 FB; Peddabba Reddi v. Varadda Reddi, (1928) 52 Mad 432; Queen-Empress v. Ganu Sonba, (1888) 12 Bom 440; Queen v. Gopal Doss, (1881) 3 Mad 271 FB; Queen-Empress v. Moss, (1893) 16 All 88; Kallu v. Sital, (1918) 40 All 271; Emperor v. Pramatha Nath Bose, (1910) 37 Cal 878; Jaganath v. King-Emperor, (1934) 10 Luck 169 : AIR 1934 Oudh 386; Rasool Bhai v. Lall Khan, ILR (1939) Ran 479.

10. PROVISO--PROTECTION TO ANSWER The section makes a distinction between those cases in which a witness voluntarily answers a question and those in which he is compelled to answer, and gives him a protection in the latter of these cases only. Protection is afforded only to answers which a witness has objected to give or which he has asked to be excused from giving and which then he has been compelled by the Court to give 31 . The mere subpoeaning of a witness or ordering him to go into the witness-box does not compel him to give any particular answer or to answer any particular question. The words "shall be compelled to give "in the proviso apply to pressure put upon a witness after he is in the box, and when he asks to be excused from answering a question. 32 The Allahabad High Court has held that this is too narrow

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an interpretation. A common sense meaning should be given to the word 'compelled'. It is impossible to deny that in the case of ordinary laymen unacquainted with the technical terms of this section, they are compelled to answer on oath questions put either by the Court or by counsel, especially when the question is relevant to the case. An answer given by a witnesses under such circumstances is protected by this section. Whether or not a witness is 'compelled' within the meaning of this section to answer any particular question put to him while in the witness-box is in each case a question of fact. In a case a witness for the prosecution admitted in evidence that he helped the accused in the disposal of the dead body. On that admission he was prosecuted latter for the offence of helping to suppress the evidence under Section 201,I.P.C. In that trial the accused stated in his examination underSection 342,(old) Cr.P.C. (nowSection 313) that in the original case he stated that fact on the instigation by the police. It was held that the witness in order to be entitled to the protection under Section 132 should object to the question which tends to incriminate him. The question whether a statement was made voluntarily or under compulsion is a question of fact, but an obligation under law to state the truth as a witness on oath, cannot ipso facto be equated with compulsion and admission made by a witness in the witness box about the commission of an offence by him, can be used against him in evidence. The present explanation for the statement during the examination under Section 342,(old) Cr.P.C. (nowSection 313) could be regarded in the context as true and sufficient for the purpose of discharging the onus of explaining away the admission, and answers given by the accused in the examination under Section 342,(old) Cr.P.C. (nowSection 313). 33 'A' the husband of 'B' married 'C'. During the trial of A for bigamy the father of the complainant 'B' requested the court that 'C' may be summoned as a witness though there was no allegation against 'C' in the complainant. An objection was raised by 'C' stating that she will be deposing against her own interest and it would amount to compelling her to make a statement against herself. It was held that the proviso to Section 132 provides a sufficient safeguard to 'C'. 34 According to an earlier decision of the Madras High Court a witness is not guilty of defamation for any statements made in witness-box. 35 But subsequently it has held that a witness who answers a question put to him by counsel without seeking the protection of this section is not entitled to any protection as the statements made by him are entitled not to an absolute but only to a qualified privilege. 36 The compulsion contemplated by this section may be express or implied. D EVADOSS , J., observed: "Whether the witness seeks the protection of the court in a set form of words or not, if the witness is made to understand directly or indirectly that he has no option in the matter but to answer all the questions put to him. I conceive he would bring himself within the proviso to Section 132. I am not prepared to hold that the proviso would only apply to witnesses who ask in so many words the protection of the court under Section 132. The words of the proviso should be understood in the ordinary sense and the word 'compelled' means forcing or insisting upon a witness to answer the question. The witness may not know that he should apply for protection; but any reasonable man ought to know that any statement defamatory of another would expose him to a charge of defamation. If he hesitates to answer and the court tells him he must answer the question, I would hold that hesitation and the direction of the court to the witness to answer would bring the witness within the proviso". 37 The Bombay High Court observed: "If a man voluntarily makes an incriminating statement, he must take the consequences for it. He can only plead protection if he has specifically declined to make the statement, and has been specifically compelled to do so by the Court." 38 The Bombay High Court has in another Full Bench case laid down that relevant statements made by a witness on oath or solemn affirmation in a judicial proceeding are not protected by this proviso where the witness has not objected to answering the questions put to him. 39 A witness who makes defamatory statements in a witness box comes within the purview of Section 499 , Indian Penal Code (ibid ). The Calcutta High Court has held that a witness who makes a voluntary and irrelevant statement not elicited by a question put to him while under examination is not protected by this section. It has therefore, held that a witness making a voluntary and irrelevant statement to injure the reputation of another is guilty of defamation. 40 Where a witness makes a voluntary and irrelevant statement with

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some malice and when it is not elicited by putting any question, he cannot claim any protection under Section 132 and he would be liable for the offence under Section 500,I.P.C. 41 The Rangoon High Court held that Section 132, overrides the provisions of the Penal Code and it gives complete protection if the witness is compelled to answer, but that protection must be claimed either directly or impliedly. 42 Where in a prosecution for the offence of cheating, the petitioners were cited as witnesses, it was held that the petitioners were bound to answer all questions and they could not be prosecuted for their answers in view of proviso to Section 132. 43 In the case of a witness making defamatory statements in the witness box, it was held that the witness who was proceeded in a suit for damages in a civil act ion can set up the privilege and the immunity provided under Section 132. But no such privilege is recognised by the Penal Code beyond the limits of exceptions embodied in Section 499 , IPC and the principles of English law cannot be invoked by going beyond what is enacted in the said exceptions. But where the witness is compelled by the court to make such a statement in answer to a question he can claim protection under the proviso to the section, unless the statement is false.44 The distinction between 8th Exception to Section 499 , IPC and the Proviso to Section 132 is that the former excludes a statement from the definition of defamation altogether, whereas the latter excludes prosecution for defamation and bars proof of the accusation in a trial for a defamation. The proviso to Section 132 assumes that the accusation contained in the answer is punishable as defamation under Section 500,I.P.C. Consequently in order to consider whether proviso is applicable or not, it is irrelevant to consider whether the answer contains a defamation underSection 500,I.P.C. or not, as the proviso will apply even though the statement is not made in good faith and hence is not covered by exception 8 toSection 499,I.P.C. The proviso toSection 132 would come into play when the witness was compelled to give the answer to the questions. When witnesses in their chief examination itself voluntarily and without any protest or hesitation give certain answers containing defamatory matter they would not be entitled for protection under the proviso to Section 132. And so they can be prosecuted for defamation and the accusation made by them in their depositions can be proved against them. The compulsion contemplated by the proviso should be special compulsion by the Presiding Officer of the court, and it must arise from refusal of his prayer to be excused. 45 W IGMORE (3rd Ed., Para. 2192) observes: "A person, by virtue of his very existence in civilised society, owes a duty to the community to disclose for the purposes of justice all that is in his control which can serve the ascertainment of the truth. A citizen owes his Government a duty to attend its courts and give his testimony whenever he is properly summoned. 46 In para 2196, it is observed: "The claim of privilege can be made solely by the witness himself, the privilege is purely personal." 31 Queen-Empress v. Ganu Sonba, (1888) 12 Bom 440. 32 Moher Sheikh v. Queen Empress, (1893) 21 Cal 392. 33 State of Orissa v. Aitu Durva, (1963) 2 Cr LJ 475 : ILR 1962 Cut 965; relying on State of Maharashtra v. Laxman, AIR 1962 SC 1204; Peddabba Reddi v. Varada, AIR 1929 Mad 236. 34 Usha Devi v. Jagdish Prasad, 1988 Cr LJ 1239(All) . 35 Manjayya v. Sesha Shetty, (1888) 11 Mad 477. 36 Peddabba Reddi v. Varada Reddi, (1928) 52 Mad 433 : AIR 1929 Mad 236. 37 Peddabba Reddy v. Varada Reddy, AIR 1929 Mad 236. 38 Emperor v. Cunna, AIR 1920 Bom 270(FB) . 39 Bai Shanta v. Umrao Amir, (1925) 28 Bom LR 1 : ILR 50 Bom 162 FB : AIR 1926 Bom 141.

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40 Haider Ali v. Abru Mia, (1905) 32 Cal 756. 41 Surajmal v. Ramnath, AIR (1928) Nag 58. 42 Rasool Bhai v. R, AIR 1939 Rang 371. 43 Teneja v. State of Rajasthan, (1970) Cr LJ 945(Raj) . 44 Gayaram v. Shanti Kinwar, ILR 1971 MP 373; relying on Haji Ahmed Hussain v. State, AIR 1960 All 623; Rajinder Kishore v. Durga Sahi, AIR 1967 All 476; Brijlal Prasad v. Mohanlal Das, ILR (1940) Nag 125; Bobba Bala Tripurasdari v. Building Inspector Municipality, Vijayawada, (1983) 2 Chand. LR 406(Crl) : 1982 Cr LJ 180 NOC (AP). 45 Chotkan v. State, AIR 1960 All 606; Gir Raj v. Sulla, AIR 1965 All 597; Hemraj Poonam Chand v. Babulal Bhagirath, AIR 1962 MP 241. 46 Blackmer v. United States, (1931) 284 US 421 : 76 L. Ed 375.

11. EXCEPTIONS TO THIS SECTION Section 94 of the Representation of People's Act of 1951 is an exception to Section 132 and so a voter cannot be compelled to divulge to whom he voted, as the secrecy of the ballot has to be maintained. 47 Protection under the proviso to this section cannot be granted to an officer of a company with regard to answers given by him in his public examination which might tend to incriminate him and can be used in criminal as well as civil proceeding that might ensue, even though he may be compelled to give the same by reason of the provisions of S. 478(5) of the Companies Act , 1956. 47 Raghubir Singh Gill v. Gurcharan Singh, AIR 1980 SC 1362. 48 Gill & Co. (P) Ltd. v. Madhav Mills, (1969) 72 Bom LR 679.

48

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Ratanlal & Dhirajlal: Law of Evidence, Updated 23rd Edition/THE INDIAN EVIDENCE ACT (ACT 1 OF 1872)/PART III PRODUCTION AND EFFECT OF EVIDENCE/CHAPTER IX OF WITNESSES/S. 133.

CHAPTER IX OF WITNESSES S. 133. Accomplice. An accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. 1. PRINCIPLE AND SCOPE

This section states that an accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. The first part of the section may not be necessary because Section 118 provides that all persons are competent to testify, subject to certain exceptions. Reference may be made to Section 114, Illus. (b), which states that an accomplice is unworthy of credit, unless he is corroborated in material particulars. This section states that a conviction based on the uncorroborated testimony of an accomplice is not illegal. P EACOCK C.J. observed: "I am of opinion that a conviction upon the uncorroborated testimony of an accomplice is legal. This is not a new law, nor founded upon a new principle. This point was decided in England, as far back as the 10th Dec., 1662 after conference with all the judges". 49 The Bombay High Court observed: "The rule in Section 114 and that in Section 133 are part of one subject and neither section is to be ignored in the exercise of judicial discretion. The illus. (b) is, however, the rule, and when it is departed from, the court could show, or it should appear, that the circumstances justify the exceptional treatment of the case." 50 The Madras High Court held by a majority that "It is impossible consistently with the Indian Evidence Act to hold that, as a matter of law, the presumption must be raised and rebutted by special circumstances or by corroboration."51 S UNDERA I YYAR . J., observed: "It would be an ordinary right to require a judge to draw the presumption, but it is not necessary to draw the presumption in every case." This section is the only absolute rule of law as regards the evidence of an accomplice. But illustration (b) to S. 114 is a rule of guidance to which also the Court should have regard, It is, however, not a hard and fast presumption incapable of rebuttal, a presumption juris et de jure . 52 The combined effect of this section and Section 114, illustration (b), is that though the conviction of an accused on the testimony of an accomplice cannot be said to be illegal, yet the Courts will, as a matter of practice, not accept the evidence of such a witness without corroboration in material particulars. 53 The Privy Council observed: "Reading these two enactments together, the Courts in India have held that whilst it is not illegal to act upon the uncorroborated evidence of an accomplice it is a rule of prudence so universally followed as to amount almost to a rule of law that it is unsafe to act upon the evidence of an accomplice unless it is corroborated in material respects so as to implicate the accused; and further that the evidence of one accomplice cannot be used to corroborate the evidence of another accomplice. The law in India, therefore, is substantially the same on the subject as the law in England, though the rule of prudence may be said to be based upon the interpretation placed by Courts on the words "corroborated in material particulars" in Illus. (b) to Section 114." 54

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The Supreme Court, dealing with Section 133 and Section 114, illus. (b) observed "There is no antithesis between S-133 and illus (b) to S-114 of the Evidence Act, because the illustration only says that the court 'may' presume a certain state of affairs. It does not seek to raise a conclusive and irrebuttable presumption". It is hazardous, as a matter of prudence, to proceed upon the evidence of a self-confessed criminal, who, so far as an approver is concerned, has to testify in terms of the pardon tendered to him. The risk involved in convicting an accused on the testimony of an accomplice, unless it is corroborated in material particulars, is so real and patent that what during the early development of law was felt to be a matter of prudence has been elevated by judicial experience in to a requirement of law. It is necessary to understand that what was hardened into a rule of law is not that this conviction is illegal, if it proceeds upon the uncorroboration testimony of an accomplice but that the rule of corroboration must be present to the mind of the judge and that corroboration may be dispensed with only if peculiar circumstances of a case make it safe to dispense with it. 55 The classic judgement which was followed in several cases including the Supreme Court was rendered by L ORD R EADING in R. v. Baskerville 56 "There is no doubt that the uncorroborated evidence of an accomplice is admissible in law. But it has been long a rule of practice at common law for the judge to warn the jury of the danger of convicting a prisoner on the uncorroborated testimony of an accomplice, and in the discretion of the judge, to advise them not to convict upon such evidence, but the judge should point out to the jury that it is within their legal province to convict upon such confirmed evidence...This rule of practice has become virtually equivalent to a rule of law, etc..We hold that evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect the accused with the crime. In other words, it must be evidence which implicates him, that is which confirms in some material particular not only the evidence that the crime has been committed but also that prisoner committed it. The test applicable to determine the nature and extent of the corroboration is thus the same whether the case falls within the rule of practice at common law or within that class of offence for which corroboration is required by statute. The nature of the corroboration will necessarily vary according to the particular circumstances of the offence charged. It would be in high degree dangerous to attempt to formulate the kind of evidence which would be regarded as corroboration, except to say that corroborative evidence which shows or tends to show that the story of the accomplice that the accused committed the crime it true, not merely that the crime has been committed by the accused..The corroboration need not be direct evidence that the accused committed the crime; it is sufficient if it is merely circumstantial evidence of his connection "with the crime". The above view was followed by several courts in England and also in India.

57

The Supreme Court observed: "The combined effect of Sections 133 and 114 Ill. (b) may be stated as follows: According to the former which is a rule of law, an accomplice is competent to give evidence and according to the latter which is a rule of practice it is almost always unsafe to convict upon his testimony alone. Therefore, though, the conviction of an accused on the testimony of an accomplice cannot be said to be illegal yet, the courts will, as a matter of practice, not accept the evidence of such a witness without corroboration in material particulars". 58 A judge is not required to adopt the English rule as laid down in.

59

The Privy Council has laid down in Mahadeo v. King 60 which is a decision on appeal from Fiji Islands, where the English law of evidence is in force, that the evidence of an accessory must be corroborated in some material particular not only bearing upon the facts of the crime but upon the accused's implication in it. Evidence of one accomplice is not available as corroboration of another. It further holds that this rule of corroboration, which was long a rule of practice, is now virtually rule of law. In keeping with this principle the House of Lords have again emphasised that a clear warning must be given to the jury that "it is dangerous to convict" and not merely telling them to proceed with caution. The facts of R v. Bagshaw 61 were virtually repeated in R. v. Spencer 62 . The accused were charged with various offences of maltreating patients in the same mental hospital which figured in R. v. Bagshaw. The prosecution evidence was wholly based upon the evidence of patients themselves. In such cases the Court may feel unsafe to convict because of the character of such witnesses. 63 The majority of the decisions of the Bombay 64 , the Calcutta 65 and the Lahore High Courts 66 and the late Chief Court of Oudh. 67 and Full Bench decision of the Madras High Court 68 have taken the same

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view. The Allahabad 69 the Patna 70 , the Rangoon 71 and the Nagpur 72 High Courts have taken a different view. The Calcutta High Court has held that it is now the universal practice of the Courts not to convict where an accomplice's evidence is uncorroborated. Where the trial is by jury, a conviction after clear warning cannot be set aside. 73 In special circumstances the uncorroborated testimony of an accomplice can be relied upon for basing a conviction. 74 There is no violation of Arts. 14 and 20 of the Constitution of India when there is power to tender an accomplice as a witness instead of trying him as an accused. 75 An enquiry officer, conducting enquiry against a public servant is not bound by the strict rules of law or evidence. Hence, illus (b), S. 114 of the Evidence Act cannot be literally applied and it is open to his officer to hold a public servant guilty even on the basis of the evidence of an accomplice. 76 Even in civil case, while assessing evidence the court has to require corroboration of evidence of an accomplice for no other reason but that the witness has a serious stain upon his evidence as a participant in a nefarious act . 77 "Accomplices are usually interested and always infamous witness and whose testimony is admitted from necessity, it being often impossible without having recourses to such evidence, to bring up the principal offenders to justice". T AYLOR : A Treatise on the Law of Evidence, (1931) Vol. 1, para 967. 49 Queen v. Elahee Buksh , 5 WR (Cri) 80 (FB). 50 Queen Empress v. Chagan Dayaram, (1890) 14 Bom 331. 51 Muthukumaraswamy Pillai v. R ., ILR 35 Mad 397 (SB of five judges). 52 Emperor v. Shrinivas Krishna, (1905) 7 Bom LR 969. 53 Bhiva Doulu Patil v. State of Maharashtra, (1962) 65 Bom LR 347 : AIR 1963 SC 599. 54 Bhuboni Sahu v. The King, AIR 1949 PC 257, 258. 55 Abdul Sattar v. Union Territory of Chandigarh, AIR 1986 SC 1438; C. Chellappan v. State of Kerala, AIR 1979 SC 1761; Dagdu v. State of Maharastra, AIR 1977 SC 1579; Union Territory of Arunachal Pradesh v. Lag Tagum, 1982 Cr LJ 1519(Gau) (DB); Chinna Gowda etc. v. State of Mysore, 1965 (2) SC J 500; Bhiua Doulu Patil v. State of Maharashtra, AIR 1963 SC 599; Bhuboni Sahu v. King, AIR 1949 PC 257; Rex v. Baskerville, 1916 (2) KB 658; Khushal Rao v. State of Bombay, AIR 1958 SC 22; Kilimanni Abu v. State of Kerala, 1965 (2) Cr LJ 557(Ker) ; Nand Lal More v. State, 1965 (1) Cr LJ 393(Punj) ; Kunj Behari v. State, AIR 1951 Pat 84; Abraham John v. State of Kerala, 1969 Cr LJ 1577(Ker) ; Suraj Mal v. Sundar Mal Patwa, ILR (1965) Madh Pra. 800. 56 (1916) 2 KB 658 : 86 LJKB 28; Sant Lal v. State of U.P., 2006 CrLJ 690, 691 (para 5). 57 See Davies v. D.P.P., (1954) 1 All ER 507; In re : Venkata Subba Reddy, 54 Mad 931 : AIR 1931 Mad 689; Noor Mohammed v. R, 38 Cal WN 108; Khadim v. R, AIR 1937 Sind 162; Safdar Ali Shah v. R, AIR 1941 Lah 82; Ramdayal Kahar v. R., AIR 1942 Pat 271; Bishnu Pada v. R., AIR 1945 Cal 441; In re : Chinnasami, AIR 1960 Mad 462; In re : Padma Raja Chetty, (1949) 2 MLJ 428; Rameshwar Kalyan Singh v. State, AIR 1952 SC 54; Vemireddy v. State of Hyderabad, AIR 1956 SC 379; Jnanendra Nath v. State of W.B., AIR 1959 SC 1199; In re : Bassi Redy, 1972 Cr LJ 1141(Mys) ; Haroom Haji Abdulla v. State of Maharashtra, AIR 1968 SC 832; L.S. Raju v. State of Mys., AIR 1953 Bom 297 DB; Kashmira Singh v. State of M.P., AIR 1952 SC 159; Ramchand v. State, AIR 1952 HP 57; Gorakh Nath v. Emperor, AIR 1935 All 86; Gurnam Singh v. State of Raj., 1979 Cr LJ 215(Noc) ; Emperor v. Mohiuddin Sahib, 25 Mad 143; Emperor v. Rama Saran, ILR 8 All 306; Crown v. Karam Singh, Sadhu Singh, AIR 1951 Pepsu 73 DB; Lalchand Khatri v. State, AIR 1961 Pat 260; Kalyan Singh v. State of Raj.; Lachmandas v. State, (1971) 2 Delhi 426; State of Bihar v. Basawan Singh, AIR 1958 SC 500; Bhan Singh Jubar Singh v. State, 1957 Cr LJ 67(MB) ; Bhaskaran Nair v. State of Kerala, ILR 1970 2 Ker 283; Gurunath K. Reddy v. V. Seshaiah, AIR 1966 AP 331. 58 Bhiva Doulu Patil v. State of Maharashtra, AIR 1963 SC 599, following R v. Baskerville, (1916) 2 KB 658 : 86 L.J.K.B. 28 and Bhuboni Sahu v. Kind, 1949 PC 257. See also Empress v. Govindam, ILR 9 All 528; R. v. Ram Saran, (1885) 8 All 396; Rattan Dhanuk v. Emperor, ILR 8 Pat 235; Nanhak Ahir v. Emperor, ILR 13 Pat 529; Surajpal Singh v. Crown, ILR (1938) Nag 516; King v. Nga Myo, ILR (1938) Ram 190(FB) : AIR 1938 Rang 177 FB. 59 R. v. Baskerville, (1916) 2 KB 658 : 86 L.J.K.B. 28; Bereng Griffith Lerotholi v. King, AIR 1950 PC 10.

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60 (1936) 38 Bom LR 1101, PC followed in Surajpal Singh v. Crown, ILR (1938) Nag 516. 61 (1984) 1 All ER 971. 62 (1985) 1 All ER 673. 63 For comments see All ER Annual Review 1985. 64 Queen-Empress v. Maganlal, (1889) 14 Bom 115, 119; Queen-Empress v. Chagan Dayaram, (1890) 14 Bom 331. 65 Emperor v. Lalit Mohan Chuckerbutty, (1911) 38 Cal 559; S.B. Ambica Charan Roy v. Emperor, (1931) 35 CWN 1270(SB) ; Bimalkrishna Biswas v. Emperor, (1935) 62 Cal 819, Contra, Nirmal Jiban Ghosh v. Emperor, (1934) 62 Cal 238(SB) followed in Purnanand Das Gupta v. Emperor, ILR (1939) 1 Cal. 66 Sher Singh v. Crown, (1932) 14 Lah 111; Katar Singh v. Crown, (1935) 17 Lah 518; Nikka v. Crown, (1936) 17 Lah 541. 67 Baboo Singh v. King-Emperor, (1935) 11 Luck 662; Beni Madho v. King-Emperor, (1933) 9 Luck 22; Gaya Prasad v. King Emperor, (1931) 6 Luck 658; Lale v. King Emperor, (1929) 5 Luck 101, Contra Jagannath alial Khairati v. King Emperor, 1941 17 Luck 516. 68 Rajgopal B.K. In re., ILR (1944) Mad 380 F.B. : AIR 1944 Mad 117. The following cases are not referred to in the Full Bench case and they laid down that an accomplice need not be corroborated in material particulars before it can be acted upon and that it is open to the Court to convict upon the uncorroborated testimony of an accomplice if the Court is satisfied that the evidence is true; King Emperor v. Nilakanta, (1912) 35 Mad 247(SB) ; Muthukumaraswami Pillai v. King-Emperor, (1912) 35 Mad 397 FB. 69 Queen-Empress v. Gobardhan, (1887) 9 All 528; Queen Empress v. Ram Saran, (1885) 8 All 306. 70 Rattan Dhanuk v. King-Emperor, (1928) 8 Pat 235; Nanhak Ahir v. King-Emperor, (1934) 13 Pat 529. 71 King v. Nga Myo, ILR (1938) Ran 190 210, FB. 72 Surajpalsingh v. Crown, ILR (1938) Nag 516 and Mohanlal v. King-Emperor, ILR 1946 Nag 982. 73 Ganeshdas Mimani v. King, (1950) 1 Cal 462. 74 State v. Sardara, 1974 Cr LJ 43(Raj) ; State v. Anil Ranjan Dutta, AIR 1952 Cal 534; Rangaswami v. State of Kerala, ILR 1958 Ker 420; Data Ram v. State of Rajasthan, 1977 Cr LJ 1428(Raj) . 75 Laxmipat Choraria v. State of Maharashtra, AIR 1968 SC 938. 76 Anil Behari Saran v. State of Bihar, AIR 1967 Pat 43; Made Gowada v. State of Mysore, AIR 1966 Mys 220. 77 Surajmal v. Sundarlal Patwa, ILR 1965 Madh Pra 800.

2. ACCOMPLICE: WHO IS AND WHO IS NOT An accomplice is a person who participates in the commission of the actual crime charged against an accused. He is to be a participes criminis . There are two cases, however, in which, a person has been held to be an accomplice even if he is not a participes criminis : 34)   Receivers of stolen property are taken to be accomplices of the thieves from whom they receive goods, on a trial for theft. 32)   Accomplices in previous similar offences committed by the accused on trial are deemed to be accomplices in the offences for which the accused is on trial, when evidence of the accused having committed crimes of identical type on other occasions be admissible to prove the system and intent of the accused in committing the offence charged. 78 Under S. 337, (old) Cr. PC (now Section 306) "an accomplice" is any person supposed to have been directly or indirectly concerned or privy to the offence. 79 The word 'accomplice' is inter-changeable with an associate in crime who is so connected with the criminal act done by his confederate, that he on account of the presence of necessary mens era and his participation in the crime in some city or the other can be tried along with that confederate actually

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perpetrating the crime. 80 A person who is present at the commission of the crime and who is interested in not disclosing the commission of the crime is a person who is in the position of an accomplice. 81 When a witness goes on watching the alleged offence from beginning to end without raising any hue and cry, the witness is none else than an accomplice. 82 Witnesses to whom assurances are given are themselves guilty of offences and they are accomplices. 83 Leaders of a community accepting money for voting from a candidate at an election are accomplices. 84 The person who offers a bribe to a police officer was treated as an accomplice. 85 The person, who is willing to offer bribe in order to get his work done and having got the work done, he may send a complaint, is particeps criminis in respect of the crime committed and thus is an accomplice. 86 The following have been held to be accomplice: An ekka driver who took passengers with criminal intention and aided them to escape from the place of offence. 87 Who aids, knowingly of the offence, in the disposal of the property.

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Police agents in gambling cases. 89 Persons without any judicially recognised amnesty requires corroboration. in 1971 SC 520. Pimps and prostitutes are accomplices and require corroboration.

90

reversed on another point

91

In view of Section 165 A of (now repealed ) a complainant who gives the bribe is in no better position than an accomplice in a case of bribery. 92 A person cannot be said to be an accomplice unless he had consciously participated in the commission of the crime so that he could along with other accused be jointly indicted for the criminal act . Where a person is not concerned with the commission of the crime for which the accused is charged and happens to be merely one cognizant of a crime or one who has made no attempt to prevent it or disclose its commission, he cannot be said to an accomplice in this crime. All accessories before the fact, if they participate in the preparation for the crime are accomplices, but if their participation is limited to the knowledge that the crime is to be committed they are not accomplies. Whether a person is or is not an accomplice depends upon the facts of each particular case. Persons to be accomplices must participate in the commission of the same crime as the accused persons. 93 A rustic village labour who acted according to his master's advice under threat of death is not disclosing for sometime the offence committed, by his mater but thereafter he disclosed the same to the informant, the police and before the Magistrate, cannot be called an act ive participant in crime i.e. an accomplice. 94 If a man sees the perpetration of a crime that does not give information to any one, he might be regarded as an accomplice. 95 A witness, who assisted he criminals to the extent of keeping a look out to see whether the police were approaching, is in the position of an accomplice. 1 A Police Officer by posing himself to be son of a rich planter represented that he would exchange his genuine currency notes for counterfeit notes, which he wanted to distribute amongst his labourers towards their wages. As this was an illegitimate trap, the Police Officer and his associates were held to be accomplices and their evidence could not be accepted without effective corroboration. 2 The evidence of an accomplice must be confirmed not only as to the circumstances of the crime but also as to the identity of the prisoners. The corroboration need not be by direct evidence that the accused committed the crime. It is sufficient if there is circumstantial evidence of his connection with the crime. The judge should warn the jury of the danger of convicting a prisoner on the uncorroborated testimony of an accomplice and in his discretion advise them not to convict upon such evidence, but he should at the same time point out to them that it is within their legal province to disregard the caution and to convict upon such unconfirmed evidence if believed by them. 3 It is the invariable practice of the Courts to require the corroboration by an independent witness of so much of the evidence of an accomplice as goes to identify the accused person as the offender 4 . Such corroboration ought to be that which is derived from unimpeachable or independent evidence. 5 It may be noted that the above principle may prove to be an extra step and a dangerous one, as in some cases people out of fear of being victimised may not dare to give out information to anyone. The

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safe rule seems to be that if such person has necessary mens rea (guilty mind) then he can be said an accomplice. 6 A witness, who is not a guilty associate in crime or who does not sustain such a relation to the criminal act, is not an accomplice as the element of mens rea is entirely absent. A witness who only happens to be conversant with a crime or who makes no attempt to prevent it or who does not disclose it, is not an accomplice and the rule of practice as to corroboration does not apply to his evidence. 7 There is no warrant for the proposition that if a man sees the perpetration of a crime and does not give information of it to anyone else, he might well be regarded as an accomplice. 8 A man who quietly looks on at a murder, may not necessarily be an accomplice; but he is not a safe witness against the alleged murder. 9 The fact that a person is engaged to witness a crime does not make him an accomplice unless he is proved to have participated in the commission of the crime. 10 A pretended confederate such as a detective, spy or decoy is not an accomplice. "If such a person has made himself an agent for the prosecution before associating with the wrongdoers or before the act ual perpetration of the offence he is not an accomplice; but he may be an accomplice if he extends no aid to the prosecution until after the offence has been committed. 11 A person's knowledge of the deliberations in the course of which a dacoity was planned, his having seen the accused departing for a particular purpose or his having accompanied the accused when the latter went for disposal of the stolen articles cannot make him an accomplice. 12 Persons giving illegal gratification under coercion and fear of being harassed are not accomplices. 13 Witness printing offending leaflet would not make him an accomplice. 14 An innocent purchaser for value of gold without notice that the gold was tainted with the vice of smuggling is in no sense liable to be regarded as an accomplice. 15 Accused engaged a coolie to carry bundle containing stolen property but the coolie has no knowledge that bundle contained stolen articles. The coolie is not in a position of an accomplice. 16 A witness who merely lends himself to a scheme for the purpose of catching the guilty is not an accomplice. 17 The clerk in the office of the Municipal Corporation was a subordinate of the accused. He was actually working directly under accused No. 2 and at the instances of the accused he procured his municipal labour and material and carried out his repairs to the house of accused No. 1. The clerk was not a party to the offence under Section 409 , IPC and not an accomplice. 18 A witness who is a relative of this deceased shares his hostility to the victim cannot be classed as an accomplice. 19 A police officer who has no intention to and does not accept an amount offered to him as bribe in order to enrich himself, but who merely lays a trap in order to bring to book his person offering it and to bring him to punishment for attempting to corrupt a public servant is not an accomplice. 20 A prosecutrix in a rape case is not an accomplice. 21 Generally stated, an abducted woman is not an accomplice. 22 A Food Inspector is not an accomplice. 23 A Minister informing the Anti-Corruption Bureau and filing a complaint against the person offering him bribe to gain certain favour, cannot be equated with an accomplice and the accused could be convicted on his uncorroborated testimony. 24 Likewise the person paying bribe so as to expose the conduct of a public servant and as directed by the police, is not an accomplice. 25 Where a girl of eighteen years old had witnessed the murder of her sister at the hands of her brother-in-law, the husband of the deceased and she was made co-accused of the offence by the police and she was charge-sheeted alongwith main accused, and her statement showed that she nowhere stated about her direct or indirect involvement in the crime and her entire statement was exculpatory and she did not incriminate herself in any manner, she could not be held to be an accomplice. 26 The burden of proof rests on the person who alleges that particular witness is an accomplice.

27

An accomplice has to be distinguished from a co-accused. The statement of a co-accused may be admissible in certain circumstances, though not examined, but not that of an accomplice who is available to be examined. 28 A distinction has to be drawn between an accomplice and a decoy witness, the former being a person who joins another with the intention of aiding the commission of an offence and the latter who is instrumental in provoking the commission of the offence with the object of discovering the offence and detecting the offender. 29 The person offering a bribe to a pubic officer is in the nature of an accomplice in the offence of accepting illegal gratification but the nature of corroboration required in such case should not be subjected to the same rigorous tests which are generally applied to a case of an approver. 30 In trap cases of bribe-giving, the witnesses who are concerned in the success of the trap, are not accomplices but only partisan or interested witnesses and their evidence is to be tested in the same

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way as other interested evidence is tested and corroboration in the case of such witnesses can be in a general way and not as required in material particulars as in the case of an approver. 31 78 R.K. Dalmia v. Delhi Admin., AIR 1962 SC 1821 : 1962 2 Cr LJ 805(SC) ; Davies v. Director of Public Prosecution, (1954) AC 378; Mohd. Hussain Umar v. K.S. Dalip Singhji, AIR 1970 SC 45; State of Assam v. Upendra Nath, Raj Khowa, 1975 Cr LJ 354(Assam) ; Ramaswami Gounden v. Emperor, (1903) 27 Mad 271; Jagannath v. Emperor, (1941) 17 Luck 516 : AIR 1942 Gudn 221; Kishan Chand Mangal v. State of Rajasthan, AIR 1982 SC 1511. 79 State v. Murli, AIR 1957 All 53 DB. 80 State v. Bashambher Dayal, AIR 1953 Pepsu 83(DB) ; K.S. Nirmal Kumar Singhji v. State, AIR 1954 Sau 55(DB) . 81 Behari Mandal v. State, AIR 1957 Ori 260(DB) ; Narayan v. State, AIR 1953 Hyd. 161(DB) . 82 Harnath v. the State, AIR 1952 Ajmer 49; Ranjit Singh v. State, AIR 1952 HP 81. 83 Sirajuddin v. Govt. of Madras, represented by the Chief Secy. Madras, AIR 1968 Mad 117. 84 Trilochan Singh v. Karnail Singh, AIR 1968 Punj 416 AB. 85 R v. Maganlal, ILR 14 Bom 115, 14 Bom 331 Supra . 86 M.O. Shamsudhin v. State of Kerala, (1995) 3 SCC 351 (para 12). See also Rameshwar v. State of Rajasthan, AIR 1952 SC 54 : 1952 CrLJ 547. 87 State v. Ram Avtar, AIR 1955 All 138. 88 Mavythalayan v. Emperor, AIR 1934 Mad 721. 89 State v. Jethanand, (1968) 9 Guj LR 832. 90 P. Sirajuddin v. Govt. of Madras, 1968 Cr LJ 493 : AIR 1968 Mad 117 reversed on another point in AIR 1971 SC 520. 91 Bhulu Mia v. State, AIR 1969 Cal 416 : 1969 Cr LJ 1553. 92 Panalal Damodar Rattni v. State of Maharashtra, AIR 1979 SC 1191. 93 Ranchhod v. State, AIR 1956 Madh Bha 262(DB) ; Anna v. State of Hyd., AIR 1956 Hyd. 99(DB) ; Abdul Munim Khan v. State of Hyd., AIR 1953 Hyd. 145; Ghulam Nabi v. State, AIR 1953 J&K 3; Vemireddy Satyanarayan Reddy v. State of Hyd., AIR 956 SC 379; Rameshwar Kalyan Singh v. State of Raj, AIR 1952 SC 54; State v. Mansingh Majhi, ILR 1973 Cut 967; State v. Abdul Aziz, (1971) 21 Raj 209; Md. Sardar v. State of H.P., 1988 Cr LJ Noc 80 AP. 94 Subash Chandra Panda v. State of Orissa, 2001 Cr LJ 4108 (para 13) (Ori). 95 Vemireddy Satyanarayan Reddy v. State, AIR 1956 SC 379; Umed Sheikh v. Emperor, 45 Cal LJ 581; Queen v. Chando chandalinee, (1875) 24 WR 55(Cr) ; Ishan Chandra v. Queen Empress, ILR 21 Cal 328; Loki Prasad v. State, AIR 1957 Ori 258; V. Jagannadham v. State, AIR 1952 Ori 164; Contra: Ramaswami Gounden v. Emperor, ILR 27 Mad 271; In re : Addanki Venkadu, AIR 1939 Mad 266; Nural Amin v. Emperor, AIR 1939 Cal 335 (can no longer be law). 1 Dhanapati De v. Emperor, (1944) 2 Cal 312. 2 Karim Kunju v. State, 1972 Cr LJ 292(Ker) ; Shiv Bahadur Singh v. State of Yidh. Pra., AIR 1954 SC 322; Ramjanam Singh v. Bihar State, AIR 1956 SC 643; Hiralal v. State of Haryana, AIR 1971 SC 356; Bhanu Prasad Hari Prasad Dave v. State of Gujarat, AIR 1968 SC 1323. 3 Ramarao v. State, ILR (1951) Nag 349. 4 Emperor v. Kostalkhan, (1902) 4 Bom LR 431; Queen-Empress v. Krishnabhat, (1887) 10 Bom 319. 5 Emperor v. Bajikrishna, (1904) 6 Bom LR 481. 6 In re : Ambujam Ammal , AIR 1954 Mad 326. 7 Ghudo v. King Emperor, ILR (1945) Nag 315. 8 Yemi Reddy Satyanaranayan Reddy v. State of Hyderabad, ILR (1956) Hyd. 386. 9 Kandhai Manfer v. State of Y.P., AIR 1953 Vind. Pra 38.

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10 State of Ori v. Minaketan Patnaik, AIR 1953 Ori 160(SB) ; Kunhaman v. State of Kerala, 1974 Ker LJ 328; Hayatu v. Emperor, AIR 1929 Lab 540. 11 Basheeruddin Ahamed v. State of Mysore, ILR (1951) Mys 464. 12 K.S. Nirmal Kumar Sinhji v. State, AIR 1954 Sau 55 DB. 13 Dalpat Singh v. State of Raj, AIR 1969 SC 262; G. Moogappa v. State, AIR 1961 Mys 44; Nyalchand v. State, AIR 1955 Sau 117; Kamini Kumar v. State, AIR 1971 Tri 26; Srinibas Mall v. Emperor, AIR 1947 PC 135; K.S. Nirmal Kumar Sinhji v. State, AIR 1954 Sau 55; P.K. Subbiah v. State, AIR 1952 Tri 1; Pyarey Mohan v. State, AIR 1956 All 358. 14 Yirendra Singh v. Yimal Kumar, AIR 1976 SC 2169; In re : Yeeral alias Kanal, AIR 1970 Mad 298; Hadu v. State, AIR 1951 Ori 53. 15 Yali Mahomed (M/s). v. C.T.A. Pillai, AIR 1961 Bom 48. 16 King Emperor v. Sheo Shanker Singh, AIR 1954 Pat 109(DB) ; Lachhi Ram v. State of Punjab, AIR 1967 SC 792. 17 State Govt. of MP v. Hiralal Tejulal, AIR 1952 Nag 58. 18 Chandrakant Yishwanath Jakkal v. State of Maharastra, 1978 Cr LJ 431(Bom) ; State of Assam v. Upendra Nath Raj Khowar, 1975 Cr LJ 354(Gau) DB. 19 Chellammal v. Packiam, 1976 Cr LJ 1666(Mad) . 20 Mahadeo Daunappa Gunaki v. State, 1952 Bom 435(DB) . 21 Sidheswar Ganghuly v. State of W.B., AIR 1958 SC 143, 147; A.W. Khan v. State, AIR 1962 Cal 641; Suresh Chand v. State of Haryana, 1976 Cr LJ 452. (See also commentary infra under the head Sexual offences). 22 State Govt. of Manipur v. K.G. Sarma, 1968 Cr LJ 1390(Manipur) ; State of HP v. Kala, AIR 1957 HP 42. 23 Babulal Hargovindas v. State of Gujarat, AIR 1971 SC 1277. 24 C.R. Mehta v. State of Maharashtra, 1993 Cr LJ 2863 (paras 13 and 30) (Bom). 25 Rajasingh v. State, 1995 Cr LJ 955 (para 10) (Mad) explaining and distinguishing State of Bihar v. Basawan Singh, AIR 1958 SC 500 : 1958 Cr LJ 976. 26 Rakesh Kumar Singh v. State of Assam, 2003 CrLJ 3206, 3208 (para 10) (Gau) : 2003 (4) Cur Cri R 9 : 2003 (2) DMC 447 : 2003 (2) Gau LT 126 : 2003 (2) Gauhati LR 529. 27 Kamini Kumar v. State, AIR 1971 Tri 26. 28 Hadu v. State of Orissa, 1951 Ori 53(DB) ; Des Raj Sharma v. State, AIR 1951 Simla 14. 29 State v. Bashamber Dayal, Naib Tehsildar, AIR 1953 Pepsu 82 DB; Ambalal Motibhai Patel v. State, AIR 1961 Guj 1 DB; In re : Ambujam Ammal, AIR 1954 Mad 326; T.A. Basheerruddin Ahmed v. Govt. of Mysore, AIR 1952 Mys 42(DB) ; K.H. Bhattacharjee v. Emperor, AIR 1944 Cal 374; Kesho Pershad v. State, AIR 1967 Del 57; T. Narayan Rao v. Republic of India, 1977 Cr LJ 1586(Ori) ; Miyabhai v. State, AIR 1963 Guj 188; Harak Chand v. State, AIR 1954 Madh B 145. 30 M.O. Shamsudhin v. State of Kerala, (1995) 3 SCC 351 (para 12). See also Rameshwar v. State of Rajasthan, AIR 1952 SC 54 : 1952 CrLJ 547; Anand Parkash v. State of Haryana, 2008 CrLJ 1825, 1827 (para 7) (P&H); Re : Ram Jaspal Kanungo v. State of Punjab , 1991 (2) Rec Cri R 547 (P&H). 31 M.O. Shamsudhin v. State of Kerala, (1995) 3 SCC 351 (para 22). See also Rameshwar v. State of Rajasthan, AIR 1952 SC 54.

3. ACCESSORIES AFTER THE FACT Three conditions must unite to render one an accessory after the fact, viz 1. the felony must be complete, 2. the accessory must have knowledge that his principal committed the felony and, 3. his accessory must harbour or assist the principal felon. 32

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An accessory after the fact may be an accomplice. Such accessory is not concerned with the main offence. Still he may be treated as an accomplice. 33 Whether or not accessories after the fact can be described as accomplices, their evidence is tainted evidence on the same footing as the evidence of an accomplice and requiring the same measure of corroboration. 34 Wife having illicit connection with accused and luring with him without raising alarm is accessory after the fact and is to that extent an accomplice. 35 The Supreme Court has held that the rule laid down in R. v. Baskerville 36 with regard to the admissibility of the uncorroborated evidence of an accomplice is the law in India also, so far as accomplices are concerned and it is not any higher in the case of sexual offences. The only clarification of the rule that is necessary for the purposes of India is where this class of offence is tried by a judge without the aid of jury. In such cases it is necessary, that the judge should give some indication in his judgement that he has had the rule of caution in his mind and should proceed to give reasons for considering it unnecessary to require corroboration on the facts of the particular case before him and show why he considers it safe to convict without corroboration in that particular case. There is, however no rule of law or practice that there must in every case be corroboration before a conviction can be allowed to stand. 37 The Supreme Court has also held that a conviction can be based on the uncorroborated testimony of an accomplice provided the judge has the rule of caution in mind. 38 Victim of rape. --In the case of rape, the evidence of prosecutrix that she had been forcibly subjected to sexual intercourse by accused along with co-accused when her conduct and circumstances indicates that she was consenting party, has to be disbelieved by court unless there is adequate corroboration. 39 A prosecutrix cannot be considered as an accomplice and her testimony cannot be equated with that of an accomplice in an offence. As a rule of prudence, however, court normally looks for some corroboration of her testimony, so as to satisfy its conscience that she is telling the truth and the person accused of rape on her has not been falsely implicated. 40 She is in fact a victim of crime and herevidence must receive the same weightage as is attached to an injured complainant or witness. 41 Corroboration is not the sine qua non for conviction in a rape case. The Indian courts refusing to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. There is no reason why the evidence of the girl or the woman who complains of rape or sexual molestation should be viewed with the aid of spectacles fitted with lenses tinged with doubt or disbelief or suspicion. To do so is to justify the charge of male chauvinism in a male dominated society. 42 There is no rule of law that her testimony cannot be acted upon without corroboration in material particulars. She stands on a higher pedestal than injured witness. In the latter case, there is injury on the physical form, while in the former it is physical as well as psychological and emotional. However, if the Court, on facts, finds it difficult to accept her version on its face value, it may search for evidence, direct or circumstantial to lend assurance to her testimony. Assurance, short of corroboration, as understood in the context of an accomplice, would suffice. 43 In case of rape independent confirmation of every material circumstances is not required and the corroboration of the evidence of the prosecutrix need not be direct evidence that the accused committed the crime but it is sufficient if it is merely circumstantial evidence of the connection with the crime. 44 Corroboration of evidence of a prosecutrix in trial under Section 366,Penal Code is not necessary. 45 What she said at or about time of occurrence being part of res gestae can be corroborative evidence of her evidence and conviction can be based on testimony of the prosecutrix. 46 In the case of rape on a girl of 7 years whose evidence was changing from time to time her evidence must be corroborated. 47 In the case of rape the evidence of the girl should carry more weight than the evidence of an ordinary witness. 48 32 State of Bihar v. Srilal Kejriwal, AIR 1960 Pat 459; Mahadeo v. King, AIR 1936 PC 242. 33 In re : Ambujam Ammal, AIR 1954 Mad 326; Surya Kanta v. R, AIR 1920 Cal 980 : Cal WN 119; R v. Burn, (1909) 11 Bom LR 1153. 34 Pudur Rangaswami v. State of Kerala, ILR 1958 Ker 420; Pt. Darshan Lal v. Munnosingh, AIR 1937 Oudh 258; Ismail v. Emperor, AIR 1947 Lah 220; In re : S.A. Sattar Khan, AIR 1939 Mad 283. 35 Bhairon Lal v. State, AIR 1953 Raj 131(DB) .

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36 (1916) 2 KB 658 : 86 L.J.K.B. 28. 37 Rameshwar v. State of Rajasthan, (1952) SCR 377; State of Bihar v. Basawan Singh, AIR 1958 SC 500. 38 Kashmira Singh v. State of Madhya Pradesh, AIR 1952 SC 159 : 1952 SCR 526; Bhairon Lal v. State, ILR (1952) Raj 669; State v. Autar Singh, AIR 1960 Punj 364. 39 Shri Rakshit Khosla v. State, ILR 1969 Delhi 653; Jarnail Singh v. State of Rajasthan, 1972 Cr LJ 824(Raj) ; Bijoy Kumar Mohapatra v. State, 1982 Cr LJ 2162(Ori) (DB); Ahamad Pillai v. State, AIR 1951 TC 167. 40 Gurcharan Singh v. State of Haryana, AIR 1972 SC 2661; Ram Murti v. State of Haryana, AIR 1970 SC 1029; Rameshwar v. the State of Rajasthan, AIR 1952 SC 54; R. v. Basker Ville, (1916) 2 KB 658; Sailendra Kumar Roy Choudhury v. Territory of Tripura, AIR 1959 Tri 11; Kshetrimayum v. Union Territory of Manipur, 1968 Cr LJ 690 (2); Gopi Shanker v. State of Rajasthan, AIR 1967 Raj 159; Idan Singh v. State of Rajasthan, 1977 Cr LJ 556 Raj; Raju v. State, (1977) 1 Kant 307; Idan Singh v. State of Raj., 1977 Cr LJ 556; Sheikh Zakir v. State of Bihar, AIR 1983 SC 911; Sidheswar Ganguly v. State of West Bengal, AIR 1958 SC 143; A.W. Khan v. State, AIR 1962 Cal 641; Harnath v. State, AIR 1952 Ajmer 49; Bhupinder Sharma v. State of H.P., (2003) 8 SCC 551 (paras 11 and 12) : AIR 2003 SC 4684 : 2004 CrLJ 1; State of Punjab v. Ramdev Singh, (2004) 1 SCC 421, 427 (para 14) : AIR 2004 SC 1290; Aman Kumar v. State of Haryana, (2004) 4 SCC 379, 385 (para 5) : AIR 2004 SC 1497 : 2004 CrLJ 1399; Sri Narayan Saha v. State of Tripura, (2004) 7 SCC 775, 777 (para 6) : AIR 2005 SC 1452; State of H.P. v. Shree Kant Shekari, (2004) 8 SCC 153, 160 (para 21) : AIR 2004 SC 4404 : 2004 CrLJ 4232; State of Chhatisgarh v. Derha, (2004) 9 SCC 699, 702 (para 6) : AIR 2004 SC 2636; Dinesh v. State of Rajasthan, (2006) 3 SCC 771, 775-76 (para 11) : AIR 2006 SC 1267. 41 Sri Narayan Saha v. State of Tripura, (2004) 7 SCC 775, 777 (para 6). 42 Bharwada Bhoginabhai Hirjibhai v. State of Gujarat, AIR 1983 SC 753; Rameshwar Kalyan Singh v. State of Rajasthan, AIR 1952 SC 54; Emperor v. Mahadeo Tatya, AIR 1942 Bom 121(FB) . 43 State of H.P. v. Shree Kant Shekari, (2004) 8 SCC 153, 160 (para 21) : AIR 2004 SC 4404 : 2004 CrLJ 4232. 44 Sheikh Zakir v. State of Bihar, AIR 1983 SC 911; Bhudanlal Sharma v. State, 1961 (1) Cr LJ 689(Ori) ; Emperor v. Mahadeo Tatya, AIR 1942 Bom 121(FB) ; Sidheswar Ganguly v. State of West Bengal, AIR 1958 SC 143; 45 Motiram Krishna Rao v. State of M.P., AIR 1955 Nag 121. 46 Santa Bala Dasi v. Sashi Bhusan Das, AIR 1953 Cal 332. 47 Arabinda Dey v. State, AIR 1953 Cal 206; Gangaram v. Crown, AIR 1950 Nag 9; (723 Evidence has not corroborated by medical evidence) Dulichand v. State, AIR 1952 Ajmer 54 (Girl 9, 10 yrs. Corroboration and mother held sufficient). 48 Bhagwat Prakash v. State, AIR 1956 All 22; Dharam Pal v. State, AIR 1971 HP 17.

4. BRIBERY The rule requiring corroboration of the evidence of an accomplice applies with very little force where the accused is charged with the offence of extorting a bribe and the accomplice is not a willing participant in the offence but a victim of that offence 49 . Persons coming technically within the category of accomplices cannot be treated precisely on the same footing. 50 The uncorroborated evidence of a witness who would be characterised as an accomplice being a bribe-giver is unworthy of credit. 51 Where a person had given bribe to the accused on previous occasions, it is proper to require the same degree of corroboration for his evidence in regard to the alleged bribe as in the case of an accomplice. 52 A person who offers bribe and another person who goes with him are clearly witnesses who are agents provocateur whose evidence needs corroboration. 53 In a bribery case, the payer's testimony carries little conviction in the absence of reassuring support. 54 In a bribery case the complainant is a partisan witness and it is not safe to rely upon his uncorroborated evidence. 55 The evidence of a punter and police investigating officer who are interested in securing a conviction, is unworthy of credit, and there is no reason why the principles applicable to the one type of witness who is unworthy of credit, http://viz.an accomplice should not apply to another type of witness who is unworthy of credit for different reasons. 56

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Where a person paying bribe and the accused are the only persons, one cannot expect corroboration nor that corroboration in every particular is essential. 57 Where it is not possible to get a number of witnesses to speak to the incident amounting to an offence of receiving illegal gratification or criminal breach of trust the only manner in which the evidence of the accomplice can be tested is by seeing whether it is consistent with this circumstances and the circumstantial evidence in the case. 58 In a case of bribery where the person who pays the bribe is not a willing participant in the offence but is really a victim of the offence, conviction of the accused may be based on the evidence of the person paying the bribe if there is a slight independent corroboration of his evidence. 59 Where the witness directly proving the tendering of the bribe is the full brother of the person to whom the bribe was offered his evidence has to be taken with some caution. 60 Though the witnesses who are willing parties to giving a bribe to the accused but are only act uated with the motive of trapping the accused, can be treated as partisan witnesses but not accomplices, their evidence cannot be relied upon without independent corroboration. 61 A person who pays a bribe to the accused, not voluntarily but merely with a view to render necessary assistance in the detection of the crime cannot be said to an accomplice in the commission of the offence under Section 161 , IPC (now repealed ), because he has not the mens rea that he is paying the amount to secure a favour from the accused. It cannot be said that he aided or abetted of offence of illegal gratification by the accused. 62 It does not seem to be law that if the money given as bribe is provided by a particular officer of the police then the evidence of all the witnesses becomes evidence of accomplices and must be looked at with the suspicion. 63 Independent corroboration on all material particulars from the evidence of panch and independent sources should be looked into by the Court before it can act on the testimony of the complaint in a trap case and the evidence of police officer cannot be used in order to corroborate the testimony of the complainant. 64 In an offence u/s. 51(1)(a) and (2) of Prevention of Corruption Act if the evidence of the police officer who laid trap is found reliable, corroboration is not necessary. 65 The officer functioning in the anti-corruption department must seriously endeavour to secure really independent and respectable witnesses, so that the evidence in regard to the trap inspires confidence in the mind of the court and the court is not left in any doubt as to whether or not any money was paid to the public servant by way of bribe. They should insist on observing this safeguard for the protection of public servants against whom a trap may have been laid. 66 In a case under the prevention of Corruption Act, for accepting the illegal gratification, when the circumstantial evidence is consistent with the guilt of the accused and not with his innocence, the accused can be convicted and the question whether a trap witness is independent or not becomes immaterial. 67 The decoy who is not acting for gain, but being himself the victim of the demand helps the authority spontaneously from a sense of duty, is a reliable and respectable witness. 68 Where there was the sole evidence of only the decoy witness about the taking of bribe by the accused and there was no other evidence either direct or otherwise and the explanation given by the accused is probable, the conviction of the accused is not proper. 69 Where a trap witness was a person who was in the habit of bribing station masters in order to secure the booking of his goods and his story was that only because the Police Officer contacted him, he became a party to the trap, it was held the witness is in the position of an accomplice rather than an honest trap witness. 70 Whether the criminal tendencies of a man might be, he has a right to expect that he will not be deliberately tempted beyond the powers of his frail endurance and provoked into breaking the law and this at the instance of those who are the guardians and keepers of the law. Where such method is employed, that alone might make the conviction illegal. 71 The evidence of search witness can provide independent corroboration to the evidence of a bribe giver as a trap witness. 72 49 Emperor v. Papa Kamalkhan, (1935) 37 Bom LR 366 : ILR 59 Bom 486; Deo Nandan Pershad v. Emperor, (1906) 33 Cal 649; See also Yusuf Abdul Aziz v. State of Bombay, AIR 1954 SC 321. 50 King Emperor v. Malhar, (1901) 3 Bom LR 694 : (1901) 26 Bom 193; Kamala Prasad v. Sital Prasad Sup; Banu Singh v. Emperor, (1906) 33 Cal 1353. 51 Mehar Singh Hazara Singh v. State of Pepsu, AIR 1955 Pepsu 156; R.R. Chari v. State, AIR 1959 All 149; Manohar Rao Srinivas Rao v. State, ILR 1973 Bom 1234; P.K. Subbaiah v. State, AIR 1952 Tri 1; Kewal Krishan v. State of J&K, 1975 Cr LJ 1963(J&K) ; Dewan v. State, 1988 Cr LJ 1005(Ker) .

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52 M.M. Gandhi v. State of Mys., AIR 1960 Mys. 111(DB) . 53 Nitya Nand Premlal v. State, AIR 1954 Punj. 89(DB) . 54 Raghubir Singh v. State of Haryana, AIR 1974 SC 1516. 55 Pandurang Laxman v. State, AIR 1959 Bom 30; C.I. Emden v. State of U.P., AIR 1960 SC 548. 56 Miya Bhai Pir Bhai v. State, AIR 1963 Guj 188. 57 In re : K.Y. Ayya Swamy, AIR 1965 AP 105(DB) . 58 State v. Narayanan, AIR 1952 Trav. Co. 128(DB) ; C.M. Narayan v. State of Trav. Co., AIR 1953 SC 478. 59 Narayan Prashad v. King Emperor, ILR (1948) Nag 276; State of Kerala v. Samuel, AIR 1961 Ker 99; P.K. Subbiah v. State, AIR 1952 Tri 1; Kewal Krishan v. State, 1975 Cr LJ 1963(J&K) . 60 Bhajahari Mandal v. State, AIR 1956 Cal 385 DB; Bhajahari Mondal v. State of West Bengal, AIR 1959 SC 8; Chadala Yada Subba Rao v. Kasu Brahmhananda Reddy, AIR 1967 AP 155. 61 Shiv Bahadur Singh v. State of Yindh-Pra, AIR 1954 SC 322; Pyarey Mohan v. State, AIR 1956 All 358; Prakash Chand Jain v. State, 1968 Cr LJ 391(All) . 62 K.M. Narayana Swami v. Kerala State, AIR 1957 Ker 134(DB) ; Pappa Kamal Khan v. Emperor, AIR 1935 Bom 230; State v. Minaketan Patnaik, AIR 1952 Ori 267; Shiv Bahadur Singh v. State of Yindh Prad., AIR 1954 SC 322; King v. Singh Rajasthan, AIR 1951 Ori 297(DB) . 63 Ramanlal Mohanlal Pandya v. State of Bombay, AIR 1960 SC 961. 64 Raghbir Singh v. State of Punjab, AIR 1976 SC 91. 65 Hazarilal v. State (Delh Admn.), AIR 1980 SC 873; Manilal Harchand Mehta v. State, ILR 1967 Guj 386. 66 Raghbir Singh v. State of Punjab, AIR 1976 SC 91. 67 State of U.P. v. G.K. Ghosh (Dr.), AIR 1984 SC 1453. 68 State of Y.P. v. Shiva Bahadur Singh, AIR 1951 VP 17. 69 Ramanarayan Patnaik v. State, (1989) Cr LJ 172(Ori) . 70 In re : Yenkatarama Iyer, AIR 1957 AP 441. 71 In re : R.G. Jacob, AIR 1961 Mad 482; Ramjanam Singh v. Bihar State, AIR 1956 SC 643. 72 M.P. Agarwal v. State of Bihar, (1973) Cr LJ 1582(Pat) .

5. PARTISAN WITNESS In the case of evidence of an accomplice no conviction can be based on his evidence unless it is corroborated in material particulars, but as regards the evidence of a partisan witness it is open to a Court to convict an accused person solely on the basis of that evidence if it is satisfied that the evidence is reliable. 73 But it may, in appropriate cases, look for corroboration. 74 A testimony cannot be rejected only on the ground that the witness was interested and inimical. 75 An interested witness is not like an approver, only more precaution is necessary 76 . A son of the deceased cannot be disbelieved 77 . The Supreme Court has held that in a case of mid-night murder, home people are natural witnesses.

78

The independence and impartiality of the judiciary requires that Magistrates whose normal function is judicial should not be relegated to this position of partisan witnesses and required to depose to matter transacted by them in their official capacity unregulated by any statutory rules of procedure or conduct whatever--employing of Magistrates as trap witnesses depreciated. 79

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Whether a witness is partisan witness or not would depend upon the circumstances of each case.

80

73 Bhanuprasad Hari Prasad Dave v. State of Gujarat, AIR 1968 SC 1323; E.G. Barsay v. State of Bombay, 1961 SC 1792; Shiv Bahadur Singh v. State of Yindhya Pradesh, AIR 1954 SC 322; Ramachand Tolaram v. State, AIR 1956 Bom. 287; Dalpat Singh v. State, AIR 1969 SC 17. 74 Bhanu Prasad v. State of Gujarat, (1968) 71 Bom LR 43 SC : AIR 1968 SC 1323; State of Bihar v. Basawan Singh, AIR 1958 SC 500. 75 Babu v. State of U.P., AIR 1980 SC 443; See further Ram Ashrit v. State of Bihar, AIR 1981 SC 942 which explains the situation where all witnesses are interested State of U.P. v. Manohar Lal, AIR 1981 SC 2073. For difference between interested and related witness see State of Rajasthan v. Kalki, AIR 1981 SC 1390. 76 State of U.P. v. Ballabh Das, AIR 1985 SC 1384. 77 Natthu v. U.P., AIR 1977 SC 2096; Guli Chand v. Rajasthan, AIR 1974 SC 775. 78 State of U.P. v. Gajun Singh, AIR 1980 SC 2128. 79 State of Bihar v. Basawan Singh, AIR 1958 SC 500; M.M. Gandhi v. State of Mysore, AIR 1960 Mys 111; State of Bihar v. Basawan Singh, AIR 1958 SC 500 : 1958 All WR NC 47; Shiv Bahadur Singh v. State of Yindhya Pradesh, AIR 1954 SC 322; Ramkrishan v. Delhi State, AIR 1956 SC 476. 80 1956 Cr LJ 275.

6. TRAP WITNESS Though trap witnesses are interested witnesses, as a matter of law, their evidence cannot be rejected for want of corroboration. 81 In the following cases it was held that corroboration by independent witnesses is required to support the evidence of trap witnesses. 82 It is not safe to rely upon the evidence of a trap witness without corroboration. However it is not necessary to have corroboration of all the circumstances of every detail of the crime. It will be sufficient if there is corroboration as to the material circumstances of the crime and of the identity of the accused in relation to the crime. 83 The Supreme Court has however, cautioned against a harsh approach which would make things impossible of proof. 84 Though it is neither illegal nor imprudent to convict the accused on the sole testimony of the partisan witness, it is advisable to look for independent corroboration though the Court has discretion in proper cases to dispense with a corrborating witness. 85 As held in Samprakash v. State 86 , if an honest and respectable man is to be treated as a partisan witness, it may impair confidence in the judicial system. Therefore, the Court has a duty to bestow care and view the evidence in the light of circumstances, probabilities and intrinsic credibility of the witness before looking for corroboration. 87 The Supreme Court held that every panch witness who helps in trapping the accused need not necessarily be regarded as a partisan witness. 88 Where, in a trap case, the judge magnified every minor detail or omission to falsify or throw even a shadow of doubt on the prosecution evidence then, it would be the very antithesis of a correct judicial approach to the evidence of witnesses in a trap case. 89 Police officials cannot be discredited in a trap case merely because they are police officials nor can other witnesses be rejected because on some other occasion they have been witnesses for the prosecution in the past. The court has to view the evidence in the light of probabilities and the intrinsic credibility of those who testify. 90 The demanding degree of proof traditionally required in a criminal case and the devaluation suffered by a witness who is naturally involved in the fruits of his investigative efforts suggest the legitimate search for corroboration from an independent source, human or circumstantial, to make judicial certitude doubly sure. 91 It is true that whenever a trap is successful, the version of the prosecution gains credence but the circumstances such as the accused officers coming into contract with the tainted notes in the process of pushing the same from table or thwarting the attempts of the complaints to thrust the

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amount into the hands or pocket need to be taken into account and mechanical acceptance of trap was held to be prone to result in injustice. 92 Where no temptation nor bribe money was offered by the police when the trap was arranged and the Executive Magistrate merely sought to do his public duty of intercepting a crime which was otherwise in the process of fulfilment, the veracity of his testimony cannot be discredited. 1 A distinction has to be drawn between an accomplice and a decoy-witness, the former being a person who joins another with the intention of aiding the commission of an offence and the latter who is instrumental in provoking the commission of the offence with the object of discovering the offence and detecting the offender. 2 Evidence of a decoy witness supported by another trap witness about the sale of spurious parts of a cycle by accused is sufficient to sustain conviction. 3 If a spy or informer in exuberance of enthusiasm act ually instigates another to commit a crime, even if it be for detection of the offence, or to get his credit of having him arrested, he is an abettor under the penal law and his position cannot be anything than that of an accomplice. 4 Evidence of a person giving information to police for trapping the accused would not be tainted but it would be interested evidence which would require corroboration before acceptance as in the case of accomplice evidence. 5

The Court can act upon uncorroborated testimony of trap witness if it is satisfied from facts and circumstances that the witness is witness of truth. 6 Though the trap witness is only a petty clerk his evidence cannot be rejected as wholly unreliable. 7 A Panch witness cannot be taken to be a trap witness as he is not interested in the success of the raid, and his evidence can be accepted without corroboration. 8 In Kamalabai Jethamal v. State of Maharashtra , 9 the Apex Court observed that youngmen and students should not be used as trap witnesses for detection of the offences. Instead the police agents be used for this purpose. (The instant case involved immoral trafficking in women). The testimony of the trap witness which was duly corroborated by the evidence of the complainant and the Panch witness cannot be discarded merely because he can be termed as a partisan witness. 10

81 Dalpat Singh v. State of Rajasthan, AIR 1969 SC 262; Tarsemlal Shanti Ram v. State, AIR 1960 Punj 72(DB) ; State v. Pundalik, AIR 1959 Bom 543; Ganadhesh v. State, AIR 1968 Goa 63; Khembu Ram v. State, 1972 Cr LJ 381(HP) ; Balaram Singh v. State of Orissa, 1984 Cr LJ 21(NOC) (Ori) ; T. Narayan Rao v. Republic of India, 1977 Cr LJ 1586(Ori) ; Iswar Devi Malik v. Union of India, AIR 1969 Delhi 183; Srichand v. Dupendra Chandra, (1967) 19 Assam 521. 82 Prakash Chand Jain v. State, 1968 Cr LJ 391(All) ; Khalilur Rahman v. Nabi Hussain, AIR 1967 Assam 55; Khalilur Rahiman v. Nabi Hussain, 1967 Cr LJ 1138; Kesho Parshad v. State, AIR 1967 Delhi 51; Ganadesh v. State, 1968 Cr LJ 925 : AIR 1968 Goa 83; Cherian Lukose v. State of Kerala, 1968 Cr LJ 168 : AIR 1968 Kel. 60; Mehar Chand v. State of Rajasthan, (1969) 19 Raj 641. 83 Major E.G. Barsay v. State of Bombay, AIR 1961 SC 1762; Raghubir Singh v. Haryana, AIR 1974 SC 1516; Maharaj Singh v. State of Rajasthan, AIR 1981 SC 936; Jadunath Khatua v. State, 1982 Cr LJ 954(Ori) . 84 State of Maharashtra v. Narsingrao, AIR 1984 SC 63; R.P. Arora v. State of Punjab, AIR 1973 SC 498; Hiralal v. State of Haryana, AIR 1971 SC 356. 85 Bhanuprasad v. State of Gujarat, AIR 1968 SC 1223; State of Bihar v. Basawan Singh, AIR 1958 SC 500; Dalpat Singh v. State, AIR 1969 SC 17; R.P. Arora v. State, AIR 1973 SC 498; Ramchand Tolaram v. State, AIR 1956 Bom 287. 86 AIR 1974 SC 989. 87 Gain Singh v. State of Punjab, AIR 1974 SC 1024. 88 Ramratan v. State of Rajasthan, AIR 1962 SC 424. 89 State of Maharashtra v. Narsingrao, AIR 1984 SC 63. 90 Gian Singh v. State of Punjab, AIR 1974 SC 1024. 91 Som Prakash v. State of Delhi, AIR 1974 SC 989.

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92 K. Narasimachary v. State, Inspector of Police, ACB, 2003 CrLJ 3315, 3318 (para 15) (AP) : 2003 (1) Andh LD (Cri) 730 : 2003 (4) All CrLR 237 : 2003 (3) Cur CrR 482. 1 Raghubir Singh v. State of Haryana, AIR 1974 SC 1516. 2 State v. Bashamber Dayal, Naib Tehsildar of Bihar, AIR 1953 Pepsu 82(DB) ; Ambalal Motibhai Patel v. State, AIR 1961 Guj 1(DB) ; In re : Ambujam Ammal, AIR 1954 Mad 326; Basheeruddin Ahmed v. Govt. of Mysore, AIR 1952 Mys 42; K.H. Bhattacharjee v. Emperor, AIR 1944 Cal 374; Kesho Parshad v. State, AIR 1967 Del 51; T. Narayan Rao v. Republic of India, 1977 Cr LJ 1586(Ori) . 3 Bahal Singh v. State, AIR 1960 Punj 641; Laurie E. Jacobs v. Union of India, AIR 1958 All 481(DB) . 4 In re : M Ranga Rajulu Naidu, AIR 1958 Mad 368; State v. Minaketan Patnaik, AIR 1952 Ori 267(DB) ; Cherian Lukose v. State of Kerala, AIR 1968 Ker 60. 5 Ram Chand Tolaram Khatri v. State, AIR 1956 Bom 287; Mahabir Parshad v. State, AIR 1951 Punj 424. 6 Jadunath Khatua v. State, 1982 Cr LJ 954(Ori) . 7 Kishan Chand Mangal v. State of Rajasthan, AIR 1982 SC 1511. 8 State of Gujarat v. Mangabhai Jethabhai Yaghela, 1982 Cr LJ 1317(Guj) . 9 AIR 1962 SC 1189, 1192 (para 4). 10 Gatorbhai Bhikhabhai Patel v. State of Gujarat, 2007 CrLJ 1539, 1548-48 (para 11) (Guj).

7. ACCOMPLICE A COMPETENT WITNESS An accomplice is a competent witness against an accused person and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. But whether it should be accepted is a different matter. Unless the case is a very exceptional one, an accomplice's evidence should not be accepted as being sufficient. 11 An accomplice witness as well as an ordinary witness are competent to testify, but the evidence of an accomplice, though admissible, remains suspect evidence because of the tainted source from which it comes. 12 The competency of an accomplice is not destroyed because he could have been tried jointly with the accused but was not and was instead made to give evidence in the case. 13 Where a driver of a lorry intentionally transports food grains from a village in Orissa to a village in Madras in contravention of the Orissa Food Grains Control Order 1947, underinstructions of the petitioner, the driver is equally guilty of the offence. He is competent to depose as an accomplice witness and the mere fact that he was convicted for that offence does not any way detract from his competence. 14 The fact that this accomplice is a man of questionable character is not by itself sufficient to reject his evidence. 15 The court may call in aid the statement of an accomplice witness and use it to lend assurance to the other evidence and thus fortify itself into believing what without the aid of the statement it would not be prepared to accept. 16 Where the evidence of the two approvers/accomplices was found to be consistent and corroborative with each other and their evidence coupled with the confession of the accused clearly established a case under Section 201 of the IPC , the conviction of the accused on such evidence was held to be proper. 17 11 Rajgopal, In re : ILR (1944) Mad 308(FB) . Uncorroborated testimony can't be accepted, Binod Kumar Pandit v. State of Jharkhand through the CBI, 2009 CrLJ 111(NOC) (Jhar) : 2008 (3) AIR Jhar R 383. 12 Ibrahim Husen v. State, AIR 1969 Goa 68; Sarwan Singh Rattan Singh v. State of Punjab, AIR 1957 SC 637; Bhiva v. State of Maharashtra, AIR 1963 SC 599; Ahmed Kunju v. State, ILR 1971 (2) Ker 30; Sheshanna Bhumanna v. State of Maharashtra, AIR 1970 SC 1330; Kilimanni Abu v. State of Kerala, (1965) 2 Cr LJ 557(Ker) ; Rex v. Baskerville, (1916) 2 KB 658; Dama Alias Damodar jena v. State, ILR 1969 Cut 265; Maghar Singh v. State of Punjab, AIR 1975 SC 1320; Purnananda Das Gupta v. Emperor, 1939 Cal 65(FB) ; State of Rajasthan v. Chhuttanlal, 1970 Crl LJ 1206(Raj) ; Sewa Ram v. Union of India, 1983 Crl LJ 1788(J&K) . 13 Laxmipat Choraria v. State of Maharashtra, AIR 1968 SC 938.

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14 Jaganadhan v. State of Orissa, AIR 1952 Ori 164. 15 Md. Yunus v. State of Bihar, 1977 Cr LJ 1243(DB) ; Rama Shankar v. Rikhab Kumar, AIR 1952 All 428 : 1952 Cr LJ 747(All) . 16 State v. Murli, AIR 1957 All 53(DB) ; Kashmira Singh v. State of Madhya Pradesh, AIR 1952 SC 159. 17 Mitra Prasad Rai v. State of Sikkim, 2004 CrLJ 3294, 3297 (para 10) (Sikk) : 2004 (3) Crimes 444.

8. ACCOMPLICE--CORROBORATION The reasons why accomplice evidence is held to be untrustworthy and to require corroboration are that from the very nature of his evidence: 35)   he is a person of low character who has participated in a crime and is therefore likely to have no regard to the sanctity of his oath; 33)   he is interested in falsely destroying the facts in order to shift the guilt from himself; and 17)   that he has the inducement of either a promised or implied pardon for his own part in the crime, and is therefore likely to be biased in favour of the prosecution. 18 The Supreme Court held that the accomplice evidence cannot be accepted without corroboration.

19

The fact that the accomplice is a man of questionable character is not by itself sufficient to reject his evidence. 20 The degree of suspicion which will attach to the evidence of an accomplice varies according to the extent and nature of his complicity. 21 The Supreme Court observed: "It would be impossible, indeed it would be dangerous, to formulate the kind of evidence which should or would be regarded as corroboration. Its nature and extent must necessarily vary with the circumstances of each case and also according to the particular circumstances of the offence charged, but to this extent the rules are clear, i.e. it is not necessary that there should be independent confirmation of every material circumstance in the sense that independent evidence in the case, apart from the testimony of the complainant or the accomplice should in itself be sufficient to sustain conviction. All that is required is that there must be some additional evidence rendering it probable that the story of the accomplice is true and that it is reasonably safe to act upon it." 22 The independent evidence must not only make it safe to believe that the crime was committed but must in some way reasonably connect or tend to connect the accused with it by confirmation in some material particulars the testimony of the accomplice or complainant that he committed the crime. 23 The corroboration must come from independent sources and thus ordinarily the testimony of one accomplice would not be sufficient to corroborate that of another. 24 The corroboration need not be direct evidence that the accused committed the crime. It is sufficient if it is merely circumstantial evidence of his connection with the crime. 25 The corroboration need not be of a kind which proves the offence against the accused. It is sufficient if it connects the accused with the crime. 26 The testimony of an accomplice cannot be said to have been corroborated by the evidence of a witness who is false and who contradicts other reliable evidence. 27 A person became approver after 20 months. Copies of the earlier statements to the police were not supplied to the defence. These facts weakened his evidence 28 One tainted evidence cannot be used to corroborate another tainted evidence 29 . Evidence of one accomplice cannot be corroborated with that of another. 30 The Supreme Court in Md. Hussain Umar v. Dalip Singhji 31 reiterated the above principle differing from the view taken by Justice Bose in Kashmira Singh v. State 32 that the evidence of an accomplice can be used to corroborate another in exceptional circumstances. Independent corroboration is required because one tainted witness cannot corroborate another tainted witness. 33 Where several accomplices simultaneously and without previous concert give consistent account of the crime implicating the accused, the court may accept the several statements as corroborating each other. 34

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Evidence that the accused were, at the time the crime was committed, near the scene of the crime and so placed as to justify the inference that they were accompanying persons whose complicity in the crime has been satisfactorily proved by independent evidence, is sufficient corroboration of the testimony of an accomplice. 35 Where a person is only an accomplice by implication or in a secondary sense, his evidence does not require the same amount of corroboration as that of the person who is an act ual participator with the principal offender. 36 The rule that evidence of an accomplice should receive corroboration in material particulars applies to the evidence of an accused who is convicted and sentenced on his own plea and who then appears as a witness against his co-accused. 37 Panchas accompanying the police for raid are independent witnesses and their evidence is good evidence and requires no corroboration before acceptance. 38 The fact that the accused who was charged with dacoity at the house of a person who was a money lender, was indebted to him, is no corroboration of the evidence of the accused accomplice. 39 It is only when the court is not able to say whether the accomplice is wholly reliable, that the court should demand corroboration direct or circumstantial in material particulars in respect of the part played by the accused. 40 However, in a given case, the Court may presume that an accomplice is unworthy of credit unless corroborated in material particulars. It will depend on the facts and the circumstances of each case whether the evidence of an accomplice is acceptable without corroboration or not. 41 Conviction of an caused under Section 201,I.P.C. based on the uncorroborated testimony of accomplices cannot be sustained when it appears that these accomplices have not given any clear evidence connecting the accused with the crime.42 One has to take into consideration the nature and extent of the participation in the crime. If the court finds that the act is such as to render it probable that accessory himself would have been charged for the offence then this evidence is of absolutely no value. 43 Corroboration of accomplices evidence by confession of accused believed to be voluntary and true is said to be good corroboration. 44 Testimony of accomplice, if corroborated in material particulars, can form basis of conviction. 45 Law is not that the accomplice evidence can under no circumstances be relied upon. There must be additional evidence rendering it plausible. 46 Where a co-accused was convicted on his pleading guilty and his evidence corroborated from the evidence of other co-accused, it was held that evidence of such co-accused could be act ed upon. 47 Where the evidence of an accomplice is not totally unsupported by re-assuring circumstances, the accused could be convicted on the basis of such evidence. 48 Where the accused failed to disclose incident of ghastly crime to any authority or person interested in detection and his statement was uncorroborated, it cannot form the basis of conviction. 49 The statement of the accomplice made before the Magistrate before pardon was tendered to him, can be used as corroborative material. It being his former statement, the Court attached no great weight in the instant case. 50 This section renders admissible uncorroborated testimony of an accomplice against an accused person; but this section has be read alongwith Section 114(b) which empowers the Court to presume the existence of certain facts and illustration (b) elucidates what the Court may presume and makes it clear by means of examples as to what facts the Court shall have regard in considering whether or not the maxims illustrated apply to a given case. It says, in express terms, that an accomplice is unworthy of credit unless he is corroborated in material particulars which means that an accomplice does not generally deserve to be believed unless corroborated in material particulars though it is rule of prudence and can be dispensed with when the Court thinks it safe. 51 Where the evidence of the investigating officer and an artist provided material to corroborate the evidence of the accomplice which clearly met the requirement of Section 114(b), the accused was held to be liable to be convicted. 52 18 In re : Venkatarama Iyer, AIR 1957 AP 441. 19 Kanan v. State of Kerala, AIR 1979 SC 1127. See also Pandit Shree Krishna Selot v. Ramacharan Pujari, (1969) 3 SCC 548; Santosh Kumar v. State of H.P., 2008 CrLJ 1988, 1990-91 (para 11) (HP).

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20 Md. Yunus v. State of Bihar, 1977 Cr LJ 1243(Pat) (DB). 21 In re : Amir Sultan, AIR 1957 Mad 796; Sriniwas Mall v. Emperor, AIR 1947 PC 135; Chatru v. State, AIR 1953 Bilaspur 3; Ranjha v. State, AIR 1951 HP 75; Rattan Dhanuk v. Emperor, AIR 1928 PC 630; Sriniwas Mall v. Emperor, AIR 1947 PC 135. 22 Rameshwar Kalyan Singh v. State of Rajasthan, AIR 1952 SC 54; Major E.G. Barsay v. State of Bombay, AIR 1961 SC 1762; State of Bihar v. Basawan Singh, AIR 1958 SC 500; Tribhuvan Nath v. State of Maharastra, AIR 1973 SC 450; Kurvichiyam Kunhaman v. State of Kerala, 1974 Ker LT 328; Mukhtiar Kaur v. State of Punjab, AIR 1980 SC 1871; Nathuram Godse v. Rex, ILR 1956 Punj 499; Autar Singh v. State, 1960 Punj 364 relying on; Dalip Singh v. Emperor, AIR 1933 Lah 294; Kashmira Singh v. State of Madhya Pradesh, AIR 1952 SC 159; Harilal Gordhan v. Emperor, AIR 1937 Bom 385; Hormazdyar Ardeshir Iran v. Emperor, AIR 1948 Bom 250; Harak Chand v. State, AIR 1954 MB 145; Ambalal Motilal Patel v. State, AIR 1961 Guj 1(DB) ; Rao Shiv Bahadur Singh v. State of Vidh Prad, AIR 1954 SC 322; Public Prosecutor v. A. Thomas, AIR 1959 Mad 166; Kunti Mohammed v. State, AIR 1959 Ker. 88(DB) ; Basheeruddin Ahmed v. Govt. of Mysore, AIR 1952 Mys. 42(DB) ; P. Venkata Rao v. King, AIR 1951 Ori. 281; State v. Bai Radha, ILR 1967 Guj 1046; In re : Gundla Narayana, AIR 1959 AP 387. 23 Rameshwar Kalyan Singh v. State of Rajasthan, AIR 1952 SC 54; Nandalal More v. State, 1965 (1) Cr LJ 393 relying on R v. Baskerville, 1916 (2) KB 658; Bhuboni Sahu v. King, AIR 1949 PC 257; Sarvan Singh v. State of Punjab, AIR 1957 SC 637; Major E.G. Barsay v. State of Bombay, AIR 1961 SC 1762; Bhiva v. State of Maharastra, AIR 1963 SC 599; State of Kerala v. Joseph, 1963 (2) Cr LJ 454(Ker) ; Autar Singh v. State, AIR 1960 Punj 364; relying on Dalip Singh v. Emperor, AIR 1933 Lah 294 (supra ); Kashmira Singh v. State of M.P., AIR 1952 SC 159 (supra ); Bhima Shah v. State, AIR 1956 Ori. 177; Vajeram Raghuram v. State of Kutch, AIR 1954 Kut. 20; Ramchand v. State, AIR 1952 HP 57; relying on Gorakhnath v. Emperor, AIR 1935 All 86; R v. Baskarville, (1916) 2 KB 658 (supra); Chacko Thomas v. State, AIR 1952 TC 155; In re : Padmaraja Setty, AIR 1951 Mad 746; C. Chellappan v. State of Kerala, AIR 1979 SC 1761; Asst. Collector of Customs v. Shantilal Laxmi Chand Modi, (1971) 2 Delhi 584; State of Bihar v. Basawan Singh, AIR 1958 SC 500; Rabidas v. State, 1976 Cr LJ 2004; Chandra Kant v. State of Maharastra, 1978 Cr LJ 431(Bom) ; Kudasu Rajarina v. State of A.P., 2005 CrLJ 190, 194 (para 22) (AP). 24 Rameshwar Kalyan Singh v. State, AIR 1952 SC 54; Shamsher Bahadur Saxena v. State of Bihar, AIR 1956 Pat 404; M.C. Taneja v. State of Rajasthan, 1970 Crl LJ 945. 25 Rameshwar Kalyan Singh v. State, AIR 1952 SC 54; K.K. Jadhav v. State of Gujarat, AIR 1966 SC 821 following Sathyanarayana v. State of Hyderabad, AIR 1956 SC 379; State of Bihar v. Basawan Singh, AIR 1958 SC 500 relying on R v. Baskerville, 1916 (2) KB 658 (supra ); Mohamad Hussain Umar v. Dalip Singhji, AIR 1970 SC 45 relying on Bhiva Doulu Patil v. State of Maharastra, AIR 1963 SC 599; Ramanlal v. State of Bombay, AIR 1960 SC 961; Major E.G. Barsay v. State of Bombay, AIR 1961 SC 1762; Kuruchiyam Kunhaman v. State of Kerala, 1974 Ker LT 328; Sheikh Zakir v. State of Bihar, AIR 1983 SC 911; Shamsher Bahadur v. State of Bihar, AIR 1956 Pat 404; Nathuram Godse v. Rex, ILR 1956 Punj 499; In re : Gundla Narayana, AIR 1959 AP 387; Bhima Shaw v. State, 1956 Ori 177; Chacko Thomas v. State, AIR 1952 JC 155; Rehman v. State, 1981 Cr LJ 125(NOC) ; In re : Boddu Sanyasi Patrudu, AIR 1957 AP 482; Bhuboni Sahu v. King, AIR 1949 PC 257; State v. Saradara, 1974 Cr LJ 43(Raj) ; Mohan v. State, 1996 Cr LJ 48 (para 12) (Mad), relying on Chandran v. State of Rajasthan, 1988 SC 599 at p. 600. 26 S. Swaminathan v. State of Madras, AIR 1957 SC 340. 27 State (Delhi Admn.) v. V.C. Shukla, AIR 1980 SC 1382, 1398. 28 Lalchand v. Haryana, AIR 1984 P&H 226. 29 C. Chellappan v. State of Kerala, 1979 Cr LJ 1335(SC) : AIR 1979 SC 1761; Baldeo Singh v. State of Punjab, AIR 1979 SC 1280 : 1979 Cr LJ 871(SC) . 30 Dagdu v. State of Maharashtra, AIR 1977 SC 1579; Kunj Behari v. State, 1951 Pat 84; T. Retnakaran v. State, AIR 1955 Trav. Co. 87(DB) ; Bhuboni Sahu v. King, AIR 1949 PC 257; Kunj Behari v. State, AIR 1951 Pat 84; L.S. Raju v. State of Mysore, AIR 1953 Bom 297(DB) ; Kashmira Singh v. State of M.P., AIR 1952 SC 159; Ramchand v. State, AIR 1952 HP 57; Gorakhnath v. Emperor, AIR 1935 All 86; Gurnam Singh v. State of Raj., 1979 Cr LJ 215(NOC) ; Emperor v. Mohiuddin, ILR 25 Mad 143; Empress v. Ram Charan, ILR 8 All 306. 31 AIR 1970 SC 45. 32 AIR 1952 SC 159. 33 C. Chellappan v. State of Kerala, AIR 1979 SC 1761. 34 Mohd. Hussain Umar v. Dalip Singhji, AIR 1970 SC 45; Haroom Haji Abdulla v. State of Maharastra, AIR 1968 SC 832; Bhuboni Sahu v. King, AIR 1949 PC 257; Harichand v. State, (1974) 2 Delhi 706. 35 Dhanapati De v. Emperor, (1944) 2 Cal 312 : AIR 1946 Cal 156.

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36 Kamala Prasad v. Sital Prasad, (1901) 28 Cal 339; Banu Singh v. Emperor, (1906) 33 Cal 1353. 37 Emperor v. Allisab, (1932) 34 Bom LR 1453. 38 Ramchand Tolaram Khatri v. State, 1956 Bom 287(DB) ; State of Gujarat v. Mangabhai Jetnabhai, 1982 Cr LJ 1317 DB. 39 In re : Boddu Sanyasi Patrudu, AIR 1957 AP 482. 40 Data Ram v. State of Rajasthan, 1977 Cr LJ 1428(Raj) . 41 M.O. Shamsudhin v. State of Kerala, (1995) 3 SCC 351 (para 21), relying on Rameshwar v. State of Rajasthan, AIR 1952 SC 54 : 1952 CrLJ 547. 42 Kanka Singh v. State, 1960 (26) Cut. LT 638; Rameshwar Kalyan Singh v. State of Rajasthan, AIR 1952 SC 54; State of Bihar v. Basawan Singh, AIR 1958 SC 500; Bhuboni Sahu v. King, AIR 1949 PC 257. 43 Abdul Munim Khan v. State of Hyderabad, AIR 1953 Hyd. 145. 44 Bhairon Lal v. State, AIR 1953 Raj 131(DB) . 45 Rampal Pithwa Rahidas v. State of Maharashtra, 1994 Cr LJ 2320 (para 9) (SC). See also Ramprasad v. State of Maharashtra, 1999 Cr LJ 2889 (para 19) (SC) : AIR 1999 SC 1969. Evidence of approver corroborated, can't be rejected merely because of some discrepancy, Balbir Singh v. State of Rajasthan, AIR 1997 SC 1704 : 1997 Cr LJ 1179. 46 Vasudevan v. State, 1993 Cr LJ 3151 (para 21) (Ker), following State of Bihar v. Basawan Singh, AIR 1958 SC 500 : 1958 Cr LJ 976. 47 Bhana Khalpa Bhai Patel v. Collector of Customs, AIR 1998 SC 1487. See also Narayan Chetanram Chaudhary v. State of Maharashtra, 2000 Cr LJ 4640 (paras 34, 35 and 38) (SC) : AIR 2000 SC 3352. 48 State of Tamil Nadu v. Suresh, AIR 1998 SC 1044 : 1998 Cr LJ 1416 (para 22) (SC), reversing Cri A Nos. 782-83 of 1989, decided on 8-2-1991 (Mad). 49 Shanker v. State of M.P., 1997 Cr LJ 3876(MP) . See also Jagannath Prasad v. State of U.P., 2000 Cr LJ 923 (para 12) (All); uncorroborated, infirm and exaggerated version of victims of rape, offence not established beyond reasonable doubt, Babulal v. The State of Madhya Pradesh, 1994 Cr LJ NOC 283(MP) . 50 Ramprasad v. State of Maharashtra, 1999 Cr LJ 2889 (para 25) (SC) : AIR 1999 SC 1969. 51 K. Hashim v. State of T.N., AIR 2005 SC 128 (para 26) : (2005) 1 SCC 237 : 2005 CrLJ 143; Francis Stanly v. Intelligence Officer, Narcotic Control Bureau, Thiruvananthapuram, AIR 2007 SC 794, 796 (para 10) : (2006) 13 SCC 210; Chonampara Chellappan v. State of Kerala, AIR 1979 SC 1761 (para 4) : 1979 CrLJ 1335; Piara Singh v. State of Punjab, AIR 1969 SC 961 (para 8) : (1969) 3 SCR 236; Suresh Chandra Bahri v. State of Bihar, AIR 1994 SC 2420 : 1994 AIR SCW 3420. 52 K. Hashim v. State of T.N., AIR 2005 SC 128 (para 37) : (2005) 1 SCC 237 : 2005 CrLJ 143, relied on in Sitaram Sao v. State of Jharkhand, (2007) 12 SCC 630, 639-40 (para 21) : AIR 2008 SC 391.

9. MURDER--ACCOMPLICE Conviction of the accused resting primarily on the testimony of the accomplice in a murder case is valid only if the testimony is reliable and is corroborated in material particulars. 53 In a murder case where except exculpatory statement of the accomplice, which was full of infirmities and was uncorroborated, there was no evidence on record to show that the deceased died an unnatural death and all the close relatives of the deceased including her brother were present at the time of cremation but no objection was raised as to the cremation of the dead body of the deceased even after noticing the injuries on her body, the conviction of the accused solely on the basis of the confessional statement of the accomplice was held to be improper. 54 53 Santan Ghorai v. State of W.B., 1969 SCD 874; State (Del. Admn.) v. V.C. Shukla, AIR 1980 SC 1382; Ravinder Singh v. State of Haryana, AIR 1975 SC 856; Gopal Krishna v. State, AIR 1964 All 481; State of Ram Autar Choudhary, AIR 1955 All 138; Raja Ram v. State, 1966 All 192(FB) ; State v. Bassappa Challappa Bekwad, AIR 1956 Bom 341;

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Rangaswami Chettiar v. State, AIR 1953 Trav. Co. 280; State v. Youssuf Dar, 1973 Cr LJ 955(J&K) ; Prananath Patnaik v. Banamali Patnaik, AIR 1958 Ori. 228. 54 Banwarilal v. State of H.P., 2004 CrLJ 1067, 1073 (paras 27, 28, 29 and 35 to 37) (HP) : 2003 (1) Sim LC 408 : 2003 (3) Crimes 207 : 2003 (3) Chandi LR (Civ & Cri) 618. The Court relied on Joga Gola v. State of Gujarat, 1981 (Supp) SCC 66 : 1982 CrLJ 1579.

10. ACCOMPLICE RELATED TO ACCUSED Where an accomplice is closely related to the accused, it is conceivable that he should try to implicate his accused falsely. In such circumstances, the maxim contained in illus (b), S-114 does not apply and the conviction of the accused would, as laid down in Section 133, not be illegal merely because it proceeded upon his uncorroborated testimony. 55 55 Ranja v. State, AIR 1951 HP 75.

11. ACCOMPLICE--APPROVER When an accomplice turns as a witness on accepting the pardon granted by the Court under Section 306,Cr. P.C., to speak to the facts relating to the offence, he is called an approver. The omission in the police statement, by itself would not necessarily render evidence of an approver unreliable. In considering whether an approver's evidence passed the test of reliability, the Court would have to consider whether, taken as a whole and in the light of the facts of the case, it was a credible version or not. 56 Firstly, the Court has to satisfy itself that the statement of the approver is credible in itself and there is evidence other than the statement of the approver that the approver himself had taken part in the crime. Secondly, the Court should seek corroboration of the approver's evidence with respect to the part of other accused persons in the crime, and this evidence has to be of such a nature as to connect other accused with the crime. 57 The corroboration need not consist of evidence which, standing alone, would be sufficient to justify the conviction of the accused. If that were the law, it would be unnecessary to examine an approver. All that seems to be required is that the corroboration should be sufficient to afford some sort of independent evidence to show that the approver is speaking the truth with regard to the accused person whom he seeks to implicate. 58 Every detail of the story of the accomplice need not be confirmed by independent evidence although some additional independent evidence must be looked for to see whether the approver is speaking the truth and there must be some evidence, direct or circumstantial, which connects the co-accused with the crime independently of the accomplice. 59 Approver's evidence is looked upon with great suspicion, but, if it is found to be trustworthy, it can be decisive in securing conviction. 60 The evidence of the approver is always viewed with suspicion especially when it is seriously suspected that he is suppressing some material facts. 61 Where the statement of an approver witness given before Chief-Judicial Magistrate and the statement given by him before the Court were the same version and there was no contradiction or omission in material particulars in his both the statements, the testimony of such a witness could not be rejected outrightly on the ground that the same was unreliable or untrustworthy. 62 Non-acceptance of the approver's evidence in respect of one of the co-accused for want of independent corroboration does make her evidence infirm or create any doubt regarding her reliability as a witness. 63 A conviction based on uncorroborated evidence of a trustworthy approver is not illegal though as a matter of practice corroboration in material particulars by independent evidence is insisted upon. 64 Where the evidence of the approver was fully corroborated on material aspects from truthful independent sources and the same showed that he was acting on the tunes of the accused, his evidence was held to be credible. 65 It is well-settled that the appreciation of approver's evidence has to satisfy a double test. His evidence must show that he is a reliable witness. If this test is satisfied, the second test which still remains to be applied is that the approver's evidence must receive sufficient corroboration. 66 The evidence of the approver should be corroborated in material particulars

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connecting each of the accused with the crime. 67 It must be shown that the approver is a witness of truth, the evidence led to corroborate him in material particulars would be relevant for consideration. The court should bear this in mind in deciding whether the evidence of the approver should be act ed upon or not. 68 The nature of corroboration will necessarily vary according to the particular circumstances of the offence charged. It would be in high degree dangerous to attempt to formulate the kind of evidence which would be regarded as corroboration, except to say that corroboration evidence is evidence which shows or tends to show that the story of the accomplice that the crime has been committed by the accused is true. The corroboration need not be direct evidence that the accused committed the crime. It is sufficient if it is circumstantial evidence of his connection with the crime. 69 In a murder case, recovery of articles belonging to deceased from different accused and the deadbody from a particular place in pursuance of the statement of the approver, was held to be sufficient corroboration of the approver's statement connecting different accused with the crime. 70 When there is circumstantial evidence proved against accused that he was guilty of murder then it constitutes substantial corroboration of approver's statement in material particulars. 71 Courts are naturally reluctant to act on the tainted evidence of an approver unless it is corroborated in material particulars by other independent evidence. But it would not be right to expect that such independent corroboration should cover the whole of the prosecution story or even all the material particulars. If such a view is adopted it would render the evidence of the accomplice wholly superfluous. On the other hand it would not be safe to act upon such evidence merely because it is corroborated in minor particulars or incidental details, because in such a case corroboration does not afford necessary assurance that the main story disclosed by the approver can be reasonably and safely accepted as true. 72 Courts should be cautious to the uncorroborated testimony of approver. 73 A conviction ought not to be based on the testimony of the approver unless it is corroborated in material details not only with regard to the general story narrated by him, but also with regard to the corpus delicti and the identity of the accused. It is so even though his testimony does not suffer from inherent defects or improbabilities. It follows that the resiled statement of an accomplice naturally must be subjected to greater scrutiny. 74 It is a general tendency on the part of approvers to minimise their own role in the offence but that cannot render the prosecution story unbelievable, when there is independent corroboration to his statement of the approver. 75 An approver's evidence cannot be discarded totally merely because it was found unbelievable in respect of the part played by one of the accused who was a acquitted. 76 The evidence of an approver has to fulfil two tests for its acceptance. (1) it must be natural and credible. Where this is prima facie lacking, there is really no question of further corroboration and the prosecution can only rely upon other pieces of evidence. (2) even if a court is inclined to accept the evidence as natural or convincing, it must be corroborated in material particulars with regard to the participation of the accused concerned. 77 Identification of one out of six of the accused in circumstances which make the identification questionable, is no corroboration of the evidence of the approver. 78 Where the approver's evidence is corroborated almost in every particular by medical evidence, it would be sufficient to convict the accused. 79 Certain clinching features disclosed by an approver pertaining directly to an accused, if reliable, by the touch stone of other independent credible evidence, would give the needed assurance for acceptance of his testimony on which a conviction may be based. 80 The fact that a co-accused became an approver after a lapse of 20 months from the date of occurrence and copies of his earlier statements to the police were not supplied to the defence, was held sufficient to lessen the value of his evidence. 81 Where it is proved that there was ill feeling between the father of the approver and the accused the evidence of the approver implicating the accused loses much of its value. Further, where he has been made approver only to obtain the evidence against that accused, it is not possible to attach any weight to such evidence. 82 The antecedents of the approver do not make his evidence either better or worse. His evidence can be accepted on its own merits with corroboration. 83

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It cannot be laid down as a matter of law that the evidence of witnesses who support the statement of an approver is not corroborative evidence merely because their evidence was known to the police before the approver was given pardon. 84 Approver does not cease to be a competent witness after withdrawal of his pardon. 85 That the approver had denied his complicity in the crimes during the earlier stages of investigation does not show that his evidence given by him in the court of session is false as prisoners make full and true disclosure of the whole of the circumstances within their knowledge relating to the offence under investigation only when they are assured of pardon. 86 When approver was convicted and sentenced and on appeal the conviction was set aside and the case remanded, and after remand pardon was tendered to him and he was made approver, it was held that no reliance could be placed on the statement of such an approver. 87 Unless, the approver's statement is found credible and his part in the crime corroborated by other evidence, no useful purpose will be served by seeking corroboration of other part of his evidence by reference to other evidence on record. 88 An approver is generally a deserter in the hope of reward of pardon. So unless he is wholly reliable corroboration will be necessary. 89 In absence of any corroboration by the independent evidence, on material particulars the evidence of the approver cannot form the sole basis for the conviction of the accused for an offence of murder. 90 It was observed by Supreme Court in Madan Mohan v. State of Punjab , 91 that even if the trial Court was in error in not permitting the omission in the statement made by the approver before the police to be brought on record, such an evidence at best could have been used for challenging the veracity of the approver's evidence and it was held that when there was enough evidence to corroborate the version of the approver, the Courts below could not be said to have committed any error on relying upon the approver's evidence to convict the appellant. 56 Madan Mohan v. State of Punjab, AIR 1970 SC 1006, 1007 (para 8) : (1970) 2 SCC 733 : 1970 CrLJ 898. 57 Saravanbhavan v. State of Madras, AIR 1966 Mad 1273; See also Lacchi Ram v. State of Punjab, AIR 1967 SC 792. 58 Bishnu Padu Chatterji v. Emperor, (1944) 2 Cal 327. 59 Rameshwar v. State of Rajasthan, AIR 1952 SC 54. 60 Jasbir Singh v. Vipin Kumar Jaggi, 2001 Cr LJ 3993 (para 19) (SC) : AIR 2001 SC 2734. 61 Renuka Bai v. State of Maharashtra, (2006) 7 SCC 442, 450-51 (para 31) : AIR 2006 SC 3056. 62 State of H.P. v. Surinder Mohan, 2003 CrLJ 4223, 4232 (para 44) (HP). 63 Ranadhir Basu v. State of W.B., 2000 Cr LJ 1417 (para 9) (SC) : AIR 2000 SC 908. 64 (1972) 1 Cut. LR (Cri) 346; Piara Singh v. State of Punjab, AIR 1969 SC 961; Haroom Haji Abdulla v. State of Maharastra, AIR 1968 SC 832; Krishna Biharilal v. State, 1956 MB 86(DB) ; Chandrakant v. State of Maharastra, 1978 Cr LJ 431(Bom) ; Debi v. State, AIR 1953 Raj 49. 65 Vinit v. State of Maharashtra, 1994 Cr LJ 1791(Bom) . 66 Piara Singh v. State of Punjab, AIR 1969 SC 961; Sarwan Singh v. State of Punjab, AIR 1957 SC 637; Sheshanna Bhumanna v. State of Maharastra, AIR 1970 SC 1330; Ram Deo v. State of Rajasthan, 1966 Cr LJ 240(DB) ; Major E.G. Barsay v. State of Bombay, AIR 1961 SC 1762; Mohinder Singh v. State, (1963) 2 Crl LJ 104(P&H) ; Sumer Singh v. State, (1962) 2 Cr LJ 672(MP) ; State of Bihar v. Srilal Kerjiwal, AIR 1960 Pat 459; State v. Teka, 1978 Cr LJ 241(NOC) ; In re : Mukhesh Ramachandra Reddy, AIR 1958 AP 165. 67 G.S. Bakshi v. State Delhi Admn., AIR 1979 SC 569; Jnanendra Nath Ghose v. State of West Bengal, AIR 1959 SC 1199; S. Swami-Rathnam v. State of Madras, AIR 1957 SC 340; Ram Deo v. State of Rajasthan, 1966 Cr LJ 240; Sarwansingh Rattan Singh v. State of Punjab, AIR 1957 SC 637; R. v. Baskerville, 1916 (2) KB 658; Balwant Kaur v. Union Territory of Chandigarh, AIR 1988 SC 139. 68 State of A.P. v. Ganeswara Rao, AIR 1963 SC 1850.

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69 Samunder Singh v. State, AIR 1965 Cal 598(DB) ; Sheo Nandan v. State, AIR 1964 All 139(DB) ; Sohan Singh Kesar Singh v. State, AIR 1964 Punj 130(DB) ; State of Bihar v. Srilal Kerjiwal, AIR 1960 Pat 459(DB) ; Rameshwar Kalyan Singh v. State of Rajasthan, AIR 1952 SC 54; Ram Singh v. Crown, 1951 Simla 178; Rabi Das v. State, 1976 Cr LJ 2004(DB) (Cri). 70 Nizamuddin v. State, AIR 1963 J&K 34 (D.B.). 71 Maghar Singh v. State of Punjab, AIR 1975 SC 1320. 72 Sheo Nandan v. State, AIR 1964 All 139; R.R. Chari v. State of U.P., 1962 (2) Cr LJ 510(SC) ; Sarwan Singh Rattan Singh v. State of Punjab, AIR 1957 SC 637; Jnanendra Nath Ghose v. State of W.B., AIR 1957 SC 1199; A.P. Kuttan Panicker v. State of Kerala, 1963 (1) Cr LJ 669(Ker) ; Nizam-ud-Din v. State, AIR 1963 J&K 34 (DB); Rameshwar Kalyan Singh v. State of Rajasthan, AIR 1952 SC 54; Y. Govindrajulu v. State of Mysore, AIR 1962 Mys. 275; State of Bihar v. Srilal Kerjiwal, AIR 1960 Pat 459(DB) . 73 S.C. Bahri v. State of Bihar, 1994 Cr LJ 3271 (para 45) : AIR 1994 SC 2420. 74 In re : Kasaboyina Muttiga, AIR 1958 AP 255(DB) . 75 (1975) 2 Cr LJ 285 (HP); Saravana Bhavan and Govinda Swamy v. State of Madras, AIR 1966 SC 1273. 76 1975 (2) Cr LJ 285 HP; Piare Singh v. State of Punjab, AIR 1969 SC 961; Emperor v. Rai Singh Narain Singh, AIR 1933 Lah. 871. 77 In re : Chinnasami, AIR 1960 Mad 462(DB) ; Sarwan Singh Rattan Singh v. State of Punjab, AIR 1957 SC 637; Rameshwar Kalyan Singh v. State of Rajasthan, AIR 1952 SC 54; R v. Baskerville, 1916 (2) KB 658; Ram Narain v. State of Rajasthan, AIR 1973 SC 1188; State v. Banwari, ILR 1959 (9) Raj 107; State of Bihar v. Basawan Singh, AIR 1958 SC 500; Rajanikanta Meheta v. State of Orissa, 1976 Cr LJ 1674(Ori) ; In re : B.K. Rajgopal, AIR 1944 Mad 117; Bhuboni Sahu v. King, AIR 1949 PC 257; Nafiz Ahmed v. State, 1989 Cr LJ 1296(Bom) . 78 Samunder Singh v. State, AIR 1953 Raj 182 DB; Uma Krishna v. State of Ajmer, AIR 1956 Ajmer 57. 79 Shankar Tukaram v. State, ILR 1979 Bom 300. See also Rukhmmini Bhagoji Pardhi v. State, ILR 1979 Bom 380. 80 Ravinder Singh v. State of Haryana, AIR 1975 SC 856; State v. Hetep Boro, 1972 Cr LJ 1074; Tulugu Soura v. State, 1973 Cr LJ 1426(Ori) ; Ram Deo v. State of Rajasthan, 1966 Cr LJ 240(Raj) ; Rangaswami v. State of Kerala, ILR 1958 Ker 420; In re : Gundla Narayana, 1959 AP 387(DB) ; Rameshwar Kalyan Singh v. State of Rajasthan, AIR 1952 SC 54; State of Orissa v. Bishnucharan Muduli, 1985 Cr LJ 1573(DB) ; Aran Datti v. State, AIR 1955 J&K 13 (DB); State of Orissa v. Nazrul Ali Sekh, 1985 Cr LJ 1311(Ori) ; Harihar Samal v. State of Orissa, 1982 Cr LJ 1156(Ori) ; Khagendra Gohan v. State, 1982 Cr LJ 487(Ori) ; Gurnam Singh v. State of Rajasthan, 1979 Cr LJ 215(NOC) ; State v. Teka, 1978 Cr LJ 241(NOC) (DB) ; Data Ram v. State of Rajasthan, 1977 Cr LJ 1428(Raj) ; Sumer Singh v. State of Haryana, 1977 Cr LJ 32(NOC) (Punj) ; Chandan v. State of Rajasthan, AIR 1988 SC 599; Ranjeet Singh v. State of Rajasthan, AIR 1988 SC 672; Ujit Ali v. State, 1988 Cr LJ 50(NOC) (Cal) ; Lachhi Ram v. State of Punjab, AIR 1967 SC 792. 81 Lal Chand v. State of Haryana, AIR 1984 SC 226; Bhiva Doulu Patil v. State of Maharastra, AIR 1963 SC 599. 82 Nathwa v. State, AIR 1951 All 452; In re : Mammadu, AIR 1951 Mad 737. 83 Saravana Bhavan and Govinda Swamy v. State of Madras, AIR 1966 SC 1273. 84 Kesar Singh v. State, AIR 1954 Punj 286 DB. 85 State v. Bhoora, AIR 1961 Raj 274; Dama alias Damodar Jena v. State, ILR 1969 Cut 265. 86 Kesar Singh v. State, AIR 1954 Punj 286. 87 Angom Kala Singh v. Manipur State, AIR 1953 Mani 2. 88 Magan Hema v. State, ILR (1972) Guj 910; Saravana Bhavan and Govinda Swamy v. State of Mysore, AIR 1966 SC 1273; Sarwan Singh Rattan Singh v. State of Punj., AIR 1957 SC 637. 89 Data Ram v. State of Rajasthan, 1977 Cr LJ 1428. 90 State of H.P. v. Surinder Mohan, 2003 CrLJ 4223, 4237 (para 94) (HP). 91 AIR 1970 SC 1006, 1010 (para 23) : (1970) 2 SCC 733 : 1970 CrLJ 898.

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12. CONFESSION The difference between evidence of accomplice and confession of an accused is that in the case of a person confessing who has resiled from his statement, general corroboration is sufficient, while an ccomplice's evidence should be corroborated in material particulars. 1 A co-accused who confessed is naturally an accomplice and the danger of using the testimony of one accomplice to corroborate another has repeatedly been pointed out. The danger is no way lessened when the evidence is not on oath and cannot be tested by cross-examination. 2 A confession intended to be used against a coaccused stands on a lower level than accomplice evidence because the latter is atleast tested by cross-examination whilst the former is not. The confession of co-accused are not evidence but if there is other evidence on which a conviction can be based; they can be referred to as lending some assurance to the verdict. 3 An extra judicial confession made by a person, who was subsequently made an approver, cannot be relied upon. The approver is no better than an accomplice and his testimony therefore, would need independent corroboration before it can be acted upon. 4 Corroboration of an accomplice's statement in the court must be found elsewhere and not in his confession, for an accomplice like an approver does not corroborate himself. But his confession can certainly be referred to in order to show that his story related by him in the court has in its material particulars been throughout consistent. 5 The confession of a co-accused by itself is not sufficient to hold the other accused guilty as it is a fragile and feeble type of evidence and can only be used to support other evidence. 6 Where there is a single retracted confession corroborating other accomplice evidence, the caution must necessarily be still greater and the probative value smaller. 7 Non-disclosure of the name of one accused person when questioned by police before he offered to confess, is not of much consequence when in the confessional statement he implicated himself and other accused persons. 8 Where a petition for quashing of FIR was moved on the ground that the involvement of the accused in the offence could not be construed merely on the confessional statement of the accomplice without any corroboration, it was held that when the statement of the accomplice itself prima facie made out an involvement of the petitioner in the alleged offence, the corroboration part of the statement would be a matter to be embarked upon by the trial Court. 9 1 Subramania Goundan v. State of Madras, AIR 1958 SC 66. 2 Kashmira Singh v. State of M.P., AIR 1952 SC 159; Bhaluka Behera v. State, AIR 1957 Ori. 172. 3 Haroom Haji Abdulla v. State of Maharastra, AIR 1968 SC 832; Lexman Padma Bagat v. State, AIR 1965 Bom 195; Bhuboni Sahu v. King, AIR 1949 PC 257; Haricharan Kurmi v. State of Bihar, AIR 1964 SC 1184; Kashmira Singh v. State of M.P., AIR 1952 SC 159; In re : Deivendran, 1996 Cr LJ 2209 (para 40) (Mad). 4 State v. Debnu, AIR 1957 HP 52. 5 Ranjha v. State, AIR 1951 HP 75; Nitai Chandra Jana v. Emperor, AIR 1937 Cal 433. 6 Prakash Kumar v. State of Gujarat, (2007) 4 SCC 266, 269 (para 6) : 2007 CrLJ 2731; Haricharan Kurmi v. State of Bihar, AIR 1964 SC 1184 : (1964) 6 SCR 623. 7 Haroom Haji v. State of Maharashtra, AIR 1968 SC 832; Sheshanna v. State of Maharashtra, AIR 1970 SC 1330. 8 Ramprasad v. State of Maharashtra, 1999 Cr LJ 2889 (para 26) (SC) : AIR 1999 SC 1969. 9 Sant Lal v. State of U.P., 2006 CrLJ 690, 693, (para 11) (All-DB). The Court relied on Suresh Chandra Bahri v. State of Bihar, AIR 1994 SC 2420; Mohd. Hussain Umar Kochra v. K.S. Dalip Singhji, AIR 1970 SC 45; Bhiva Doulu Patil v. State of Maharashtra, AIR 1963 SC 599.

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Ratanlal & Dhirajlal: Law of Evidence, Updated 23rd Edition/THE INDIAN EVIDENCE ACT (ACT 1 OF 1872)/PART III PRODUCTION AND EFFECT OF EVIDENCE/CHAPTER IX OF WITNESSES/S. 134.

CHAPTER IX OF WITNESSES S. 134. Number of witnesses. No particular number of witnesses shall in any case be required for the proof of any fact. 1. PRINCIPLE AND SCOPE

This section states that no particular number of witnesses shall be required in any case for proof of any fact. See also commentary under the head "Number of witnesses" in Section 3. B EST ON E VIDENCE (8th Ed., Sections 597, 598 P. 554 & 555) observed "Now we are by no means prepared to deny that under a system where the decision of all questions of law and fact is entrusted to a single judge or in a country where the standard of truth among the population is very low, such a rule may be a valuable security against the abuse of power and the risk of perjury; but it is far otherwise where a high standard of truth prevails, and facts are tried by a jury directed and assisted by a judge. Add this that the anomaly of act ing on the testimony of one person is more apparent than real; for the decision does not proceed solely on the story told by the witness, but on the moral conviction of its truth, based on its intrinsic probability and his manner of giving evidence." In England, the general rule is the same as enacted by the present section 10 though there are certain exceptions where the testimony of a single witness is declared by Statute to be insufficient to prove a particular fact; e.g. , in cases of treason 11 perjury 12 and personation at elections 13 , the testimony of a single witness is insufficient. In certain other cases corroboration of the testimony of a single witness is required by Statute; e.g., in cases of breach of promise the testimony of the plaintiff must be corroborated to prove the promise 14 , and in bastardy cases the mother's evidence must be corroborated. 15 The Maxim under the English Law " Unus Nullus " (one is equal to none) was not followed in this section). But as a rule of caution and prudence in cases like perjury and in sexual cases the rule in English Law has been followed. 16 Under the English Law in certain cases two witnesses are necessary, e.g., prosecution for perjury, treason etc. The Bombay High Court has laid down that in ordinary cases, and where the provisions peculiar to the Indian Law do not apply, the rule of English Law which is founded on substantial justice may well serve as a safe guide to those who have to administer the criminal law in this country. 17 The Court 18 should not leave the number of witnesses to be summoned to the whims and fancies of the party producing the witnesses. The Court has to apply its mind and restrict the number of witnesses to an extent which caters the requirement of the case. In determining the number of witnesses, a court should take into account the following guidelines:-16a)   17b)   8c)  

Nature of litigation Number of issues required to be produced. Nature of the issues.

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4d)   The fact as to on whom the onus has been laid 3e)   The specified purpose for which a particular witness is required to be produced. The party seeking to produce a witness is also required to specify the purpose for which the witness is proposed to be produced. Thus detailing out of a purpose is necessary requirement and in absence of that the Court will be within its limits to disallow summoning of that witness. Normally, the prosecution's duty is to examine all the eyewitnesses the selection of whom has to be made with due care, honestly and fairly. The witnesses have to be selected with a view not to suppress any honest opinion, and due care has to be taken that in selection of witnesses, no adverse inference is drawn against the prosecution. However, no general rule can be laid down that each and every witness has to be examined even though his testimony may or may not be material. The most important factor for the prosecution being that all those witnesses strengthening the case of the prosecution have to be examined, the prosecution can pick and choose the witnesses who are considered to be relevant and material for the purpose of unfolding the case of the prosecution. The prosecution is not bound to call a witness about whom there is a reasonable ground for believing that he will not speak the truth. It is not the quantity but the quality of the evidence that is important. In the case at hand, if the prosecution felt that its case has been well established through the witnesses examined, it cannot be said that non-examination of some persons rendered its version vulnerable. Hence, non-examination of some of the witnesses who could not identify all the accused in the T.I. parade, was held to be of no consequence. 19 The Supreme Court observed that the first decision on the issue of the number of witnesses was in Mohamed Sugal Esa v. The King , 20 in which the Supreme Court upheld the conviction of the accused for murder based on the testimony of a girl aged 10-11 years, who was the sole eye-witness of the occurrence, as she was able to understand the questions put and give rational answers. 10 P HIPSON , E V ., 6th Ed., 484. 11 See Treasons Act, 1695, Sections 2 and 4. 12 See Perjury Act, 1911, Section 13. 13 See 6 & 7 Vict., c. 18, Section 88; 35 & 36 Vict., c. 33, Sections 24 and 37. 14 32 & 33 Vict., c. 68, Section 2. 15 8 & 9 Vict., c. 10, Section 6; 35 & 36 Vict., c. 65 Section 4. 16 Raj Lal Data v. State, AIR 1952 HP 1; Budhu Mian v. Emperor, AIR 1947 Pat 416. 17 P ER J ENKINS , C.J., in Emperor v. B.G. Tilak, (1904) 6 Bom LR 324, 339 : ILR 28 Bom 479. 18 Yashpal Sawhney v. Gandotra Traders, AIR 1996 J&K 32 (paras 7 and 9), following AIR 1983 SC 925. 19 Mohd. Khalid v. State of W.B., (2002) 7 SCC 334 (paras 14, 15 and 16), relying on Habeeb Mohd. v. State of Hyderabad, AIR 1954 SC 51 : 1954 CrLJ 338. 20 AIR 1946 PC 3. See also Chittar Lal v. State of Rajasthan, AIR 2003 SC 3590 (para 7) : (2003) 6 SCC 397 : 2003 CrLJ 3548.

2. NUMBER OF WITNESSES What matters in the appreciation of evidence of witnesses, is not the number of witnesses, but the quality of their evidence. 21 Increase in the number of witnesses cannot be said to be the requirement of the case. Evidence of the witnesses already examined cannot be thrown outrightly on the ground that other witnesses have not been produced. 22 Conviction can be based on the testimony of a single witness, if he is wholly reliable. Corroboration may be necessary when he is only partially reliable. If the evidence is unblemished and beyond all possible criticism and the Court is satisfied that the witness was speaking the truth, then on his evidence alone conviction can be maintained. 23

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Conviction of the accused for an offence can be based on the evidence of solitary witness as the evidence is weighed and not counted but evidence of such a witness especially when he is a close relative of the victim must be scanned with much caution. The evidence of such a witness must be cogent, trustworthy and above reproach. 24 The conviction of the accused can be based on sole testimony of an eye-witness and the evidence of such an eye-witness should not be discarded unless it suffers from any serious infirmity. 25 Courts can place reliance and hold the accused guilty on the solitary testimony of a witness provided his evidence is found to be trustworthy and above board. 26 The Apex Court held that plea that the court should insist upon plurality of witnesses, was not tenable. 27

Where delayed examination of an eye-witness was not explained and his wife though present was not examined and infliction of specific number of injuries stated by the witness and places of injuries were not corroborating with the medical evidence, placing reliance on evidence of such a witness was held to be not proper. 28 21 Krishna Mochi v. State of Bihar, AIR 2002 SC 1965 (para 77) : (2002) 6 SCC 81 : 2002 CrLJ 2645; See also Joseph v. State of Kerala, AIR 2003 SC 507, (paras 11 to 14) : (2003) 1 SCC 465 : 2003 CrLJ 813, reversing Cri A. No. 324 22 Ashok Kumar v. State, 2008 CrLJ 882(NOC) (Utr) ; Ramjee Rai v. State of Bihar, (2006) 13 SCC 229, 236 (para 26); Namdeo v. State of Maharashtra, (2007) 14 SCC 150, 157 (para 16). 23 Chacko v. State of Punjab, AIR 2004 SC 2688 (para 7). See also Md. Kamaluddin v. State of Assam, 2008 CrLJ 98(NOC) (Gau) . 24 Babu v. State of Orissa, 2005 CrLJ 865, 866 (para 5) (Ori). See also Khaja Hussain v. Inspector of Police, Coimbatore, 2006 CrLJ 3975, 3979 (para 17) (Mad); Anandi Lal v. State of Rajasthan, 2008 CrLJ 360(NOC) (Raj) . 25 Kewela Ram v. State of Rajasthan, 2002 CrLJ 3077, 3080 (para 24) (Raj) : 2002 (3) Raj CrC 1399 : 2002 (3) Raj LR 775 : 2002 (3) WLC 684. 26 Nankoo v. State of U.P., 2004 CrLJ 4536, 4538 (para 17) (All) : 2004 All LJ 3422 : 2004 (49) All Cri C 918 : 2004 (3) All Cr R 2364 : 2004 (2) EFR 275. 27 Vithal Pundalik Zendge v. State of Maharashtra, AIR 2009 SC 1110, 1113 (para 7). 28 Niranjan Mallick v. State of Orissa, 2002 CrLJ NOC 108(Ori) : (2001) 18 OCR 603.

3. SINGLE WITNESS The Supreme Court 29 observed: 1(1)   As a general rule, a Court can and may act on the testimony of a single witness though uncorroborated, One credible witness outweighs the testimony of a number of other witness of indifferent character. 34)   Unless corroboration is insisted upon by statute, Courts should not insist on corroboration except in cases where the nature of the testimony of the single witness itself requires as a rule of prudence, that corroboration should be insisted upon, for example, in the case of a child witness, or of a witness whose evidence is that of an accomplice or of an analogous character. 18)   Whether corroboration of the testimony of a single witness is or is not necessary, must depend upon facts and circumstances of each case and no general rule can be laid down in a matter like this and much depends upon the judicial discretion of the judge before whom the case comes. In view of these considerations, the Court had no hesitation in holding that the contention that in a murder case, the Court should insist upon plurality of witnesses, is much too broadly stated. Sections 134 of the Indian Evidence Act , has categorically laid it down that "no particular number of witnesses shall, in any case, be required for the proof of any fact." The Legislature determined, as long ago as 1872, presumably after due consideration of the pros and cons, that it shall not be necessary for proof

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or disproof of a fact, to call any particular number of witnesses. In England, both before and after the passing of the Indian Evidence Act , 1872, there have been a number of statutes as set out in SARKAR ' S 'L AW OF E VIDENCE '--9th Edition, at pages 1100 and 1101, forbidding convictions on the testimony of a single witness. The Indian Legislature has not insisted on laying down any such exceptions to the general rule recognized in Section 134 quoted above. The section enshrines the well recognized maxim that "evidence has to be weighed and not counted". Our Legislature has given statutory recognition to the fact that administration of justice may be hampered if a particular number of witnesses were to be insisted upon. It is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases which are not of uncommon occurrence where determination of guilt depends entirely on circumstantial evidence. If the Legislature were to insist upon plurality of witnesses, cases where the testimony of a single witness only could be available in proof of the crime, would go unpunished. It is here that the discretion of the presiding judge comes into play. The matter thus must depend upon the circumstances of each case and the quality of the evidence of the single witness, whose testimony has to be either accepted or rejected. If such a testimony is found by the Court to be entirely reliable, there is no legal impediment to the conviction of the accused person on such proof. Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though a considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution. Hence, it is a sound and wellestablished rule of law that the Court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Accordingly, the Supreme Court in Sardul Singh v. State of Haryana 30 also held that it is the quality of the evidence and not merely the quantity that really matters. Generally speaking oral testimony in this context may be classified into three categories, namely, (1) wholly reliable, (2) wholly unreliable and (3) neither wholly reliable nor wholly unreliable. In the first category of proof, the court should have no difficulty in coming to its conclusion either way--It may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subordination. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if Courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subordination of witnesses. Situations may arise and do arise where only a single person is available to give evidence in support of a disputed fact. There are exceptions to this rule, for example, in cases of sexual offences or of the testimony of an approver; both these are cases in which the oral testimony is, by its very nature, suspect being that of a participator in crime. But, where there are no such exceptional reasons operating, it becomes the duty of the court to convict, if it is satisfied that the testimony of a single witness is entirely reliable." The law of evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, faced with the testimony of a single witness, the Court may classify the oral testimony into three categories, namely (i) wholly reliable, (ii) wholly unreliable, and (iii) neither wholly reliable nor wholly unreliable. In the first two categories there may be no difficulty in accepting or discarding the testimony of the single witness. The difficulty arises in the third category of cases. The Court has be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial, before act ing upon testimony of a single witness. Where the sole eye-witness belonged to the third category and there being many other infirmities in the evidence, his testimony was not relied upon. 31 Conviction can be based on the testimony of a single witness if he is wholly reliable. Corroboration may be necessary when he is only partially reliable. If the evidence is unblemished and beyond all possible criticism and the Court is satisfied that the witness was speaking the truth, then on his evidence alone conviction can be maintained. 32 Neither the legislature nor the judiciary mandates that there must be a particular number of witnesses to record an order of conviction against the accused. Our legal system has always laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. It is therefore, open to a competent Court to fully and

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completely rely on a solitary witness and record conviction. Conversely, it may acquit the accused inspite of the testimony of several witnesses if it is not satisfied about the quality of evidence. The bald contention that no conviction can be recorded in case of a solitary eye-witness, therefore, has no force and must be negatived. 33 Conviction can be based on the sole testimony of a witness. There is no bar against it. However, the testimony of such a witness should be viewed with caution and circumspection. The appropriate test to apply would be the close and severe scrutiny test. If the witness is reliable, then it does not matter, if he is partisan or interested or both. The evidence of a sole witness should be of sterling quality, natural and convincing enough to record a conviction. Therefore, if there is some doubt then a conviction ought not to be based on the testimony of a sole witness. There would, of course, be some notable exceptions, as for example in a case of sexual assault. 34 Where the deceased was strangled to death and there was only one eye-witness (P.W. 14) to the occurrence, the Supreme Court observed: "indeed, there can be no doubt that the evidence of a man like P.W. 14, should be scanned with much caution and we must be fully satisfied that he is a witness of truth, especially when no other person was present at the time to see the murder. Though he was not an accomplice, we would still want corroboration on material particulars in this particular case, as he is the only witness to the crime, and as it would be unsafe to hang four people on his sole testimony unless we feel convinced that he is speaking the truth....What the law requires is that there should be such corroboration of the material part of the story connecting the accused with the crime as will satisfy reasonable minds that the man can be regarded as a truthful witness." 35 In Yadivelu Thevar v. State of Madras , 36 the Supreme Court referred to this decision and distinguished on the ground that the court insisted on corroboration of the testimony of a single witness not on the ground that his was the only evidence but on the ground that his evidence was analogous to that of an accomplice in the peculiar circumstances of the case. In Ramrathan v. State of Rajasthan 37 relying on Yadivelu Thewar v. State of Madras 38 , the Supreme Court reiterated the principle that as a general rule the court may act on the testimony of a single witness, though uncorroborated unless circumstances of a particular case where the nature of the testimony of the single witness itself requires as a rule of prudence, that corroboration should be insisted upon and that the question whether corroboration of the testimony of a single witness was or was not necessary, must depend upon facts and circumstances of each case. There is no hard and fast rule and in each case the court has to consider whether it can be reasonably satisfied to act even upon the testimony of a single witness for the purpose of convicting the person. 39 When the case rests on the testimony of the sole eye-witness, it should be wholly reliable. 40 Conviction can be based on the occular account of a solitary witness. 41 When the evidence of the eye-witness was acceptable, mere non-examination of another person (her eight year old son sleeping in the room of occurrence) was not fatal. 42 Though the evidence of the sole eye-witness should be scrutinised with greater care and caution, yet if it is creditworthy, conviction can be based thereon. 43 If the witness is otherwise reliable and trustworthy, the fact which is sought to be proved by that witness need not be further proved through other witnesses. 44 However, where the solitary witness supporting the prosecution case suffered from material discrepancies inasmuch as the place of occurrence was not established, the Supreme Court held that the High Court was not right in lightly brushing aside the apparent inconsistencies and discrepancies making a general observation that he was an illiterate person. The judgment of the High Court was held to be unsustainable. 45 It is open to a final Court of fact to believe or disbelieve a statement, but simply because statement is of one witness that cannot by itself be a ground for not acting upon that testimony. 46 However, in view of the fact that the enquiry was being made into an incident which took place four and a half year ago, the Tribunal in assessing the evidence made a criteria that it would not accept that any workman was incriminated unless at least two witnesses deposed before him. The approach of the Tribunal in the circumstances was held to be prudent. 47 29 Vadivelu Thevar v. State of Madras, AIR 1957 SC 614 : 1957 SCJ 527. See also Chittar Lal v. State of Rajasthan, AIR 2003 SC 3590 (para 7); Shanker v. State of Rajasthan, 2004 CrLJ 1608, 1613 (para 27) (Raj) : 2004 CrLR (Raj) Raj 938 : 2004 (2) Raj LR 601 : 2004 (2) WLC 269; Ravi v. State Rep. by Inspector of Police, AIR 2009 SC 214, 217 (paras 8 and 9) : (2008) 10 JT 386.

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30 (2002) 8 SCC 372 (para 9); See also Simon v. State of Karnataka, (2004) 2 SCC 694, 700 (para 8) : AIR 2004 SC 2775; Debashis Chakraborty v. Mausumi Bhattacharjee, AIR 2007 Gau 178, 183 (para 18); Hari Singh v. State, 2008 CrLJ 2133, 2138 (para 15) (Utr). 31 Lallu Manjhi v. State of Jharkhand, AIR 2003 SC 854 (para 10) : (2003) 2 SCC 401 : 2003 CrLJ 914, reversing Cri A. No. 45 of 1991 (R), dated 19.8.1996 (Pat). 32 Ramesh Krishna Madhusudan Nayar v. State of Maharashtra, AIR 2008 SC 927, 929 (para 7) : (2008) 14 SCC 491. 33 Namdeo v. State of Maharashtra, 2007 CrLJ 1819, 1824 (para 30) : (2007) 3 SCR 939. 34 Prakash v. State, 2007 CrLJ 320(NOC) (DB) (Del). 35 Satyanarayan Reddy v. State of Hyd., AIR 1956 SC 379. 36 AIR 1957 SC 614. 37 AIR 1962 SC 424. 38 AIR 1957 SC 614. 39 Badri v. State of Rajasthan, AIR 1976 SC 560; Maqsoodan v. State of U.P., AIR 1983 SC 126 (Neither the number of witnesses nor the quantity of evidence is material. It is the quality that matters); Kunharu v. State of Kerala, 1964 Mad LJ 334(Cri) : 1963 Ker LT 325; Sathya Vir v. State of U.P., AIR 1958 All 746; Kochan Velayudhan v. State of Kerala, AIR 1961 Ker 8; Ram Bux v. State, 1961 MPLJ (Notes); Chhota Singh v. State, ILR 1957 Cut 642; Daya Singh v. State, ILR 1969-19 Raj 317; State v. Rambali, AIR 1953 All 163; State v. Dasurath Lahanu Kadu, (1973) 75 Bom LR; Apren Joseph v. State of Kerala, 1972 Cr LJ 1162 : (1971) 2 Ker 381(Ker) ; Kanaran v. State, (1972) 1 Ker 476; Municipal Corporation Delhi v. J.B. Bottling Co. Pvt. Ltd., 1978 Cr LJ 1149(MP) ; Israful Seikh v. State of Bihar, 1978 BLJ 381(Pat) : 1978 Cr LJ 240(NOC) ; Balraj Singh v. State of Punjab, 1976 Cr LJ 1471(P&H) ; Maqsoodan v. State, 1982 All LJ 1524 : AIR 1983 SC 126; Kewala Shankar v. State, 1985 All LJ 1216(DB) ; Ganpat Hiraman v. State of Maharashtra, ILR 1976 Bom 464; Prabakar Behara v. State of Orissa, (1984) 58 Cut LT 42 : 1985 Cr LJ 6(NOC) ; Lechha v. State of Rajasthan, 1977 Raj LW 153 : 1978 Cr LJ 112(NOC) ; Binder Singh v. State of Rajasthan, 1984 Raj LR 285(DB) : 1984 Cr LJ 178(NOC) ; Appukuttan v. State of Kerala, 1989 Cr LJ 2362(Ker) ; Ramashish Rai v. State of Bihar, 1989 Cr LJ 336(Pat) ; State of Orissa v. Dillip Kumar Chand, 1987 Cr LJ 1242(Ori) ; Rameshwar v. State of U.P., 1987 Cr LJ 442(All) ; Mahipal Pur Co-op., Society Ltd. v. Prabhati (Smt.), AIR 1986 Del 94; Malik Abdul Salam v. State of Orissa, 1985 Cr LJ 1871; State of Maharashtra v. Raju Dadaba Borge, 2001 Cr LJ 3638 (para 11) (Bom); Amar Singh v. Balwinder Singh, AIR 2003 SC 1164 (para 16) : (2003) 2 SCC 518 : 2003 CrLJ 1282. 40 Kathi Odhabhai Bhimabhai v. State of Gujarat, 1993 Cr LJ 187 (para 4) (SC) : AIR 1993 SC 1193. See also Narendra v. State of U.P., 2003 CrLJ 2068, 2072 (para 24) (All) : 2003 All LJ 773 : 2003 (46) All CrC 211 : 2002 (3) All CrR 2949; Sewaka v. State of M.P., (2001) 10 SCC 1 : 2002 SCC 940(Cri) ; Anil Phukan v. State of Assam, (1993) 3 SCC 282 : 1993 SCC 810(Cri) ; Pema Tamang v. State of Sikkim, 2006 CrLJ 2999, 3002 (para 15); Mahendra Singh v. State of M.P., (2007) 9 SCC 796, 799 (para 11) : (2007) 4 SLT 417; Ramji Surjya Padvi v. State of Maharashtra, (1983) 3 SCC 629. 41 Shyamrao Vishnu Patil v. State of Maharashtra, 1998 Cr LJ 3446 (para 10-A) (Bom). 42 Jinnat Mia v. State of Assam, AIR 1998 SC 533. See also Babu Ram v. State of U.P., (2002) 6 SCC 518 (para 7). 43 Islam-ud-din v. State, 1996 Cr LJ 2613(Del), relying on Kartik Malhar v. State of Bihar, (1995) 8 JT 425(SC) : 1995 AIR SCW 4540 : 1996 Cr LJ 889(SC) . Testimony of solitary eye-witness clear, cogent and trustworthy, giving graphical description, only a minor omission, conviction, Sunil Kumar v. State of NCT of Delhi, AIR 2004 SC 552 (para 9) : (2003) 11 SCC 367 : 2004 CrLJ 819, applied in Kunju v. State of T.N., (2008) 2 SCC 151, 154 (para 9) : AIR 2008 SC 1381. Natural, creditworthy, convincing and corroborated testimony, conviction, State of Punjab v. Hardam Singh, (2003) 12 SCC 679 (para 4) : AIR 2003 SC 4343 : 2003 CrLJ 5048. See also Ramswaroop v. State of M.P., 2006 CrLJ 475, 48182 (paras 27 and 28) (MP); Aadam Kasam Shaikh v. State of Maharashtra, 2006 CrLJ 4585, 4589 (para 12) (Bom). 44 Chaudhari Ramjibhai Narasangbhai v. State of Gujarat, (2004) 1 SCC 184, 187 (para 4) : AIR 2004 SC 313 : 2004 CrLJ 280. See also Laxman Narayan Jadhav v. State of Maharashtra, 2006 CrLJ 290(NOC) (Bom) : 2006 (3) AIR Bom R 381 (Nagpur Bench). 45 Syed Ibrahim v. State of A.P., (2006) 10 SCC 601, 606-07 (paras 11 and 12) : AIR 2006 SC 2908. 46 Ram Nath v. Extra Assistant Commissioner, Jabalpur, ILR (1953) Nag 361. 47 Meenglas Tea Estate v. Workman, AIR 1963 SC 1719 (1721) (para 5).

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4. SOLE WITNESS--CORROBORATION In the instant case, the accused was convicted for murder on the basis of the uncorroborated testimony a child witness, the sole eye-witness a girl of 10-11 years. As to the pleading in appeal before the PC that conviction could not be based on such uncorroborated testimony, the then Highest Court of Appeal observed that in India there was, unlike England, no provision that such a testimony was inadmissible. It held that once there was admissible evidence a Court could act upon it; corroboration, unless required by statute, went only to the weight and value of the evidence. It is a sound rule in practice not to act on the uncorroborated evidence of a child, whether sworn or unsworn, but this is a rule of prudence and not of law. 48 Corroboration to the testimony of the single witness should be insisted upon where nature of the testimony itself requires. However, no general rule can be laid down. 49 48 Mohamed Sugal Esa v. King, AIR 1946 PC 3. See also Chittar Lal v. State of Rajasthan, AIR 2003 SC 3590 (para 7) : (2003) 6 SCC 397 : 2003 CrLJ 3548; Debashis Chakraborty v. Mausumi Chattacharjee, AIR 2007 Gau 178, 182-83 (para 17); Vithal Pundalik Zendge v. State of Maharashtra, AIR 2009 SC 1110, 1112-13 (para 6). 49 Vithal Pundalik Zendge v. State of Maharashtra, AIR 2009 SC 1110, 1112-13 (para 6).

5. SOLE WITNESS--CORROBORATED The single prosecution witness stated about the recovery of non-duty paid ganja from the possession of the accused. His evidence was corroborated by the confessional statement recorded by another prosecution witness. It was held conviction based on solitary evidence supported by confession is sufficient. 50 In Shanker v. State , 51 the Rajasthan High Court regarding corroboration of evidence of single witness held as under : 36)   As a general rule, a Court can and may act on the testimony of a number of other witnesses of indifferent character. 35)   Unless corroboration is insisted upon by Statute, Courts should not insist on corroboration except in cases where the nature of the testimony of the single witness itself requires as a rule of prudence, that corroboration should be insisted upon, for example in the case of child witness whose evidence is that of an accomplice or of an analogous character. 19)   Whether corroboration of the testimony of single witness is or is not necessary, must depend upon facts and circumstances of each case and no general rule can be laid down in a matter like this and much depends upon the judicial discretion of the Judge before whom the case comes. 50 1957 BLJR 149. 51 2004 CrLJ 1608, 1613 (para 23) (Raj). The Court relied on Jagdish Prasad v. State of M.P., 1995 SCC 160(Cri) : 1994 CrLJ 1106 : 2004 CrLR 938(Raj) : 2004 (2) Raj LR 601 : 2004 (2) WLC 269.

6. SOLE WITNESS--SUPPORTED BY MEDICAL EVIDENCE When the evidence of single eye-witness was corroborated by medical testimony, it would be sufficient to base the conviction. 52 52 Choota Singh v. State, ILR 1957 Cut 642; Radhakishan v. State of Rajasthan, 1973 Cr LJ 481(Raj) ; Nandeswar Kalita v. State of Assam, 1983 Cr LJ 1515(Gau) ; (sole child witness); Vahula Bhushan v. State of T.N., AIR 1989 SC 236.

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7. NON-EXAMINATION OF A WITNESS It is true that prosecution is not bound to examine each and every person who has been named as witness. A person named as witness may be given up when there is material to show that he has been gained over or that there is no likelihood of the witness speaking the truth in the Court. 53 The law is well settled that the prosecution need not examine all the witnesses on the same point. Where the prosecution has examined two injured witnesses and two independent eye-witnesses and there is nothing on record to show that the witnesses who are said to have not been examined were material witnesses and the prosecution has withheld and not examined them with ulterior motive, it would not be fatal to the prosecution case. 54 It was held that non-examination of the investigating officer by the prosecution is not fatal to the prosecution case. The Apex Court observed that often in order to help the accused party, specially where the I.O.s are won over for whatever consideration, they absent themselves and do not appear as a witness. In the instant case the complainant had filed a protest petition before the ACJM complaining about the investigation which explains the non-examination of the I.O. 55 In Raj Kishore Jha v. State of Bihar , 56 the Supreme Court held that mere non-examination of the Investigating officer does not in every case cause prejudice to the accused or affects the credibility of the prosecution version. In the instant case, after the examination-in-chief and partial cross-examination, the I.O. had expired. It was held that no prejudice could be caused to the accused on account of non examination of the I.O. and no lapse or ulterior motive, in such circumstances, could be attributed to the prosecution. Though the arresting officer of the accused is a material witness in a case but his non-examination in the witness-box is not fatal to the prosecution case. 57 In a murder case, the ornaments belonging to the deceased were recovered, at the instance of the accused from a jewellery shop and the owner of the shop to whom the ornaments were sold was not examined. The Supreme Court held that in view of other consistent evidence as to the identification of the ornaments, his non-examination was not fatal. 58 Non-examination of a witness who is not likely to support the prosecution case per se does not corrode the vitality of the prosecution version, particularly when the witnesses examined have withstood incisive cross-examination and pointed to the accused as perpetrators of the crime. 59 Non-examination of a witness who was not an eyewitness, on facts was held to be of no consequence. 60 Where a large number of witnesses were examined and their evidence was found to be reliable and they supported the prosecution case, merely non-examination of the grandchild of the informant did not affect the prosecution case adversely. 61 In a case under 498-A, IPC , it was alleged that the accused husband ill-treated his deceased wife to get more money from her mother. It was contended that no witness was examined from the place where the wife had her matrimonial home. The Supreme Court held that it was not possible for the prosecution to get a witness from that place to prove ill-treatment by husband in the matrimonial home. In any event it was held to be not a good enough reason to reject the testimony of a large number of witnesses who have deposed on this aspect of the case. 62 In a case of family feud it was contented that one of the sons was not examined as a witness, the Supreme Court held that there was no material to show that the son, not examined, was involved in the feud. So no adverse inference could be drawn on this ground. 63 Where some witnesses arrived at the place of occurrence during the assault and intervened in the matter but were not examined, it was held that their nonexamination would not affect the veracity of the prosecution case when evidence of other witnesses was found to be credible and corroborated. Similarly, non-examination of a witness who informed other two witnesses that the accused had assembled at a certain place and were planning to murder the deceased persons, would not affect the manner of occurrence at the relevant place. 64 In a case certain alleged eye-witnesses were not examined but the investigating officer and the witnesses were examined to explain the reason for it and nothing was brought on record to discredit those claims. Hence it was held to be not fatal. 65 Mere failure to examine all the witnesses who may have witnessed the occurrence, will not result in the outright rejection of the prosecution case, if the witnesses examined by the prosecution are found to be truthful and reliable. The Apex Court observed that it could be ignored that many witnesses shy away from giving evidence for obvious reasons. 66 Nonexamination of some persons per se does not corrode the vitality of the prosecution version, particularly when the prosecutrix has, notwithstanding her mental deficiencies, withstood incisive cross-examination and pointed to the accused as the perpetrator of the crime. 67 In a case under NDPS Act, the seizure was made by PW-1 but mahzar was drawn by another person who was not

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examined. It was held that his non-examination was of no consequence in view of the fact that the seizure was conducted by PW-1. 68 Where the prosecution case was supported by the eye-witnesses who appeared to be natural witnesses and their evidence was supported by medical evidence and an independent witness and there was no contradiction in evidence of the prosecution witnesses in regard to the manner and the place of occurrence, it was held that mere non-examination of the witnesses living near the place of occurrence itself does not create any doubt in the prosecution case. 69

The accused persons hired a taxi and went to a hotel and stayed there in a room alongwith the driver for the might. Early in the morning, they left the hotel asking a waiter to take care of their uncle i.e. the driver who was in the room and that they would be returning soon but never returned. On opening the room the driver was found dead. The waiter informed the owner of the hotel who in turn informed the police. The waiter who alone was the solitary witness to prove the circumstances was not examined and neither any explanation was given by the prosecution for his non-examination, though the same was held to be vital for the prosecution case. 70 Failure on the part of prosecution to examine three eye-witnesses present at the place of occurrence, an adverse inference would be drawn against the prosecution case. 71 It is not necessary that in all cases all the witnesses to the incident should be examined and that too on the same point, when other witnesses examined fully supported the prosecution case. 72 As to the non-examination of the 'Investigating Officer' see also under sub-heading 'Police and other officers' under the heading 'Different categories of witnesses' under Section 3. Also see under Section 114(g). 53 Zahira Habibulla H. Sheikh v. State of Gujarat, AIR 2004 SC 3114 (para 74) : 2004 SCC 158; See also Sardul Singh v. State of Haryana, (2002) 8 SCC 372 (para 7) : AIR 2002 SC 3462. 54 Babukhan v. State of M.P., 2004 CrLJ 3299, 3302 (para 12) (MP) : 2004 CrLR (SC&MP) MPI 522. 55 Narendra Nath Khaware v. Parasanath Khaware, (2003) 5 SCC 488 (para 7) Non-examination of a won over witness, State of Punjab v. Harbans Singh, (2003) 11 SCC 203 (para 9) : AIR 2003 SC 2268 : 2003 CrLJ 2335 and State of Punjab v. Hardam Singh, (2003) 12 SCC 679 (para 9) : AIR 2003 SC 4343 : 2003 CrLJ 5048. 56 (2003) 11 SCC 519 (para 11) : AIR 2003 SC 4664 : 2003 CrLJ 5040, relying on Ram Dev v. State of U.P., 1995 Supp (1) SCC 547; Behari Prasad v. State of Bihar, (1996) 2 SCC 317; Ambika Prasad v. State (Delhi Admn.), (2000) 2 SCC 646; Bahadur Naik v. State of Bihar, (2000) 9 SCC 153; Ram Gulam Chaudhari v. State of Bihar, (2001) 8 SCC 311 : AIR 2001 SC 2842 : 2001 CrLJ 4632. 57 Nankoo v. State of U.P., 2004 CrLJ 4536, 4538 (para 17) (All) : 2004 All LJ 3422 : 2004 (49) All CrC 918 : 2004 (3) All CrR 2364 : 2004 (2) EFR 275. 58 Rajendra Kumar v. State of Rajasthan, (2003) 10 SCC 21 (para 7) : AIR 2003 SC 3196 : 2003 CrLJ 4344, Contra State of T.N. v. Sunder, (2003) 12 SCC 695, 699 (para 5) : AIR 2004 SC 1216 : 2004 CrLJ 913. 59 State of M.P. v. Dharkole, AIR 2004 SC 44 (para 14), See also Bharosi v. State of M.P., (2002) 7 SCC 239 (para 9) : AIR 2002 SC 3299 : 2002 CrLJ 4322. 60 State of M.P. v. Mansingh, (2003) 10 SCC 414 (para 12). 61 Nandu Rastogi v. State of Bihar, (2002) 8 SCC 9 (para 12), See also Jayantibhai Bhenkarbhai v. State of Gujarat, (2002) 8 SCC 165 (para 17); Mundlapadi Krishnaiah v. State of A.P., (2003) 12 SCC 188 (para 9). 62 State of Karnataka v. K. Gopalakrishna, (2005) 9 SCC 291, 296 (para 11) : AIR 2005 SC 1014 : 2005 CrLJ 1436. 63 Balram Singh v. State of Punjab, (2003) 11 SCC 286 (para 12) : AIR 2003 SC 2213. 64 Komal v. State of U.P., (2002) 7 SCC 82 (para 11) : AIR 2002 SC 3057; See also Sardul Singh v. State of Haryana, (2002) 8 SCC 372 (para 7) : AIR 2002 SC 3462. 65 Ram Bali v. State of U.P., (2004) 10 SCC 598, 605 (para 16) : AIR 2004 SC 2329 : 2004 CrLJ 2490. 66 Birendra Rai v. State of Bihar, (2005) 9 SCC 719, 724 (para 13) : AIR 2005 SC 1284. 67 Tulshidas Kanolkar v. State of Goa, (2003) 8 SCC 590 (para 6) : AIR 2004 SC 978.

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68 Narayanaswamy v. Asstt. Director, (2002) 8 SCC 7 (para 5) : AIR 2002 SC 3658 : 2003 CrLJ 27. 69 Awadh Mahto v. State of Bihar, 2007 CrLJ 342(Pat) . 70 Pawan Kumar v. State of Haryana, (2003) 11 SCC 241 (para 6) : AIR 2003 SC 2987 : 2003 CrLJ 3552. 71 Sunil Kashinath Raimale v. State of Maharashtra, 2006 CrLJ 589, 600 para 12(Bom) . 72 Shamsher Singh v. State of Haryana, (2002) 7 SCC 536 (para 6) : AIR 2002 SC 3480. See also State of Rajasthan v. Kashi Ram, (2006) 12 SCC 254, 266-67 (para 26) : AIR 2007 SC 144.

8. POLICE OFFICER There is no law which requires the Sub-Inspector's evidence, like that of an accomplice, to be corroborated in material particulars, before it can be act ed upon. His evidence has to be treated like that of any other material witness. 73 The evidence of the lone witness, the Investigating Officer, was relied upon to base conviction where it was found to be truthful and in spite of incisive crossexamination, nothing material could be brought to discredit his evidence. 74 Where recovery of opium under NDPS Act was made from the accused at public place like bus stand in presence of the Magistrate, the recovery cannot be doubted merely because no public witness other than Investigating Officer was present at the time of search. 75 73 1957 Mad WN 615. 74 Lopchand Naruji Jat v. State of Gujarat, (2004) 7 SCC 566, 569 (para 8) : 2004 CrLJ 4241. 75 Gurdev v. State of Haryana, 2002 CrLJ 3016, 3025 (para 23) (P&H) : 2002 (1) All CrLR 858 : 2002 (1) Chand CrC 318 : 2002 (1) EFR 239 : 2002 (1) Rec CrR 257.

9. DIVORCE CASES Under Sections 7 of the Indian Divorce Act , it was held that the English rule is to be applied in India and the uncorroborated testimony of the wife or the husband should not be accepted under Sections 7 of the Divorce Act.76 In Fairman v. F 77 , it was held that an adulterer when he/she gives evidence is an accomplice whose evidence requires corroboration. 78 Under the Hindu Marriage Act , in a petition for judicial separation, it was held that the test is qualitative and not quantitative and corroboration is not a matter of law but a matter of precaution and prudence and every case has to be decided on its merits whether it requires corroboration or not. 79 In a petition by the husband for dissolution of marriage under Sections 10 of the Divorce Act on the ground of wife's adultery and desertion, both the respondents remainedex parte and the petitioner alone gave evidence. It was held that his evidence is sufficient to grant the relief. 80 In the case of paternity of a child, it was held that it is the trial court to find out whether the evidence of the mother alone on the facts and circumstances of the case could be believed, and there is no rule that it should be corroborated. 81 In a wife's petition for nullity or marriage on the ground of husband's incapacity, corroboration is not essential to the testimony of the wife, if it is reliable. 82 76 Payne v. P., 42 MLJ 526(FB) ; Pendurthi v. P, 43 MLJ 441(FB) ; Premchand v. Hira, AIR 1927 Bom 594. 77 (1949) 1 All ER 939. 78 Galler v. Galter, (1954) 1 All ER 536. 79 Saptami Sarkar v. Jagadish Sarkar, (1970) 1 Cal 272. 80 Antoniswamy v. Anna Manikam, AIR 1970 Mad 91.

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81 (1970) 1 MLJ (Cri) 207. 82 Suvarnabahen v. Rashmikantt, AIR 1970 Guj 43.

10. FOOD ADULTERATION CASES A fact can be proved by the evidence of a single witness namely the Food Inspector. 83 Evidence of Food Inspector alone about the purchase of sample food stuff is sufficient and it need not be disbelieved merely because the receipt bore no seal of the shop as attesting witness turned hostile.

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It is not safe to maintain a conviction on the sole testimony of the witness who made a false statement regarding the implication of the co-accused, or when it does not inspire confidence. 85 83 Chairman Suri Municipality v. Sisir Kumar Ghosh, (1961) 2 Cal 257; Public Prosecutor v. Sub-ban Chettiar, (1970) 1 MLJ 402; Conviction can be based on the sole testimony of food inspector if it is trustworthy; P.P. v. Marappan, 1980 Mad LJ 256(Cri) . 84 State v. Appuswami, 1980 Mad LJ 734(Cri) : 1980 Cr LJ 168(Noc) (Mad) . 85 Pritam Singh v. State of Punjab, (1980) 2 FAC 356(Punj) ; Amar Singh v. State of Punjab, (1980) 2 FAC 344(Punj) .

11. UNLAWFUL ASSEMBLY AND RIOT The testimony of one single witness, if wholly reliable, is sufficient to establish the identification of the accused as a member of an unlawful assembly. However, when the size of unlawful assembly is quite large and many persons would have witnessed the incident, it would be prudent to insist on at least two reliable witnesses for the identification of the accused. 86 In rioting and similar type of cases, it would be extremely hazardous to convict on the testimony of a single eye-witness. In such cases, the rule of prudence requires that the Courts should insist on plurality of eye-witness account. 87 The Allahabad High Court has held that in communal riot cases it is unsafe to convict on the evidence of one witness alone, unless there is satisfactory circumstantial evidence in addition. 88 Where attacks and counter-attacks by two factions in a locality, created terror in the minds of the people living there, the prosecution examined some witnesses of the locality. It was held that as there was no evidence to show that any person other than the witnesses examined had seen the occurrence, the contention that the prosecution did not examine other witnesses of the locality could not be sustained. It is the quality of the evidence and not the number of witnesses that matters in such case. 89 86 Binay Kumar Singh v. State of Bihar, 1997 Cr LJ 362 : AIR 1997 SC 322. 87 Babu Hamidkhan Mestry v. State of Maharashtra, 1995 Cr LJ 2355 (paras 10 and 11) (Bom), following Masalti v. State of U.P., 1965 (1) Cr LJ 226 : AIR 1965 SC 202. 88 Emperor v. Ujagar, (1933) 55 All 639. 89 Appukuttan v. State of Kerala, 1989 Cr LJ 2362(Ker) (DB).

12. SEXUAL OFFENCES It is now a well-settled principle of law that conviction can be sustained on the sole testimony of the prosecutrix, if it inspires confidence, as in the traditional non-permissive bounds of the society of India, no girl or woman of self-respect and dignity will depose falsely implicating somebody of ravishing her chastity by sacrificing and jeopardizing her future prospect of getting married with a suitable match. 90 In cases of rape no principle of law forbids a conviction on the victim's uncorroborated testimony, though she is wanting in chastity, if the jury are satisfied with the truth. However, the jury and the court should diligently guard themselves from the undue sympathy for the victim. 91

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The Supreme Court held that in sexual offence corroboration is not essential before conviction. As the victim of the rape cannot be treated as an accomplice it needs no corroboration. But depending on the circumstances of the case as a matter of prudence, corroboration may be required. 92 It was held by the Supreme Court that there are exceptions to the rule that conviction can be based on the solitary testimony of the witness, for e.g. , in cases of sexual offences or of testimony of an approver, in which, testimony of the witness is, by its very nature suspect being that of a participator in crime. 93 The court reiterated the principle that the victim of rape is not an accomplice and requires no corroboration though in some cases as a rule of prudence corroboration may be required. 94 When in a rape case, the evidence of prosecutrix is inspiring confidence, it cannot be disbelieved on trivial grounds and her statement does not necessarily require any corroboration. The accused of a rape can be convicted on the basis of the sole testimony of the prosecutrix. 95 Where a minor girl was kidnapped and kept confined in a room for over a month and was repeatedly raped by two accused and the evidence of the prosecutrix was found satisfactory and unambiguous on all material incriminating aspects and she had no enmity with the accused to tender false evidence at the risk of its adverse effects on her own future, it was held that the conviction of the accused could be based on the sole testimony of the prosecutrix without its corroboration by other evidence. 96 Where the testimony of the prosecutrix is not only corroborated by that of the parents and other witnesses but also by the medical evidence that there had been a rape on her, the evidence of the prosecutrix aged about 10 years which is corroborated by other circumstances cannot be discarded especially when she has sufficiently matured understanding and her evidence is free from any defect. 97 Where the victim was alone at the time of commission of rape by the accused by grabbing and dragging her to the bush, and she alone was the eye-witness of the offence it was held that the conviction of the accused could be based on the sole testimony of the prosecutrix and it was not necessary to parade all the persons who reached at the place of occurrence after hearing the cry of the victim. 98 In sexual offences, the conviction can be based on the uncorroborated testimony of the prosecutrix, if it is found to be cogent, reliable and beyond reproach. Only because a witness prosecutrix, is a child, her evidence cannot be brushed aside altogether. Such evidence can be relied upon if it is found that she did not depose being tutored by others. 1 In case of gang rape where the other witnesses including her husband, mother and father had turned hostile on the point of disclosure of names of the accused persons by the prosecutrix but they corroborated disclosure of the incident of gang rape in her own house by five persons, the same could not be the reason to disbelieve the sole testimony of the prosecutrix as in case of rape due to various reasons and prevailing situation in the society such thing do generally happen, when the factum of rape is supported or corroborated but names of culprits are tried to be concealed. The conviction of the accused on the basis of sole testimony of the prosecutrix was held to be proper. 2 Where in case of gang rape, the prosecutrix alleged that the four accused persons, committed rape with her forcibly against her will but the doctor, examining her, did not find any injury on any part of her body including private parts and the FIR was lodged after a delay of five days after the incident though her husband was at home on the day of occurrence, it was held that on these circumstances, the statement of the prosecutrix did not appear to be straight forward, reliable and trustworthy and did not inspire confidence as it was not corroborated by medical or other evidence and conviction of the accused could not be based on such sole testimony of the prosecutrix. 3 The unsworn testimony of a minor girl aged 12 years was accepted, and the accused was convicted without any corroboration. 4 In cases of rape or abduction the court has to satisfy itself that the victim is telling the truth and that the accused was not falsely implicated. As a matter of prudence corroboration may be required. 5 In a rape case, it was found that the girl had intimacy with a prostitute who was connected with the accused and also had intercourse before. It is in that case it was held that it was unsafe and dangerous to act upon the uncorroborated testimony of the girl without corroboration. 6 The rule of law is not that the testimony of a child witness cannot be believed in any circumstance unless it is corroborated by other evidence. Before passing a conviction on the sole testimony of a child witness as a rule of caution it may require corroboration. 7

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In a gang rape case, non-production of a material witness was held to be not of much significance when the evidence of prosecutrix was found reliable and truthful and corroborated by evidence of other witnesses. 8 90 Vishnu v. State of Maharashtra, 2006 CrLJ 303, 309 (para 28) : AIR 2006 SC 508 : (2006) 1 SCC 283. 91 Boddie v. S., (1875) 52 Ala 395 (as per B RICKELL C.J.) 92 Rameshwar Kalyan Singh v. State, AIR 1952 SC 54 following R v. Baskerville, (1916) 2 KB 658. 93 Vadivelu Thevar v. State of Madras, AIR 1957 SC 614. 94 Siddeshwar v. State of W.B., AIR 1958 SC 143. See also Shamsher Bahadur v. State of Bihar, AIR 1956 Pat 404; State v. Sheodayal, AIR 1956 Nag 8. 95 Shanabhai Madhurabhai Koli Patel v. State of Gujarat, 2004 CrLJ 268, 273 (para 12) (Guj) : 2004 (1) Guj LH 408. 96 Public Prosecutor, High Court of A.P. v. Sannaila Subba Rao, 2004 CrLJ NOC 45(AP) : 2004 (2) Andh LD (Cri) 213 : 2004 (2) Andh LT (Cri) 15. 97 Premlal alias Prem Narain v. State of M.P., 2005 CrLJ 1145, 1147 (paras 18, 22 & 25) (MP). 98 Topan Das v. State of Tripura, 2005 CrLJ 2899, 2901 (para 8) (Gau). 1 Sanjay Bag v. State of Orissa, 2004 CrLJ 4714, 4716 (para 5) (Ori) : 2004 (4) Crimes 285 : 2004 (29) Ori CR 189 : 2004 (2) Ori LR 360. 2 Sitaram Chaudhary v. State of Jharkhand, 2004 CrLJ NOC 288(Jhar) : 2004 AIR Jhar HCR 2029 : 2003 (4) JCR Jha 487. 3 Jogi Dan v. State of Rajasthan, 2004 CrLJ 1726, 1731 (paras 22 & 23) (Raj) : 2004 CrLR (Raj) Raj 411 : 2004 (2) Raj CrC 780 : 2004 (2) Raj LR 635 : 2004 (3) WLC 73. 4 Lalaram v. State of M.P., AIR 1960 MP 59. 5 Gurcharan v. State of Haryana, AIR 1972 SC 2661; Madho Ram v. State of U.P., AIR 1973 SC 469. 6 Surendra v. R., 38 Cal WN 52; see also R. v. Banu Bai Ardeshir, AIR 1943 Bom 150; Motiram v. State of M.P., AIR 1955 Nag 121. 7 State v. Jan Mohammad, 1981 All LJ 367. 8 Mangi Lal v. State of Rajasthan, 2002 CrLJ 3687, 3695 (para 36) (Raj) : 2002 (1) Raj LR 599 : 2002 (2) Raj LW 983 : 2002 (2) WLC 764.

13. ILLUSTATIVE CASES WHERE EVIDENCE OF SOLE WITNESS WAS RELIED ON Where there are no exceptional reasons, it is the duty of the Court to convict if it is satisfied that the testimony of a single witness is entirely reliable, without corroboration. 9 One credible witness outweighs the testimony of a number of other witnesses of doubtful veracity. If the testimony of a single witness is found to be entirely reliable on scanning the evidence, there is no legal impediment to the conviction of the accused on such evidence. 10 Even the evidence of a single witness can sustain the conviction of an accused person if the court which saw and heard him depose, regards him as a witness of truth. 11 It is open to the court to rest its finding on the solitary testimony of a witness whom it found to be credible even if the witness had a personal interest in the litigation. 12 Where an accused voluntarily caused seven stab injuries on the person of the complainant and the prosecution witness turned hostile, it was held, when the credibility of the complainant was not shaken in the cross-examination, the accused could be held guilty. 13 When the evidence of the solitary witness is found to be cogent and trustworthy and the medical evidence corroborated his testimony, conviction would be proper even in a murder case on the basis of his evidence. 14 When the evidence is convincing and consistent and unimpeachable, conviction can be based on the solitary testimony of

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a witness. 15 It is not necessary to prove a fact that a number of witnesses should assert it; proof of a fact would depend upon the character of the witness and the competency to speak to that fact; it is the assurance or persuasiveness of the evidence which alone inspires a judicial mind to put any reliance on the testimony. 16 It is the acceptability of the evidence that matters and not the numerical sufficiency of witnesses. Conviction can be based on the evidence of sole witness. Therefore, mere nonexamination of some persons does not affect the credibility of the prosecution case. 17 When the evidence of a single witness inspires confidence and is corroborated by other evidence on the record, the single testimony is not to be discarded. 18 Consistent and corroborated testimony of sole eye-witness cannot be discarded for the mere fact that the witness could not be confronted by defence. 19 Where of four eye-witnesses, three had turned hostile, conviction could be based on the corroborated evidence of the fourth one. 20 In the case of solitary witness, what is to be borne in mind is whether it would be safe to place implicit reliance on the testimony of such witness. 21 If the evidence of the solitary witness is unblemished and beyond all possible criticism and the court is satisfied that he was speaking truth, it is sufficient to base a conviction. 22 In a case the wife was the sole witness for the murder of her husband and son. The trial court rejected her evidence as she was an interested witness and for want of corroboration. It was held that when the presence of the wife of the deceased was admitted by the accused the trial court was wrong in rejecting her evidence; that a close relation would be the last to screen the real culprit and falsely implicate an innocent person. 23 Where the part of the evidence of the eye-witness was liable to be rejected but the remaining evidence relating to the incident inspired confidence in his credibility, conviction was upheld. 24 Where the sole-eye witness of a murder case had given vivid account of occurrence in her statement and nothing could be derived after her cross-examination to doubt her credibility and her evidence was fully corroborated by medical evidence as well as evidence of independent witness, and was found to be consistent, the accused could be convicted on the evidence of such a sole eye-witness. 25 In a murder case the witness clearly stated that the accused came to his house on the date of occurrence and tried to beat him with Danda and when he snatched that Danda the accused threw stone which struck on the head of his wife-deceased and her head was broken. He was cross-examined by the accused but nothing had come out which would affect his testimony adversely on the point that the injuries on the head of the deceased were caused by the accused. It was held that the testimony of such a sole eye-witness, corroborated by medical evidence did not suffer from any material infirmity and his testimony was found to be reliable and trustworthy to convict the accused solely on its basis. 26 Conviction can be based on the testimony of a solitary witness, if the same is found to be absolutely clear and convincing and wholly reliable, as was the position in the instant case. 27 9 Vadivelu Thebar v. State of Madras, AIR 1957 SC 614; Badri v. State of Rajasthan, AIR 1976 SC 560; Satyavir v. State, AIR 1958 All 746; Kochan Velayuddham v. State of Kerala, AIR 1961 Ker 8; Rupa Saura v. State, ILR (1969) Cut 253 : 1969 CLT 175; Pema Dukpa v. State of Sikkim, 1981 Cr LJ 276; Balraj Singh v. State, 1976 Cr LJ 1471(P&H) . 10 Kunharu v. State of Kerala, 1964 Mad LJ 334(Cri) : 1963 Ker LT 325. 11 Baleshwar Rai v. State of Bihar, 1963- 2 SCR 433 : 1964-1 Cr LJ 564 (SC); Ganpat Hiraman v. State of Maharashtra, ILR 1976 Bom 464; State v. Ramaswamy, 1983 Mad LW 59(Cri) : 1983 Cr LJ 178(NOC) . 12 Shiv Singh Rakha Das v. Jiwan Dass, AIR 1958 Punj 164; Narayana Pillai v. State of Kerala, 1968 Cr LJ 1362(Ker) ; (witness-a soda vendor); Israful Seikh v. State of Bihar, 1978 Cr LJ 240(NOC) : 1978 BLJ 381(Pat) ; Gaj Raj Singh v. State, (1985) 1 Crimes 895(Del) . 13 Gaj Raj Singh v. State, (1985) 1 Crimes 895(Del) . 14 Vahula Bhushan v. State of Tamil Nadu, AIR 1989 SC 236. See also Badnayina Bheemanna v. State of A.P., 1996 Cr LJ 3095 (paras 11 and 12) (AP). 15 Mulkhraj v. State, 1969 Cr LJ 94(Punj) ; Pravakar Behara v. State of Orissa, (1984) 58 Cut LT 42 : 1985 Cr LJ 6(NOC) ; Sidha Dehury v. State of Orissa, 1982 Cr LJ 500 : (1981) 52 Cut LT 512; Madkami Baja v. State of Orissa, 1986 Cr LJ 433; Ramachandra Jena v. State of Orissa, (1984) 58 Cut LT 155 : 1985 Cr LJ 64(NOC) ; Madan Naik v. State of Orissa, 1983 Cr LJ 47(NOC) (Ori) ; Nemai Mondal v. State of W.B., AIR 1966 Cal 194; unimpeachable evidence of sole eye-witness, wife of deceased, can form basis of conviction, Kanhaisingh Nayak v. State, 1993 Cr LJ 2812 (para 6) (Ori); S.G. Gundegowda v. State, 1996 Cr LJ 852 (para 21) (Kant); Kartik Malhar v. State of Bihar, 1996 Cr LJ 889 (para 6) (SC) : (1995) 8 JT 425(SC) : 1995 AIR SCW 4540.

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16 Madhabananda Mohapatra v. Rabindranath Misra, AIR 1954 Ori 40. Evidence is weighed and not counted, Barkau v. State of U.P., 1993 Cr LJ 2954 (para 23) (All); Surendra Narain v. State of U.P., AIR 1998 SC 192 : 1998 Cr LJ 359. Quality of evidence matter and not quantity, Poolin Haldar v. State, 1996 Cr LJ 513 (para 25) (Cal). 17 Kedar Behera v. State, 1993 Cr LJ 378 (para 8) (Ori). Non-examination of independent witnesses from vicinity not material, Munshi Prasad v. State of Bihar, 2001 Cr LJ 4708 (para 11) (SC) : AIR 2001 SC 3031. 18 Ramashish Rai v. State of Bihar, 1989 Cr LJ 336(Pat) . Evidence of solitary eye-witness, corroborated by other evidence, inspiring implicit confidence, conviction could be sustained on such evidence, Gopal Mahadeo Tambada v. State of Maharashtra, 1997 Cr LJ 2425(Bom) . Also see Ramesh Bhagwan Manjrekar v. State of Maharashtra, 1997 Cr LJ 796(Bom) . See also Lalya Dharma Khadkya v. State of Maharashtra, 1995 Cr LJ 564 (para 10) (Bom). 19 Ram Vilas v. State of M.P., 1993 Cr LJ 3251 (para 5) (SC). 20 Ganpat Ram v. State of Rajasthan, 1995 Cr LJ 1466 (paras 17, 24 and 25) (Raj). 21 Gaital v. State, 1988 Cr LJ 960(All) . 22 Chandra Sekharan v. State, 1987 Cr LJ 1715(Ker) . 23 Chellammal v. Packiam, 1976 Cr LJ 1666(Mad), following Vadivelu Thevar v. State of Madras, AIR 1957 SC 614 and Darya Singh v. State of Punjab, AIR 1965 SC 328; see also (1985) 1 Ori L. Rev 117 (widow of the deceased); Dhouba Padhan v. State, (1983) 56 Cut LT 251; (mother of the deceased) (note: Section 3 cases under Near Relations); Mangal Singh v. State of Rajasthan, 1985 Cr LJ 602(Raj) ; (15 years old daughter against her father). 24 Barla Ganga Reddy v. State of A.P., 1993 Cr LJ 1998(AP) . 25 Budhu Hurad alias Tamariya v. State, 2004 CrLJ NOC 150(Jhar) : 2004 (1) East CrC 244 : 2004 AIR Jhar HCR 1219. 26 Shanker v. State of Rajasthan, 2004 CrLJ 1608, 1613, (paras 31 to 33) (Raj) : 2004 CrLR (Raj) Raj 938 : 2004 (2) Raj LR 601 : 2004 (2) WLC 269. 27 Sadique Ansari v. State of Bihar, 2006 CrLJ 1592, 1593-94 (paras 7 and 9) (Jhar).

14. ILLUSTRATIVE CASES WHERE EVIDENCE OF SOLE WITNESS WAS NOT RELIED ON The question of corroboration arises only in regard to a witness who is neither wholly reliable nor wholly unreliable in which case the court should be circumspect. 28 Where there are inherent inconsistencies in the evidence of the wife of the deceased, the sole eye-witness in the case, it cannot be considered sufficient to find the accused guilty. 29 Where the solitary witness to a murder who was closely related to the accused claimed to know the accused, but his evidence showed that he was a stranger to the accused, it was held that such evidence cannot be relied and the accused is entitled to the acquittal. 30 If the only witness to prove a charge of murder can modulate his evidence to suit a particular prosecution theory for the deliberate purpose of securing a conviction, no conviction can be based on his testimony. 31 Where the solitary witness remained quiet for about six months without giving information about the incident on the ground that he was threatened by the accused, it was held it is unsafe to base the conviction for murder on such solitary testimony. 32 The testimony of only one eye-witness was held insufficient in a murder case where the occurrence took place in broad day-light and was seen by a large number of persons. 33 Where the sole witness failed to identify an accused in an earlier identification parade, but identified in a subsequent parade, it was held that the conduct of the witness showed that he was unreliable, and so conviction could not be based on the sole testimony of such witness. 34 Where a search under the Arms Act was conducted, it was held that the solitary testimony of the Investigating Officer cannot form the basis of conviction. 35 Where there was evidence that besides the solitary witness, there were 14 or 15 persons who rushed to the scene of occurrence amongst whom there were independent persons not connected with the deceased or the accused, it was held conviction could not be based on the single testimony of an eye-witness. 36 Where the evidence of the sole witness was that the accused was seen by him running away with husking rod (not sharp or semi-

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sharp weapon) and the evidence of the doctor conducting postmortem was that the injury on the head was a cut injury caused by sharp or semi-sharp weapon but not by a blunt weapon, it was held that the solitary testimony of the witness cannot be relied and the accused cannot be convicted. 37 When the sole eye-witness is found not reliable accused has to be acquitted. 38 Where the eye-witness of the assault on the deceased omitted vital details in the F.I.R. relating to the manner of assault, his version was not worthy of credence and it could be said that he was falsely introduced as eye-witness. 39 Where the plea of alibi of the accused was acceptable, he could not be convicted on the lone testimony of the witness particularly when his name was not mentioned in the F.I.R. or during inquest. 40 Where the single eye-witness was the brother of the deceased and the evidence revealed that his presence in the village was highly improbable, it was held that his evidence is not reliable or trustworthy. 41 Where a Criminal Court has to deal with evidence pertaining to the commission of an offence involving a large number of offenders and a large number of victims, it is usual to adopt the test that the conviction could be sustained only if it is supported by two or three or more witnesses who give a consistent account of the incident. 42 In dacoity cases conviction should not be based on identification by a sole witness. 43 28 Dinkar Bandhu Deshmukh v. State of Maharashtra, AIR 1970 Bom 439. 29 Ramji Surjya v. State of Maharashtra, AIR 1983 SC 810 : (1983) 2 SCJ 20 : 1983 Cr LJ 105. 30 State of U.P. v. Satish Chandra, AIR 1986 SC 313. 31 Badri v. State of Rajasthan, AIR 1976 SC 560. 32 Mahadeo v. State of Maharashtra, AIR 1980 SC 102; reversing the decision of Bombay High Court. 33 1957 All WR (HC) 48. 34 Gofur Shiekh v. State, 1984 Cr LJ 559(Cal) (DB). 35 Islamuddin v. State of Delhi, 1975 Cr LJ 841(Del) . 36 Manik Malakar v. State of Assam, 1976 Cr LJ 1921 Gau. 37 Mudhan Paying v. State of Assam, 1982 Cr LJ 241 Gau. 38 Malik Abdul Salem v. State of Orissa, 1985 Cr LJ 1871 Ori. 39 Govind Narain v. State of Rajasthan, 1993 Cr LJ 2598 (para 6) (SC) : AIR 1993 SC 2457. 40 Nallamsetty Yanadaiah v. State of A.P., 1993 Cr LJ 408 (para 7) (SC) : AIR 1993 SC 1175. 41 Balraj Singh v. State of Punjab, 1976 Cr LJ 1471 Punj. 42 Masalti v. State of Uttar Pradesh, AIR 1965 SC 202 : (1965) 1 SCJ 665 : (1965) 1 Cr LJ 226. 43 Wakil Singh v. State of Bihar, AIR 1981 SC 1392; Dhruba Charan Lenka v. State of Orissa, 1984 Cr LJ 769 Ori; Chandra Pal v. State, AIR 1954 All 684.

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CHAPTER X OF THE EXAMINATION OF WITNESSES S. 135. Order of production and examination of witnesses. The order in which witnesses are produced and examined shall be regulated by the law and practice for the time being relating to civil and criminal procedure respectively, and, in the absence of any such law, by the discretion of the Court. 1. PRINCIPLE AND SCOPE

This section states that the order in which the witnesses are to be produced and examined shall be regulated by the rules of law and practice relating to civil and criminal proceedings. It also states that, in the absence of any rules and practice, the court has got the discretion to regulate the order in which the witnesses are to be produced and examined.1 In civil proceedings the order is to be regulated by the provisions of the Civil Procedure Code; and in criminal proceedings, by those of the Criminal Procedure Code. Failing these, the order is to be determined by the discretion of the Court. In practice, however, it is left largely to the option of the party calling witnesses to examine them in any order he chooses. The court is very slow to interfere with the discretion of counsel as to the order in which witnesses should be examined.2 While counsel has discretion, the Court has also the power to direct the order in which witnesses cited by the party shall be examined.3 It was observed that in absence of any law, the order in which witnesses are produced and examined, is to be regulated by the discretion of the court. However, examination of the witness in attendance is to be continued.4 1 For Statement of Objects and Reason, see Gaz. of India, 1868, p. 1574. 1 Gopessur v. Bissessur, 39 Cal 245; Achyutana Pitchaiah Sarma v. Chinna, AIR 1961 AP 420. 2 Per STANLEY. J. in Kedar Nath Ghose v. Bhupendra Nath Bose , (1900) 5 CWN XV. 3 In the goods of Gopessur Dutt, (1911) 16 CWN 265. 4 Kailash Chandra Sharma v. Biraj Kishore Das, AIR 2009 Gau 73 (paras 6 and 7).

2. CIVIL CASES Order XVIII, Rule 1, C.P.C., states that the plaintiff has the right to begin unless the defendant has admitted the facts alleged by the plaintiff and contends that either in point of law or on some additional facts alleged by the defendant, the plaintiff is not entitled to any part of the relief, which he seeks, in which case the defendant has the right to begin. Order XVIII, Rule 2, C.P.C. states that, on the day fixed for hearing of the suit, or on any other day to which the hearing is adjourned, the party having the

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right to begin shall state his case and produce his evidence. Sub-rule (4) to rule 2 was added in the new C.P.C. of 1976, enabling the court to direct or permit any party to examine any witness at any stage, for the reasons to be recorded by the court. Similarly, Rule 3(a) was included in Order XVIII, stating that where a party himself wishes to appear as a witness, he shall so appear before any other witness on his behalf has been examined, unless the court, for reasons to be recorded, permits him to appear as his own witness at a later stage. Order XVIII, Rule 3, C.P.C. says that where there are several issues, the burden of proving some of which lies on the other party, the party beginning may, at his option, either produce his evidence on those issues or reserve it by way of answer to the evidence produced by the other party. It is sometime said that, as the plaintiff is the party who brings the case into court, it is natural that he should be first heard with his complaint; and in one sense of the word, the plaintiff always begins; for without a single exception, the pleadings are opened by him or his counsel, and never by the defendant or his counsel. But, as it is agreed on all hands that the order of proving depends on the burden of proof, if it appears on the statement of the pleadings that the plaintiff has nothing to prove,-that defendant had admitted every fact alleged, and takes on himself to prove something, which will defeat the plaintiff's claim,--he ought to be allowed to begin, as the burden of proof then lies on him. 5 The authorities on the subject present almost a chaos. This much only is certain that, if the onus of proving the issues or any one of the issues however numerous they may be, lies on the plaintiff, he is entitled to begin,6 and it seems that, if the onus of proving all the issues lies on the defendant, and the damages which the plaintiff could legally recover are either nominal or mere matter of computation, here also the defendant may begin. A party need not be the first witness in the suit. 7 Where a plaintiff files a suit on the basis of a sale deed, but the defendant contends that it is a mortgage, as it is for the defendant to prove the same, he will have the right to adduce evidence first. 8 When the plaintiff alleged that a particular document was brought into existence by fraud or misappropriation it is for him to prove the allegation. So the plaintiff has to begin his case. He cannot be allowed till after the evidence of the defendant, to place his evidence as a rebuttal evidence. 9 Where the plaintiff himself closed his evidence, he is not entitled to produce a witness at the stage of final arguments.10 In a case, the husband had sought divorce on the ground of his wife's mental illness. The High Court had directed that she should first give her examination-in-chief on affidavit and then be crossexamined and thereafter she should be referred for medical examination. The Supreme Court opined that the wife had an option to decide in what manner she would oppose the ground of medical illness alleged against her. It was held that she should have been allowed to undergo medical examination, if she so desired, and thereafter give her oral evidence. 11 5 See Order 18 Rr-1-3, C.P.C. 1908. 6 Wood v. Pringle , 1 Moo & R 277; Curtis v. Wheeler, 4 C&P 196. 7 1970 All WR (HC) 236. 8 Nabakumar v. Haridas Singh, AIR 1960 Manipur 11. 9 Rashidunnissa v. Ata Rasool, AIR 1958 All 67. 10 Shantilal v. Mahendra Kumar, 2002 AIHC 2028, 2032 (paras 13 & 14) (Raj). 11 Radhika Gupta v. Darshan Gupta, (2005) 11 SCC 479 (para 6).

3. EXAMINATION ON COMMISSION

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In both civil and criminal proceedings witnesses may be examined on commission, where evidently the same rules will apply respectively.12 Evidence taken on commission is later put on the record of the case.13 Though a witness is examined on commission under Order XXVI, Rule 8, C.P.C. when the witness is proved to be too ill to give his evidence in court, or his absence is for sufficient reason; the evidence so recorded by the commissioner should only be permitted to be used at the trial. No mode of procedure can be more unsatisfactory than that of following the principal defendant to give his evidence before the plaintiff's case has been opened or the evidence of his witnesses has been given.14 12 See Civil Procedure Code, Order. XXVI, Rr. 1-8;Criminal Procedure Code, Ss. 284-288. 13 Kusum Kumari Roy v. Satyaranjan Das, (1903) 30 Cal 999; Man Gobinda Choudhuri v. Shashindra Chandra Chowdhuri, (1907) 35 Cal 28. 14 Satish Chandra v. Satish Kantha, AIR 1923 PC 73; see also Mahim v. Nabha, AIR 1927 Cal 43; Phanindra v. Pramatha, 32 Cal WN 128.

4. EXAMINING THE OPPOSITE PARTY AS A WITNESS In Lal Kunwar v. Chrianji Lal 15 ; LORD ATKINSON condemned such practices and described it as a vicious practice, unworthy of a high toned or reputable system of advocacy. The party has no right to summon the opposite party as a witness.16 Gurbaksh Singh v. Gurdial Singh, 1927 PC 230 at 233 (degrading practice). If a party, however, is permitted to examine the opposite party as his own witness, it has been held that the court should be careful not to allow him to cross-examine his own witness, because unless the witness is declared hostile; the party producing the witness has no right to cross-examine his own witness. 17 "If a party appears as a witness on behalf of the opposing party, the court should, before proceeding to record his statement, question him or his counsel as to whether he does not propose to appear as his own witness. If that party then declares that he does not propose to appear as his own witness, the court should point out to the party producing him that ordinarily speaking the matter should be left as it is and the court be left to draw any adverse inference which may justifiably be drawn from such refusal. If the party, however, insists on examining the opposite party as his own witness the court should not allow him to cross-examine his own witness." 18 The plaintiff led evidence through the power of attorney holder who conveniently denied the genuineness of the plaintiff's signature on certain documents. Defendants therefore sought to summon the plaintiff as their witness so that the said documents could be shown to the plaintiff and in turn the same could be tendered in evidence. The High Court held that such a mode selected by the defendant could not be said to be illegal or unwarranted inasmuch as per law a document unless proved and formally tendered in evidence could not be accepted in proceedings. 19 15 ILR 32 All 104 (PC). 16 Ebrahim Kunju v. Shahabudeen, 1969 Mad LJ 303(Cri) : 1969 Ker LT 170. 17 Puran Singh v. Mathra Das, AIR 1934 Lah 126. 18 FIELD ON EVIDENCE 11th Edn. p. 4765. citing Puran Singh v. Mathra Das, AIR 1934 Lah 126. 19 Pushpaben Champaklal Shah v. Rikhavdev Tirthram Sharma, AIR 2006 Guj 66 (para 4).

5. POWER OF COURT TO ORDER A WITNESS TO BE OUTSIDE COURT

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Neither the Evidence Act nor the Codes of Civil and Criminal Procedure contain any section or rule for ordering witnesses out of court. However, the court has power to order unexamined witnesses out of court at any time during the trial on the application of either party. Under Section 135, the order in which witness are to be produced and examined shall be regulated by the law and practice for the time being relating to the civil and criminal procedure respectively, and, in the absence of any such law, by the discretion of the Court. Since, the court has the power to prescribe the order in which witnesses are to be examined, where a party is also a witness, the court can require him to give evidence before he examines his other witnesses. If he is not willing to do so, the court can order him out of court hall, when his other witnesses are giving evidence. When a party himself is conducting a case without the aid of the counsel, he can examine himself first and then examine his witnesses. It is undoubtedly true that a party to the litigation has got the right to remain in court while the trial of the suit is going on. And it is equally well-established that the court has got inherent power to order any person, who has given evidence, out of the court hall when other witnesses are being examined, until that person is called to give evidence. The court has to consider whether the claim made by one party to exclude the other party from the court is well-founded and also to consider the objections of the other party. 20 Where a witness disobeys the order to be out of the court hall, he is guilty of contempt 21 ; but his evidence cannot be excluded though the weight to be attached to his testimony will be a matter for consideration.22 If the witness is present in court, he should be asked to go out when the evidence of other witnesses is being recorded. If this could not be done, because his presence was not noticed, the court should examine him and record his statement with a note that he was present in court when other witnesses were being examined. But, there is no justification in law for cancellation of his evidence; the court should consider what value should be attached to the testimony of such a witness, who was present when the other witnesses were examined.23 But this practice of excluding the presence of witnesses from the court when other witnesses are being examined need not be rigidly applied in the case of the investigating police officer, though the criminal court has always the power to direct that a witness who is to be examined in the case should not be in court, till he is examined, when the evidence of other witnesses is being recorded. 24 20 Pitchaiah Sarma v. Chinna, AIR 1961 AP 420. See also Dr. Kasi Ayyar v. State of Kerala, AIR 1996 Ker 316 (in a ciminal case); Nathu Singh v. Crown, AIR 1925 Nag 296; Lalmani v. Bejai Ram, AIR 1934 All 840; Subh Karan Singh v. Kedarnath, AIR 1941 All 314. 21 Cobbet v. Hadson , 1 E&B 14. 22 Subh Karan v. Kedarnath, AIR 1941 All 314; relying on Chandler v. Horne, (1842) 2 M & Rob 423. 23 State v. Sohan Singh, 1955 Cr LJ 814 : AIR 1955 MB 78. 24 Tata Tea Ltd. v. State of Kerala, 1984 Ker LJ 402.

6. CRIMINAL PROCEEDINGS In criminal proceedings, the complainant or the prosecutor, as the case may be, has the right to begin and, if necessary, the accused is asked to adduce his evidence in defence. The trial before a Magistrate may be (a) in summons cases (Criminal Procedure Code, Ss. 251-258), or (b) in warrant cases instituted by the Police, S. 238; otherwise than on Police report (Ss. 244-249) or (c) summary (S. 260). Where a trial takes place before a Court of Session, or High Court, the procedure is laid down in Section 226,et seqof the Criminal Procedure Code is followed. Where the evidence on record was sufficient to prove the case beyond doubt, mere non-examination of one or some of the witnesses was held be not fatal.25 In a criminal case the evidence of a witness of the occurrence, not of a formal character, cannot be taken on affidavit and so the cross-examination of such a witness also though in Court can not be

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admissible. The evidence of such a witness on affidavit cannot be taken into consideration and it can simply be inferred that such a witness has not come before the Court to support the prosecution case but on this ground the prosecution theory cannot be thrown away as the Court is under a duty to decide the case on merits on the basis of other evidence available on record. 26 25 Niranjan Shil v. State of Tripura, 1999 Cr LJ 4498 (para 25) (Gau). 26 Moti Lal v. State of U.P., 2004 CrLJ 950, 961 (para 46) (All) : 2003 All LJ 2791 : 2003 (3) All CrR 2767.

7. MATERIAL WITNESS Material witnesses are to be examined unless allegations are made that they will not speak truth. Thus where in a murder case, according to the prosecution story, a villager who came on the murder spot hearing cries of the son of the deceased and helped him in pulling out the weapon of offence from the chest of the deceased and further carried him to his house was not examined in view of the evidence of the son of the deceased stating that the said villager had joined hands with the accused persons and had taken oath not to depose against, failure to examine him would not vitiate the prosecution. 27 The dropping of the witnesses who could have proved the circumstances in a molestation case, cannot be said to be fatal to the prosecution case as their evidence was not necessary to unfold the prosecution case and no adverse inference could be drawn against the prosecution for nonexamination of such a witnesses.28 In a criminal case, an Investigating Officer is a material witness as he is the principal architect and executor of entire investigation. He is a crucial witness for the purpose of establishing that there are omissions and contradictions but more importantly, it is always open for the defence to question the honesty and caliber of the entire process of the investigation. Non-examination of such a witness is fatal to the prosecution and the accused is entitled to be acquitted as the accused has been precluded from an opportunity of being able to establish the infirmities in the prosecution case. 29 27 Bishu Sethi v. State of Orissa, 1994 Cr LJ NOC 246(Ori) . 28 State of Maharashtra v. Satyendra Dayal Khare, 2004 CrLJ 3399, 3406 (para 18, 22, 31) (Bom) : 2004 All MR 2339(Cri) . 29 State v. Peddahanumappa, 2004 CrLJ 2255, 2256, para 3 (Kant) : 2004 AIR Kant HCR 1076.

8. WITNESS NOT EXAMINED EARLIER A witness cannot be faulted for his non-examination earlier and explanation for the same, if any, can be got only from the Investigation Officer.30 30 State v. Santosh Kumar Singh, 2007 CrLJ 964, 986-87 (para 32) (Del).

9. TYPOGRAPHICAL MISTAKES IN DEPOSITION OF WITNESSES The typographical mistakes in the deposition of witnesses and their names in recording of deposition of witnesses which make it difficult for the appellate Courts to understand the evidence, are to be corrected at least at the stage of arguments or before pronouncing the judgments. The Court directed accordingly.31 31 State v. Mohandas S. Gawade, 2007 CrLJ 850, 857 (para 18) (Bom).

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CHAPTER X OF THE EXAMINATION OF WITNESSES S. 136. Judge to decide as to admissibility of evidence. When either party proposes to give evidence of any fact, the Judge may ask the party proposing to give the evidence in what manner the alleged fact, if proved, would be relevant; and the Judge shall admit the evidence if he thinks that the fact, if proved, would be relevant, and not otherwise. If the fact proposed to be proved is one of which evidence is admissible only upon proof of some other fact, such last-mentioned fact must be proved before evidence is given of the fact first mentioned, unless the party undertakes to give proof of such fact, and, the Court is satisfied with such undertaking. If the relevancy of one alleged fact depends upon another alleged fact being first proved, the Judge may, in his discretion, either permit evidence of the first fact to be given before the second fact is proved, or require evidence to be given of the second fact before evidence is given of the first fact. ILLUSTRATIONS 2a)  It is proposed to prove a statement about a relevant fact by a person alleged to be dead, which statement is relevant under Section 32. The fact that the person is dead must be proved by the person proposing to prove the statement, before evidence is given of the statement. 2b)  It is proposed to prove, by a copy, the contents of a document said to be lost. The fact that the original is lost must be proved by the person proposing to produce the copy, before the copy is produced. 2c)  A is accused of receiving stolen property knowing it to have been stolen. It is proposed to prove that he denied the possession of the property. The relevancy of the denial depends on the identity of the property. The Court may, in its discretion, either require the property to be identified before the denial of the possession is proved, or permit the denial of the possession, to be proved before the property is identified. 2d)  It is proposed to prove a fact (A) which is said to have been the cause or effect of a fact in issue. There are several intermediate facts (B, C and D) which must be shown to exist before the fact (A) can be regarded as the cause or effect of the fact in issue. The Court may either permit A to be proved before B, C and D is proved, or may require proof of B, C and D before permitting proof of A.

This section embodies three cardinal rules as to the admissibility of evidence.

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Though proper time for objecting to the admissibility of a document is when it is tendered, mere omission to so object does not constitute an inadmissible document, evidence. Party seeking to put a document in evidence must show under which section it is admissible. Improper admission or rejection of evidence will not by itself form a ground for a new trial or reversal of a decision, if, in view of the other evidence in the case, the decision would be the same even if there had been no such improper admission or rejection.32 Illus. (c) & (d) under this section explain para 3 of this section, under which the court may, in its discretion, allow the first fact to be proved before the second fact and vice versa, when the relevancy of the two facts is interdependent. What are relevant facts are given in Sections 5 to 26 under this Act. Admissibility is the rule and exclusion is the exception. The circumstances under which other rules might operate to exclude the admissibility under the Act have to be taken into consideration only in judging of the value to be attached to the evidence, when admitted.33 When a court entertains a doubt as to the admissibility of a document, it is better to admit than to exclude the document, as the admissibility is a question of law and is determinable by the Court, and its decision is open to appeal.34 However doubtful inadmissible evidence might not to be admitted in a criminal trial. 35 The relevancy would be determined by logic whereas admissibility is governed by the rules of law. What evidence is to be admitted, or not to be admitted, should not be decided under the cover of framing the issues, but has to be determined in accordance with this section as and when the evidence is tendered before the court.36 An objection to the admissibility should be taken when the evidence is tendered, and not before.37 When an objection is raised as to the admissibility, it has to be decided then and there, without reserving the question till the end of the trial. 38 The Supreme Court held that, when no objection was taken as to the admissibility of a document in the trial court, it was not necessary to consider whether the document was admissible under law. 39 There is difference between raising an objection to the proof of a document, and admissibility of a document. Proof can be waived by a party or his counsel; and it does not mean that he has admitted the contents of the document. The mode of proof is only a question of procedure, and once it is waived he cannot subsequently raise any objection.40 In criminal cases the rule of waiver is not applicable. It is the duty of the criminal courts to follow the procedure prescribed by law, and the consent of the accused cannot be invoked against irregularity in procedure. 41The court shall exclude inadmissible evidence though there is no objection by the party in the proceedings. It was held that an erroneous omission to object to the evidence, which was not admissible or relevant under the Act, would not make it admissible. It is the duty of the court to exclude all irrelevant or inadmissible evidence, though no objection was taken by the parties to its admissibility. 42 A judgement based upon evidence not relevant under the Act must be set aside even though the parties consented to its being treated as the sole evidence. 43Under Order XXVI, Rule 17, C.P.C. the commissioner has no power to disallow questions he considers irrelevant. 44 When a question was put to one's own witness, namely whether it was in the public interest to allow the State Transport Unit to operate the routes exclusively, to the total exclusion of private bus operators with a view to obtain his opinion and not to elicit any fact or information, it was held that such question was rightly disallowed by the authority.45 Where evidence is procured by an illegal search, the illegality of the search, does not make the evidence of seizure of articles inadmissible, though the Court may be circumspect and closely scrutinize the evidence of seizure.46 A judge is not only a judge of law but also of fact. He has to form his own estimate of the evidence produced before him, and he should not be haunted by the idea that there was no ruling or precedent to guide him.47 If there is anything in a statement of a witness which is disputed, and the opponent avoids asking questions on that matter in cross-examination, it was held that the evidence in-chief examination must be accepted, unless of course there are inherent improbabilities. 48 Where the names of the witnesses were not mentioned in the first information report, and they were examined by the police not on the day of occurrence but on the next day, it was held that there was no ground for discarding their evidence.49

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The eye-witnesses' account requires a careful independent assessment and evaluation for its credibility by the Court and the same should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts; the credit of the witnesses; their performance in the witness box; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into scales for a cumulative evaluation. 50 Admitting written statements of witnesses not giving oral evidence through fear.--In a trial for assault occasioning actual bodily harm and possession of an offensive weapon, the judge considered an application that three important witnesses should have their evidence read pursuant to Section 116(2)(e) of the [English] Criminal Justice Act, 2003 which provided that in criminal proceedings a statement not made in oral evidence in the proceedings was admissible as evidence of any particular matter stated if 'through fear the relevant person does not give.... oral evidence in the proceedings ... and the Court gives leave for the statement to be given in evidence'. The witnesses had made statements to the effect that they were scared and did not wish to give evidence in Court. The judge allowed the application and convicted the accused. The accused appealed against her conviction contending that there was insufficient evidence of 'fear' for the satisfaction of the Court to act under Section 116(2)(e) and no attempts were made to see whether the fears of the witnesses could be allayed by giving evidence through video link. It was held that 'fear' was to be widely construed under Section 116(3) of the Act and, although judges should be astute not to skew a fair trial by a too ready acceptance of assertions of fear since it was all too easy for witnesses to avoid the inconvenience and anxiety of trial by saying that they did not want to come, in the instant case there had been ample evidence to justify the course which the judge had taken. 51 32 Dwijesh Chandra Ray Chaudhuri v. Naresh Chandra Gupta, (1946) 1 Cal 149. 33 R. v. Mona Puna, ILR 16 Bom 661, 668. 34 Collector of Gorakhpur v. Palakdhari , ILR 12 All 1, 26 (FB); Kali Kishore v. Bhushan , ILR 18 Cal 201; Madhavrao v. Deonak , ILR 21 Bom 695. 35 Laijam Singh v. R., AIR 1925 All 405. 36 Dandi Swamy v. Srijib, 48 Cal WN 635. 37 R v. Patel, (1951) 2 All ER 29; R. v. Hammond, (1941) 3 All ER 318; Gopal Das v. Sri Takurji, AIR 1943 PC 83; Bhagwan Dass v. Khemchand, AIR 1973 P&H 477. 38 Srirama v. Lakshmidevamma, AIR 1957 AP 60; Devasikhamani v. Andamuthu, (1955) 1 MLJ 457; Jadu Rai v. Bhubataran Nundy, (1889) 17 Cal 173; Ramjibun v. Oghore, (1897) 25 Cal 401. 39 Purushothama v. Perumal, AIR 1972 SC 608; following the decision in Bhagat v. Khetu, AIR 1929 PC 110. 40 Jainab Bibi v. Haiderally Saheb, ILR 43 Mad 609(FB) ; Ayyavar v. Secretary of State, AIR 1942 mad 528.. 41 Deputy Legal Rememberancer v. Upendra, 12 Cal WN 140; Kottam v. Umar, ILR 46 Mad 117; See commentary under Section 58. 42 Narhari v. Ambabai, ILR 44 Bom 192; Miller v. Madho Das, (1890) 19 All 192 PC; Nanak Chand v. Mian Md., AIR 1936 lah 114; Dwijen v. Naresh, AIR 1845 Cal 492; Prakasarayanim v. Venkata , ILR 38 Mad 160. 43 Ponnuswami v. Singaram, ILR 41 Mad 731. 44 Ramkishna Dalmia v. Firoze Chand, AIR 1960 Punj 430. 45 Rajbahadur Lal v. State of U.P., AIR 1972 All 308. 46 State v. Satyanarayan Mallik, (1965) 2 Cr LJ 112 : 1965 Ori 136; following Radhakishan v. State of U.P., AIR 1963 SC 822; Kochan Velayudham v. State of Kerala, 1961 Ker 8(FB) . See also the commentary under Section 5 regarding objection to proof and admissibility, waiver of proof and of admissibility etc. 47 Ramdeo v. State of Rajasthan, 1964 Ra LW 264.

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48 Jayalakshmi Devamma v. Janardhan Reddy, AIR 1959 AP 272. 49 In Re, Ratna Reddy,AIR 1963 AP 252. 50 Ramakant Rai v. Madan Rai, (2003) 12 SCC 395, 404 (para 22) : AIR 2004 SC 77 : 2004 CrLJ 36. 51 R. v. Davies, [2007] 2 All ER 1070.

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CHAPTER X OF THE EXAMINATION OF WITNESSES S. 137. Examination-in-chief. The examination of a witness by the party who calls him shall be called his examination-inchief. Cross-examination. The examination of a witness by the adverse party shall be called his cross-examination. Re-examination. The examination of a witness, subsequent to the cross-examination by the party who called him, shall be called his re-examination.

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Ratanlal & Dhirajlal: Law of Evidence, Updated 23rd Edition/THE INDIAN EVIDENCE ACT (ACT 1 OF 1872)/PART III PRODUCTION AND EFFECT OF EVIDENCE/CHAPTER X OF THE EXAMINATION OF WITNESSES/S. 138.

CHAPTER X OF THE EXAMINATION OF WITNESSES S. 138. Order of examination. Witnesses shall be first examined-in-chief, then (if the adverse party so desires) crossexamined, then (if the party calling him so desires) re-examined. The examination and cross-examination must relate to relevant facts, but the crossexamination need not be confined to the facts to which the witness testified on his examination-in-chief. Direction of re- examination. The re-examination shall be directed to the explanation of matters referred to in crossexamination; and, if new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross-examine upon that matter. 1. GENERAL

The examination of witnesses is viva voce (Order XVIII, R. 4). It is always in the form of questions and answers. The deposition is usually taken down in the form of a narrative out of the answers (Order XVIII, R. 5). Where a question is objected to and yet allowed by the Court to be put, the question and its answer are taken down verbatim (Order XVIII, R. 10). At the end of the deposition, it is read out to the witness and signed by the Presiding Officer (Order XVII, R. 5). The viva voce examination consists generally of three stages: first of all, the witness is examined by the party who calls him; this is called examination-in-chief (S. 137). He is next examined by the adverse party; this is called cross-examination (S. 137). Finally he is examined again by the party who called him; this is called re-examination (S. 137). Section 246 of the Criminal Procedure Code, 1973 giving the accused a right in a warrant case to cross-examine the witnesses for the prosecution after a charge has been framed, is an exception to the general rule. In the exercise of the inherent power of the Court, the Magistrate in an inquiry under Chapter XIX of the Code of Criminal Procedure may allow the accused to reserve cross-examination for a future occasion in the special circumstances of a case. 52 Section 138 states that a witness must first be examined in-chief; then the opposite party crossexamines him and, if the party calling him so desires, may re-examine him. It also states that the examination and cross-examination must relate to relevant facts only. But, in the cross-examination, the opposite party has a right to put other questions and need not be confined to the facts stated by the witness in the examination-in-chief. The third paragraph in Section 138 states that re-examination should be confined only to explain matters referred to in the cross-examination. If any new matter is brought out during the re-examination then, with the permission of the court, the opposite party may further cross-examine the witness. Section 138 deals only with the order in which the proceedings of the court are to be conducted. 53

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Dealing with Section 137 and 154 of the Evidence Act, the Supreme Court, in Dahyabhai v. State of Gujarat 54, observed: " Section 137 gives only the three stages in the examination of a witness, namely, examination-in-chief, cross-examination and re-examination. This is a routine sequence in the examination of a witness. This has no relevance to the question when a party calling a witness can be permitted to put to him questions under Section 154 of the Evidence Act which confers a discretionary power on the court to permit a person who calls a witness to put any question to him which might be put in cross-examination by the adverse party. Where a prosecution witness after his examination-inchief was cross-examined by the prosecution and thereafter cross-examined by the accused and then re-examined by the prosecution, such procedure as followed by the Court was held to be in accordance with law and the purported defect was not of such a nature as could cause any prejudice to the accused.55 The examination of a witness means, as laid down in Section 137, his examination-in-chief and his cross-examination. No examination of a witness is complete if the adverse party is illegally refused permission to cross-examine him, or the party calling him is refused permission to re-examine him. Section 138 also regulates the order in which a witness can be examined in-chief, cross-examined and re-examined. This is because the rights of the parties to examine in-chief, cross-examine, and reexamine a witness accrue in a certain order and a provision conferring the rights must, at the same time, regulate the order in which they are to be exercised. 56 The examination of the witness has to be done in accordance with Section 137, unless the statute otherwise provides. Placing carbon copies of testimony of a witness recorded in another case is no examination of the witness.57Where the examination of the witnesses by the judicial authorities in foreign countries was not conducted in the order provided under 138 of the Evidence Act and most of the witnesses were subjected to in masse and detailed examination by putting leading questions in examination-in-chief itself and several witnesses had confirmed their depositions and exhibited certain documents even after the cross-examination of the witnesses was complete, such a course was held to be impermissible under Indian law. It was contradictory to the very basic principles of the criminal jurisprudence in India.58 Where the statement of the witness was recorded by the National Human Rights Commission in the presence of its Chairman, who was a retired Chief Justice of the Supreme Court, and several members which included a retired Judge of the Supreme Court and the witness alleged that it was not properly recorded or that somebody else's statement was recorded and the witness was asked to put her signature, it was held that the same was not tenable and such a plea should not have been raised as it reflected on the credibility of the functionaries of the body like the NHRC. 59 The provisions of Section 137 and 138 are applicable to proceedings under Section 145,Cr. P.C. in the absence of any provision to the contrary.60 52 G.V. Raman v. Emperor, (1929) 57 Cal 44. 53 R. v. Mathews, AIR 1929 Cal 822. 54 AIR 1964 SC 1563. 55 Jugroo v. State of M.P., 2002 CrLJ 1050, 1054 (para 9) (MP) : 2002 (2) MPLJ 267 : 2002 (1) MPHT 458 : 2002 CrLR (SC&MP) 143. 56 Banwarilal v. State, AIR 1956 All 385; Sanatan Daw v. Dasarathi Tah, AIR 1959 Cal 677. 57 Mohinder Singh v. Judicial Magistrateist Class Ludhiana, (1976) 78 Punj LR 904. 58 Mahender Singh Dhaiya v. State (CBI), 2003 CrLJ 1908, 1931 (para 56) (Del) : 2003 (102) Del LT 592 : 2003 (66) Del RJ 616. 59 Zahira Habibullah Sheikh (5) v. State of Gujarat, AIR 2006 SC 1367, 1376 (para 13). 60 Dwarka Dass v. State of J&K, 1979 Cr LJ 550(J&K) .

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2. EXAMINATION-IN-CHIEF This will ordinarily be in the form of a connected narrative, brought out by questions put to the witness by the party calling him. It must relate to relevant facts (S. 138). No leading questions can be asked (S. 142). "Unless evidence of reputation be admissible, witnesses, must, in general merely speak to facts within their own knowledge, and they will not be permitted...to express their own belief or opinion...Though a witness, in general, must depose to such facts only as are within his own knowledge, the law does not require him to speak with such expression of certainty as to exclude all doubt. For, whatever may be the nature of the subject, if the witness has any personal recollection of the fact under investigation, he may state what he remembers concerning it, and leave the jury to judge the weight of his testimony. If the impression on his mind be so slight as to justify the belief that it may have been derived from others, or may be some unwarrantable deduction of his own dull understanding or lively imagination, it will be rejected."61 On some particular subjects, positive and direct testimony may often be unattainable, and, in such cases, a witness is allowed to testify to his belief or opinion, or even to draw inferences respecting the fact in question from other facts, provided these last facts be within his personal knowledge. 62 This mode of examination, however, chiefly prevails on questions of science or trade, where, from the difficulty, and occasional impossibility, of obtaining more direct and positive evidence, persons of skill, sometimes called experts, are allowed, not only to testify to facts, but to give their opinions in evidence.63 "On the other hand...the opinions of skilled witnesses cannot be received when the inquiry relates to a subject which does not require any peculiar habits or course of study to qualify a man to understand it. Thus, evidence is inadmissible to prove that one name, or one trade mark, so nearly resembles another as to be calculated to deceive, or that the make-up of one tin of coffee is so like another as to be calculated to deceive purchasers. Witnesses are not permitted to state their views on matters of moral or legal obligation, or on the manner in which other persons would probably have been influenced had the parties act ed in one way rather than another...To put it briefly, a witness may not, on other than scientific subjects, be asked to state his opinion upon a question of fact which is the very issue for the jury, as, for instance, whether a driver is careful; a road dangerous; or an assault or homicide justifiable. Nor may be asked whether a clause in a contract restricting trade is reasonable or unreasonable, for this is a question for the Judge." 64 "The opinions of scientific witness are admissible in evidence, not only where they rest on the personal observation of the witness himself, and on facts within his own knowledge, but even where they are merely founded on the case as proved by other witnesses at the trial. But here the witness cannot in strictness be asked his opinion respecting the very point which the jury are to determine." 65 It is the duty of counsel to bring out clearly and in proper chronological order every relevant fact in support of his client's case to which the witness can depose. This task is more difficult than may at first sight appear. The timid witness must be encouraged; the talkative witness repressed; the witness who is too strong a partisan must be kept in check. And yet counsel must not suggest to the witness what he is to say. An honest witness, however, should be left to tell his tale in his own way with as little interruption from counsel as possible.66 However, the statements made in examination-in-chief, lose much of their credibility and weight unless they are put into the crucible of cross-examination and emerge unscathed from the test. All the witnesses named in the complaint need not be examined. The complainant may examine the witnesses he chooses to examine.67 Where the accused had made confession to the Judicial Magistrate and the witnesses did not turn hostile it was held that the trial Court (here Sessions Judge) should have avoided examining the Judicial Magistrate. 68 Where the witnesses took a stand in the cross-examination opposite to what they had stated in the examination-in-chief and the prosecution failed to cross-examine them with the leave of the Court under Section 154 of the Evidence Act to show that the statements made in their cross-examination

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should not be relied upon, it could not be said that the statements made by them in the examinationin-chief should be preferred and not those made in their cross-examination. 69 61 TAYLOR, 12th Edn., Ss. 1414-15, pp. 898-99. 62 Ibid., S. 1416, p. 899. 63 Ibid., S. 1417, p. 900. 64 Ibid., S. 1419, pp. 902, 903. 65 TAYLOR, 12th Edn., S. 1421, p. 904. 66 POWELL, 10th Edn., p. 458. 67 Sk. Siraj v. State of Orissa, 1994 Cr LJ 2410 (para 3) (Ori). See also Bhajan Singh v. State of H.P., 2008 CrLJ 4702, 4706 (paras 13 and 14) (HP). 68 Srikanth v. State, 2006 CrLJ 4126, 4129-30 (para 23) (Mad). 69 Damber Bahadur Chettri v. State of Sikkim, 2005 CrLJ 808, 815 (para 12) (Sikk).

3. CROSS-EXAMINATION The main object of cross-examination is to find out the truth and detection of falsehood in human testimony. It is designed either to destroy or weaken the force of the evidence of a witness who has already given evidence in person or to elicit something in favour of the party which he has not stated or to discredit him by showing from his past history and present demeanour that he is unworthy of credit. It is the most efficacious test to discover the truth. It exposes bias, detects falsehood and shows mental and moral condition of the witnesses. It also exposes whether a witness is act uated by proper motive or by enmity towards his adversaries. Sometimes cross-examination assumes unnecessary length, then the Court has power to control it. The Court must also ensure that the crossexamination is not made a means of harassment or causing humiliation to the victim of crime. 70 "The exercise of this right cross-examination is justly regarded as one of the most efficacious tests which the law has devised for the discovery of truth. By means of it, the situation of the witness with respect to the parties and to the subject of litigation, his interest, his motives, his inclination and prejudices, his character, his means of obtaining a correct and certain knowledge of the facts to which he bears testimony, the manner in which he has used those means, his powers of discernment, memory, and description, are all fully investigated, ascertained, and submitted to the consideration of the jury, who have an opportunity of observing his demeanour, and of determining the just value of his testimony. It is not easy for a witness, subjected to this test, to impose on a Court or jury, for however artful the fabrication of falsehood may be, it cannot embrace all the circumstances to which crossexamination may be extended."71 The right of cross-examination is a statutory right which vests in a party to the proceedings. There may be circumstances where one of the parties himself is being examined as a witness, as is seen in this case. Then a question will arise as to what are the contentions of the parties to the main dispute involved in the case, in order to find out the interest of the parties as to whether it is adverse to the party who is examined in-chief or not. In such context pleadings of the parties can be made use to find out the adversity between the witness and other parties. But another question also may arise. Apart from the pleadings there may be stages during the trial that a party may become adverse to the interest of the other. Even a witness in his answer may speak adversely to a party who was always sailing with the party, going by the pleadings, is liable to be cross-examined. The scheme of the Evidence Act sufficiently amplifies this principle. A right to cross-examine a witness even can arise when a witness speaks against one's interest who calls him. The provisions of the Evidence Act to declare a witness hostile i.e. Section 154 will clearly signify the intention of the Legislature that whenever a party pleads or whenever a party speaks against the interest of another party, the party against whom he speaks will get an opportunity to cross-examine him. Even the tone and tenor of the

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deposition of the witness sometimes may decide the right of the party to cross-examine a witness. It is a right given to a party to a legal proceedings in consonance with the principles of natural justice and cannot be decided merely on pleadings.72The prosecution can contradict a witness only in the manner provided by Section 145 of the Evidence Act by declaring itself as an adverse party and that can be done only when the prosecution disowns his own witness and for that it has to declare the witness hostile. Section 145 comes into effect only when the examination-in-chief is closed. The right to crossexamine his own witness can be given to the prosecution only at that stage and not prior. 73 The objects of cross-examination are to impeach the accuracy, credibility, and general value of the evidence given in-chief; to shift the facts already stated by the witness, to detect and expose discrepancies, or to elicit suppressed facts which will support the case of the cross-examining party. 74 PHIPSON ON EVIDENCE (15th Ed. (2000), para 11-17, page 249) its states: "The object of crossexamination is two fold--to weaken, qualify, or destroy the case of the opponent; and to establish the party's own case by means of his opponent's witnesses." In HALSBURY (4th Ed., Vol. 17, para 278, page: 194) it is stated: "Cross-examination is directed to:-(1) The credibility of the witness: (2) The facts to which he had deposed in-chief, including the crossexaminer's version thereof; and (3) The facts which the witness had not deposed but to which the cross-examiner thinks he is able to depose." The right of cross-examination not only is referable to Section 138 but is one of the principles of natural justice that evidence may not be read against a party until the same has not been subjected to cross-examination, or at least an opportunity has not been given for cross-examination. Section 138 impliedly lays down that the statement of a witness would be read as evidence against a party only if it had been tested on the anvil of cross-examination or opportunity was afforded for the purpose. 75 The Privy Council, observed: "Cross-examination is one of the most important processes for the elucidation of the facts of a case."76The provision for cross-examination is not merely a technical rule of evidence; it is a rule of essential justice. It serves to prevent surprise at the trial and miscarriage of justice, because it gives notice to the other side of the act ual case that is going to be made when the turn of the party, on whose behalf the cross-examination is being made, comes to give and lead evidence by producing witnesses.77 The party must be given a fair chance to cross-examine the witness. Here the tenant was allowed to cross-examine the original landlady, who was very old, provided he made suitable arrangement for conveyance. 78 Failure to give an opportunity to crossexamine a witness would amount to an illegal assumption of jurisdiction not vested in the court, besides being an error of procedure in the course of the trial. Such evidence must be excluded from consideration.79 No evidence affecting a party is admissible against that party unless the latter has had an opportunity of testing its truthfulness by cross-examination. 80 The testimony of a witness is not legal evidence unless it is subject to cross-examination; and where no opportunity has been given to the appellant's counsel to test the veracity of the principal prosecution witness or where owing to the refractory attitude of the witness, the Court is constrained to terminate all of a sudden and prematurely the cross-examination of the witness, the evidence of such a witness is not legal testimony and cannot be the basis of a judicial pronouncement.81 If a witness has been interrogated during the course of investigation and if his evidence is material in judging the innocence or guilt of the accused, the accused is entitled to examine him as a defence witness, even though the prosecution decides to drop him or not to examine him as a prosecution witness. Such an opportunity cannot be denied by giving a lame excuse of inability to summon the said witness.82 In absence of any material on record showing intentional non-cross-examination by the advocate of the party inspite of five times appearance of the witness in Court it was held to be proper to allow an application for cross-examination of the witness. 83 Where the cross-examination of a witness before a committing Magistrate was deferred to the next date as the Court's time was over at the conclusion of the examination-in-chief of the witness but the witness breathed his last before the date fixed in the case and could not be cross-examined, it was held that it could not be said that the accused was given the opportunity to cross-examine the witness and had failed to avail of the opportunity, therefore the statement of such a witness could not be received in evidence at the trial.84 It is the duty of the court to frame issues in a suit. Where the defendant's counsel fails to take part while framing the issues, the right to cross-examine cannot be denied on the ground of his failure to take part in framing the issues. 85 Under Section 540,(old) Cr. P.C.

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(nowSection 313), the court has discretion to call any witness. When the court calls a witness, both parties will have the right to cross-examine the witness.86 In the proceedings under Section 145,Cr. P.C., when the witness was allowed to prove documents, the opposite party is entitled to crossexamine the witness, as to relevant matters, even if they were not covered in the examination-inchief.87 Accused has a right to cross-examine prosecution witnesses before any charge is framed in warrant cases not instituted on police report.88 A person cannot be subjected to cross-examination unless he has been examined-in-chief; 89 and where a witness did not appear for cross-examination after getting himself examined-in-chief, such non-appearance of the witness for cross-examination would lead to an adverse inference against the trustworthiness of his statement made in his examination-in-chief. 90 Where the examination-in-chief of the plaintiff's witnesses were recorded before setting aside of order to proceed ex parte and those witnesses were not produced for cross-examination after setting aside of order to proceed ex parte and evidence was closed by the plaintiff without producing his those witnesses for cross-examination, the evidence of the such witnesses recorded in examination-in-chief were held to be inadmissible. 91 In a case, the accused persons were being tried for having narcotic drugs in possession. They prayed for deferring the cross-examination of the official witness till recording of examination-in-chief of all the witnesses. The court held that the same could not be allowed as it will cause delay in disposal of the matter and inconvenience to witnesses.92 70 Govind v. State of M.P., 2005 CrLJ 1244, 1256 (para 27) (MP) : 2005 (1) MPLJ 549. 71 TAYLOR, 12th Edn., S. 1428, p. 910. 72 Shrikant R. Shirdokar v. Xabirabi Shaik Kadar, 1997 AIHC 1363 (para 3) (Bom), relying on Des Raj Chopra v. Puran Maol, AIR 1975 Del 109. 73 Central Bureau of Investigation, Lucknow v. Arun Kumar Kaushik, 2006 CrLJ 2947, 2950-51 (para 12) (All). 74 POWELL, 10th Edn., p. 463. 75 Dwaraka Dass v. State of J&K, 1979 Cr LJ 550(j&K) . 76 Yassiliades v. Yassiliades, AIR 1945 PC 38. See also Babu v. Babu, (2003) 7 SCC 37 (paras 16 and 17) : (2003) 6 JT 615. 77 A.E.G. Carapiet v. Derderian, AIR 1961 Cal 359; following the observations of LORD HERSCHELL in Browne v. Dunn , (1894) 6 R 67, and also the observations of LORD HALSBURY in the same case, at P. 76. 78 Pyarelal Sakseria v. Devishankar Parashar, AIR 1994 MP 115 (paras 9 and 11). 79 Neminath Appayya v. Jamboorao, AIR 1966 Mys 154; Onkar Bhikaram v. Balmukund Javerchand, AIR 1957 MB 135; Chandra Mani Naik v. Binapani Dei, AIR 1968 Ori 17. 80 Manganlal v. King-Emperor, ILR (1946) Nag 126 : AIR 1946 Nag 173. 81 Ram Kumar v. King-Emperor, (1936) 12 Luck 553. 82 Ikrar Ahmad v. State of Madhya Pradesh, 1999 Cr LJ 429, at p. 430 (MP). 83 Fateh Singh v. Labour Court, 2002 AIHC NOC 11(Raj) . 84 State v. Huzura Singh, ILR (1952) Patiala 48. Contra : Nandram Khemraj v. State of M.P., 1995 Cr LJ 1270 (paras 16 and 17) (MP). 85 Haridas Mundhra v. Indian Cable Co., Ltd., AIR 1965 Cal 369. 86 Mohammad Shafi v. State, AIR 1953 All 667. 87 Chandra Mani Naik v. Binapani Dei, AIR 1968 Ori 17. 88 State of Sikkim v. Pemba Sherpa, 1981 Cr LJ 856(SK) (DB).

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89 Grandhi Narayanchetty v. Vissannagri Bala Narasimhulu Chetty, 2003 AIHC 25, 30 (para 41) (AP). See also Sharadamma v. Kenchamma, 2006 AIHC 3542, 3543 (para 9) (Kant); Sharadamma v. Kenchamma, AIR 2007 Kant 17, 18 (para 9). 90 Paritosh Ghosh v. Ashim Kumar Gupta, 2003 AIHC 291, 295 (para 9) (Cal). 91 Ballabhdas Rathi v. Gopal Krishna Goushala, 2005 AIHC 2539, 2540 (para 5) (MP). 92 Shamoon Ahmad Sayed v. Intelligence Officer, Narcotic Control Bureau, South Zonal Unit, Chennai, 2009 CrLJ 1215, 1219-20 (paras 11 and 12) (Kant), relying on Matilal Chakravarty v. The King, 1950 (51) CrLJ 115 : AIR 1949 Cal 586; Lalu Alam v. State of W.B., 2003 (1) Crimes 625 and Jayakar v. State of Karnataka, ILR 1996 Kar 2783.

4. WHO CAN CROSS-EXAMINE ? The party who has a right to take part in any enquiry or trial, can cross-examine the witness or witnesses.93 Where one of the Managing Directors of a firm had borrowed money on behalf of the firm in that capacity without the consent of the other Managing Director, the later, being an adverse party, had the right to cross-examine the former.1 Where land was acquired at the cost of the local authority/ company, such authority or company paying the compensation is entitled to cross-examine the Ameen (the witness of the State) or other witnesses examined to determine the compensation. 2 The parties arrayed as defendants taking a contradictory stand on a relevant and material issue can be cross-examined by the co-defendants.3 If some facts are to be proved by the landlord, indisputably the occupant/tenant should get an opportunity to cross-examine. The witness who intends to prove the said facts has the right to cross-examine the witness. This right may not be provided under the statute, but it being a part of the principle of natural justice, should be held to be indefeasible right. 4 93 Kishori Lal v. State of Rajasthan, 1999 Cr LJ 840 (para 9) (Raj). 1 B.S. Balaji v. T. Govindaraju, 1996 AIHC 2484 (para 8) (Kant). 2 Greater Noida Industrial Development Authority v. State of U.P. , AIR 2007 (NOC) (All) : 2007 (2) ALJ 640. See also Vidarbha Irrigation Development Corporation v. 3rd Ad hoc Additional District Judge, Nagpur, AIR 2008 (NOC) 1326(Bom), following Shrikant R. Shirdokar v. Xabirabi Shaik Kadar, 1997 AIHC 1363, 1364-65 (para 3) (Bom). 3 Saroj Bala v. Dhanpati Devi, AIR 2007 Del 105, 106 (para 5). 4 New India Assurance Company Ltd. v. Nusli Neville Wadia, (2008) 3 SCC 279, 295 (para 45), relying on K.L. Tripathi v. SBI, (1984) 1 SCC 43 : 1984 SCC (L&S) 62 : AIR 1984 SC 273; Lakshman Exports Ltd. v. CCE, (2005) 10 SCC 634 and Bareilly Electricity Supply Co. Ltd. v. Workmen, (1971) 2 SCC 617 : (1972) 1 SCR 241.

5. RIGHT TO BEGIN CROSS-EXAMINATION In a partition suit, the claim was not restricted to partition and separate possession but prayer made therein was also for setting aside of the compromise decree passed in earlier litigation. The plaintiff's case was that the decree passed in earlier litigation was collusive and bad on account of impleading the plaintiff. One of defendants supported the claim raised by the plaintiff. It was held that the defendant who supported the plaintiff's case would begin the cross-examination of the witness of the plaintiff before the conduct of the cross-examination on behalf of the other defendants. 5 5 Jyotirmoy Karmakar v. State of W.B., AIR 2009 (NOC) 2097(Cal) .

6. NO OPPORTUNITY TO CROSS-EXAMINE--EFFECT From the fact that it was not recorded in the depositions of the witnesses that there was no crossexamination, it can be said that, in fact, there was no cross-examination, or that the request of the party to cross-examine was disallowed.6

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If the pleaders do not turn up in court at the right moment to cross-examine the opposite party's witnesses, it cannot be made a ground of attack against the orders passed as the court is not bound to wait for any length of time and waste public time waiting for the pleader's arrival. 7 Where the proceedings were conducted in the presence of the counsel for the parties and/or parties themselves and, if the party did not suggest any question to be put to the witness by the Inquiry Officer, it is not open for him or her to say that opportunity for "cross-examination" was not given. 8 When the accused was denied the opportunity to cross-examine the witness; the conviction based on the statement of the witness cannot be upheld; and such evidence must be excluded from consideration.9 Refusal of permission to cross-examine the prosecution witness is not proper and against all principles of justice.10 Summary procedure cannot take away the right to cross-examine. 11 The direction by the Land Tribunal to the petitioner-tenants to cross-examine the respondent-owners on their written statement and that too without administering them oath, was a procedure prima facie illegal.12 Denial to permit the accused to cross-examine the witness is contrary to the law as laid down by the Supreme Court in Mohanlal Shamji Soni v. Union of India ,13 as, if the opportunity is granted, the truth is revealed; but if the Court has permitted the accused to lead the evidence, mere denial or crossexamining the man by the accused cannot per se be a vulnerable factor. In the instant case, the three police officials were not required to speak about the case in general. They were required to state about certain documents in terms of Section 174 of CrPC . It is of course true that, when the permission had been granted to cross-examine, the accused could have produced some materials to support his case. The Supreme Court refrained from going into details because the trial Court itself had permitted the accused to lead rebuttal evidence. 14 6 Union of India v. T.R. Verma, AIR 1957 SC 882. 7 Dwarkabai v. Ukharda Ganpat, AIR 1954 Nag 252. 8 Zahira Habibullah Sheikh (5) v. State of Gujarat, AIR 2006 SC 1367, 1376 (para 13). 9 Nami Nath Appayya v. Jamboorao, AIR 1966 Mys 154. 10 Janakdhari Sharma v. Jhapsi Singh, (1958) 37 Pat 1006. 11 Kalpanaben M. Shah v. Navinchandra Jeevanlal Acharya, AIR 1995 Guj 176 (para 2). 12 Yallappa v. Murahari, 1998 AIHC 1652 (paras 7 and 8) (Kant). 13 1991 Supp (1) SCC 271. 14 Shakila Abdul Gafar Khan v. Pasant Raghunath Dhoble, (2003) 7 SCC 749, para 28 : AIR 2003 SC 4567 : 2003 CrLJ 4548.

7. NO OPPORTUNITY TO CROSS-EXAMINE DUE TO THE SOLE WITNESS'S (COMPLAINANT'S) DEATH In a criminal proceeding, an English trial Court admitted the statement of the complainant, the sole witness of the indecent assault on her by a consultant physician, the accused, without complainant/ witness having been cross-examined by the accused as she had died before trial and convicted him. The accused appealed contending that the admission of the said statement with no possibility of cross-examination was a breach of his right to a fair trial. The Court of Appeal upheld the conviction holding that in the circumstances of the case there was no breach of the right to fair trial. 15 15 R. v. Al-Khawaja, [2006] 1 All ER 543 (paras 25-28 and 31).

8. RANGE OF CROSS-EXAMINATION

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The range of cross-examination is unlimited, the only circumscribing limits being that it must 'relate to relevant facts' (S. 138). By Ss. 146 to 150 the Legislature has tried to give very wide powers to the cross-examiner to help him in finding out the truth in oral depositions laid out before the Court. But the Legislature protects the witness (i) from consequences which he might incur from speaking the truth; and (ii) from needless questions, for the cross-examiner has to see that the imputations he makes against the witness are well-founded. In the course of cross-examination, a witness may be asked questions: 2)  to test his veracity; 2)  to discover who he is and what his position in life is; 2)  to shake his credit by injuring his character, although his answer might criminate him or expose him to penalty or forfeiture (S. 146). The cross-examiner is treading on safe ground so far as (1) and (2) are concerned. As regards (3), complex set of considerations present themselves. If the questions refer to a relevant matter the provisions of S. 132 are applicable (S. 147). If, however, the questions refer to an irrelevant matter, they are proper-if the truth or imputation conveyed by them would seriously affect the opinion of the Court as to the credibility of the witness.

They are improper-3)  if the imputation conveyed by them relates to matters so remote in time or of such a character that they would not affect the credibility of the witness; 3)  if there is a great disproportion between the importance of the imputation made against the witness's character and the importance of his evidence (S. 148). Before such questions are asked, the person putting them must have reasonable grounds for thinking that the imputation was well-founded (S. 149). If any lawyer asks such questions without reasonable grounds, the Court may report the case to the High Court or other authority to which he is subject (S. 150). All questions or inquiries which are indecent or scandalous, unless they relate to facts in issue, are to be avoided (S. 151); so also all questions which are calculated to insult or annoy or couched in a needlessly offensive form (S. 152). Cross-examination is in almost all cases undertaken by the adverse party; but the Court may permit a party to cross-examine his own witness if he proves to be a hostile witness (S. 154). In criminal cases (warrant cases) tried by Magistrates, the accused person can, after the charge has been framed and he has given his plea, re-call and cross-examine any witness for the prosecution [Criminal Procedure Code, S. 246(5)]. In cross-examination, a party can ask questions on every issue to establish his case. There is no rule of procedure which deprives a party of his right to cross-examine a witness in respect of the whole case, on the ground that evidence with regard to some issues has already been tendered. The questions, however, must relate to relevant facts. 16 This section mandates that cross-examination need not be confined to the facts spoken to during the chief-examination, the party has liberty to elicit anything from the said witness as long as it relates to the relevant facts. 17 General and vague questions shall not be put in the cross-examination as they would serve no purpose. 18 Suggestions in the cross-examination can be put to indicate the case put forward by the party on whose behalf the cross-examination is being conducted. But suggestions cannot be a substitute for evidence, if it is repudiated by the witness to whom it is made.19 It is open to any cross-examiner to put questions with a view to extract the real truth in regard to the accusation levelled against the accused person. While

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putting questions, the cross-examiner should keep certain standard of decency and decorum. Without any proof or cogent reason the cross-examiner would not be justified in putting a suggestion which is not relevant, like a question to the daughter of the deceased that the deceased was having illicit intimacy with one person.20 Irrelevant topics sometimes pursued at great length, and persistence shown in going over the same ground again and again in the hope of making the witnesses give discrepant statements must not be endured or permitted. Exercise of great vigilance and control over the court proceedings by judges and magistrates will save waste of public time and money. 21 Once a party, even by mistake comes to the witness box and takes the oath and is examined about a document, he would become a witness and would be liable to be cross-examined by his opponent. Under Section 138 cross-examination need not be confined to the facts to which the witness testifies in his examination-in-chief; he can be cross-examined as to the whole of the case. 22 Hearsay evidence is not admissible in cross-examination, unless it be admissible under the provisions of Section 146. 23 Mere suggestions during cross-examination, not supported by specific statements by the accused and defence evidence, have no evidentiary value in a criminal trial. 24 A defendant admitting the plaintiff's claim cannot be permitted to cross-examine the plaintiff. 25 A pro forma defendant has no right to examine or cross-examine either adversely or friendly the witnesses of the plaintiff nor he has the right to bring his own witness and cross-examine the witnesses which might be produced by the other defendant, moreso when he has not filed any written statement against the plaint. 26 Opportunity of cross-examination involves two elements:--(1) Notice to the opponent that the deposition is to be taken at the time and place specified; and (2) A sufficient interval of time to reach the place.27 16 Cambier v. Fr. E. Vanni Archbishop, AIR 1951 MB 86. 17 Inuganti Bhavani v. Inuganti Girija Devi, 2005 AIHC 298, 299 (para 9) (AP). See also Veesam Mohan Reddy v. Rebba Pedda Agaiah, AIR 2008 (NOC) 1217(AP) . 18 Baga Bharti v. Sarkar, AIR 1950 Raj 10. 19 1969 All WR (HC) 369. 20 Patel Jasmat Virji v. State of Gujarat, (1980) 21 Guj LR 684. 21 Public Prosecutor v. R. Ramadoss, (1977) 2 An WR 195. 22 Onkar Bhikaram v. Balmukund Javerchand, AIR 1957 MB 135. 23 Ganauri Laldas v. Queen Empress, ILR 16 Cal 211. 24 State v. Md. Misir Ali, AIR 1963 Assam 151. 25 K. Subba Rao v. Y. Venkatappayya, AIR 1978 AP 193. See also Hussens Hasanali v. Sabbirbhai Hasanali, AIR 1981 Guj 190; followed in, State of West Bengal v. Rama Devi, AIR 2002 Cal 235. 26 State of W.B. v. Rama Devi, AIR 2002 Cal 235, relying on, Hussens Hasanali v. Sabbirbhai Hasanali, AIR 1981 Gujarat 190. 27 1985 Mad LW (Cri) 186.

9. CROSS-EXAMINATION--GENERAL When the examination-in-chief has resulted in clear, conclusive or unimpeachable evidence, it may be prudent for the adverse party not to cross-examine; for, in such a case, he may be so doing, instead of weakening the evidence, merely strengthen and confirm it. So, too, he will generally not crossexamine a witness, whose evidence he admits, or which cannot possibly injure his case. Reckless cross-examination, moreover, often lets in evidence which before was not admissible. 28

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Cross-examination, though a very powerful, is also a very dangerous engine. It is a double-edged weapon, and as often wounds him who wields it, as him at whom it is aimed. To wield it to advantage requires great practice and natural tact. In the hands of the raw and inexperienced advocate, we frequently see it do more injury than good to his cause. Yet it is in this branch of forensic practice that the youthful advocate is most eager for display. The old and wary pleader remembers that the witness is hostile to him, and is perhaps on the watch to inflict damage on his cause. Every question is likely to give such a witness an opportunity of clinching the nail he has driven before, if not of starting new matter, which the examination-in-chief may not have elicited, but which may be further pursued on reexamination. Therefore unless there is some very good ground for believing that the witness can be broken down, or convicted of falsehood, it is rarely good policy to submit him to a severe crossexamination. Sometimes a cross-examination is little more than affectation, in order that the pleader may not seem to let the witness go without question, as if he were totally impregnable; and a few questions are asked to shake his credit, or show the weakness of his memory. Sometimes too, a cross-examination may have the fishing object of eliciting some haphazard reply, which will open up matter favourable to the examiner on further pursuit. But generally speaking, cross-examination is to be warily approached, and the way carefully felt. Its use should be sparing; yet in mofussil practice the cross-examinations are scarcely less remarkable for their length than the utter irrelevancy and futility of their character.29 The trend of the cross-examination is in most cases determined by the line of narrative unfolded in the examination-in-chief. It is usual to take each important item so deposed to and to cross-examine the witness upon it. Its purpose is two-fold. First of all, the cross-examiner tries to discover if the story told by the witness in examination-in-chief is tainted by exaggerations or falsehoods. Secondly, the adverse party can in some cases construct his line of defence from out of the mouth of the witness. The essence of cross-examination is, that it is the interrogation by the advocate of one party of a witness called by his adversary with the object either to obtain from such witness admissions favourable to his cause, or to discredit him. Cross-examination is the most effective of all means for extracting truth and exposing falsehood.30 A power of attorney holder can neither depose as to nor be cross-examined on the facts which are in the personal knowledge of his principal.31 A skilful cross-examination is the highest attainment of an advocate's art. It is, difficult to frame any rules governing it; its technique can be acquired only by natural instinct or by long practice. The Act has, however, laid down some rules of guidance. The questions put in cross-examination to a great extent probabilise the prosecution version. Though the questions put in cross-examination are not always determinative in finding an accused guilty, they are certainly relevant.32 Where a witness took a diametrically opposite stand in cross-examination from what he had stated in the examination-in-chief, there would ordinarily be no justification for preferring his statement made in the examination-in-chief to that made in his cross-examination unless the prosecution cross-examined the witness under Section 154 of the Evidence Act to show that the statement made in his crossexamination on behalf of the accused should not be relief upon. 33 The order to furnish a copy of questions to be asked to the witness before his cross-examination was held to unsustainable as it would lose its essential purpose as truth is usually extracted from the witness by the dexterous surprise.34 In a criminal case the evidence of a witness not of a formal character but of occurrence, cannot be given on affidavit and so it cannot be read in evidence. Such witness though present in the Court cannot be allowed to be cross-examined.35 Where there is evidence to show that the husband and wife were not residing in the same room since before the institution of the suit and the allegation of the cohabitation bears a date four months after the institution of the suit, the evidence of the wife regarding cohabitation cannot be believed only on account of absence of cross-examination on the question of cohabitation as this seems to be against

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all probabilities where the husband and wife were locked in the legal battle for custody of the children and have been residing separately since before the institution of the suit. 36 28 POWELL, 10th Edn., p. 463. 29 NORTON ON EVIDENCE, 3rd Edn., S. 418, p. 222. 30 Sujad Ali v. Kashenath Doss, (1866) 6 WR 181(Civil), 182. See P. v. P., AIR 1982 Bom 498 which explains the range of cross-examination. The Court permitted questions as to the social conditions of family life and the degree to which mixing with other people would give rise to inference of adultery. 31 Janki Vashdeo Bhojwani v. Indusind Bank Ltd., (2005) 2 SCC 217, 222 (para 12) : AIR 2005 SC 439. 32 Jesu Asir Singh v. State, (2007) 12 SCC 19, 24 (para 12) : AIR 2007 SC 3015. 33 Damber Bahadur Chettri v. State of Sikkim, 2005 CrLJ 808, 815, para 12 (Sikk). 34 Vishan Narain v. Oriental Insurance Co. Ltd., AIR 2002 Del 335, 336. 35 Moti Lan v. State of U.P., 2004 CrLJ 950, 961 (paras 45 & 46) (All) : 2003 All LJ 2791 : 2003 (3) All CrR 2767. 36 Pranab Kumar Chakraborty v. Kumkum Chakraborty, AIR 2005 Cal 345, 348 (para 7). The Court relied on Juwae Singh v. State of M.P., AIR 1981 SC 373 : 1980 SCC 417(Supp) ; P. Ram Reddy v. Land Acquisition Officer, 1995 AIR SCW 871 : (1995) 2 SCC 305.

10. UNFINISHED CROSS-EXAMINATION Where evidence of a witness was recorded on commission and his cross-examination was partly held and thereafter the witness died, it was held that the evidence of such a witness could not be expunged or rejected altogether; but it would be considered by the Court as to how much weight should be attached to it, considering the other facts and circumstances of the case. 37 37 Dever Park Builders Pvt. Ltd. v. Madhuri Jalan, AIR 2002 Cal 281, relying on Ahmad Ali v. Joti Prasad, AIR 1944 All 188 (2); Maharaja of Kolapur v. S. Sunderam Ayyar, AIR 1925 Mad 497; Horli Kumar v. Rajab Ali, AIR 1936 Pat 34 and Mangal Sen v. Emperor, AIR 1929 Lahore 840.

11. CROSS-EXAMINATION WHERE THERE ARE SEVERAL ACCUSED-DEFENDANTS The accused is entitled in law to put further questions to a prosecution witness by way of crossexamination in respect of what he had stated in reply to questions put to him in cross-examination by the other accused. Each accused is entitled in law to test the evidence given against him by a prosecution witness, by cross-examination. And such cross-examination need not be limited only to what has been stated by him in examination in chief. Though Section 137 and Section 138 do not in words speak of a further round of cross-examination, there is neither in theses sections nor any where else in the Evidence Act anything to bar the accused from exercising his right of cross-examination afresh if and when the prosecution witness makes a further statement of facts prejudicial to him. 38 An accused person may cross-examine a witness called by a co-accused for his defence when the case of the second accused is adverse to that of the first. 39 38 Muniappan v. State of Madras, AIR 1961 SC 175. 39 Ram Chand Chatterjee v. Hanif Sheikh, (1893) 21 Cal 401.

12. CROSS-EXAMINATION OF WITNESSES OF CO-ACCUSED OR CO-DEFENDANTS

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Where two prisoners are tried together and one gives evidence affecting the other, the other prisoner has a right to cross-examine.40 Evidence of witnesses examined in defence on behalf of one accused and cross-examined on behalf of another accused is admissible as against the latter. It may be otherwise where that other accused had no opportunity of cross-examining them or where he has not been given an opportunity by the Magistrate or the Judge to explain the circumstances appearing in such evidence.41 It would be unjust and unsafe not to allow a co-accused or co-defendant to crossexamine a witness called by one whose case was adverse to him or who had given evidence against him. When the co-defendant/co-respondent did not have common interest, and there was a conflict of interest and evidence had been adduced affecting the interest of co-defendant, he should be given an opportunity to cross-examine the witness of such co-defendant. 42 Where the parties arrayed as defendants in a suit have taken contradictory stands on a relevant and material issue, they shall be adversary to each other and are entitled to exercise their right of cross-examination against each other.43 Where evidence produced by a partner defendant was found admissible against other codefendant partners, it was held that the co-defendants have a right of cross-examination of such defendant partner.44 A defendant who is not interested in an issue between the plaintiff and his codefendant, is not entitled to cross-examine such co-defendants. 45 But if the co-defendant gave evidence against him then he may cross-examine the co-defendant though there is no issue connecting both of them46 and also if the conflict of interest between the two is apparent. 47 The crossexamination of one co-defendant by another co-defendant can be allowed to the extent of clash of interest of the co-defendant. If later on it is found that the defendants are colluding, the same shall be appreciated by the Court at the appropriate stage.48 Where the defences of a co-respondent or a codefendant and the respondent or the defendant are identical, neither is entitled to cross-examine the other. It is only where the evidence of a co-defendant or a co-respondent is adverse to the defendant or the respondent that the defendant or respondent has the right to cross-examine. 49 It was held that when the evidence of a witness produced by an alleged sub-tenant would be inadmissible in evidence, the other alleged sub-tenant could be refused permission to cross-examine such a witness. But, when such evidence is admissible, the other alleged sub-tenant cannot be refused permission to cross-examine such witness solely on the ground that both the sub-tenants had a common defence.50 40 R. v. Hawden, (1902) 1 K.B. 882. 41 Nandgopal v. State, ILR (1951) Nag 172. 42 Ennen Castings (P.) Ltd. v. M.M. Sundaresh, AIR 2003 Kant 293, 295 (para 11). 43 Sadhu Singh v. Sant Narain Singh, AIR 1978 Punj 319. 44 Sohanlal v. Gulabchand, AIR 1966 Raj 229. 45 Re, Wagstaff, 96 LT 605 : (1907) 2 Ch 35. 46 Dryden v. Surrey C.C., (1936) 2 All ER 535. 47 Mohamed Ziaulla v. Sorgra Begum, 1997 AIHC 2628 (paras 8-10) (Kant). 48 Kartar Singh v. Thakur Singh, 2002 AIHC 3683, 3684 (para 2) (P&H). 49 Ghadiali v. Ghadiali, (1946) 48 Bom LR 36. 50 Des Raj Chopra (Mrs.) v. Puran Mal, AIR 1975 Del 109.

13. CROSS-EXAMINATION OF WITNESS CALLED BY COURT If the witness called by the Court gives evidence against the complainant, he would have right to cross-examine such a witness.51 51 Pradeep Kumar Agarwal v. State, 1995 Cr LJ 76 (para 4) (Ori). See also Rama Paswan v. State of Jharkhand, 2007 CrLJ 2750, 2752 (para 10) : (2007) 11 SCC 191; Jamatraj Kewalji Govani v. State of Maharashtra, AIR 1968 SC 178.

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14. CROSS-EXAMINATION OF INVESTIGATING OFFICER Where the cross-examination of Investigating Officer could not be completed on a particular day, it should be continued on the next working day, granting of one months time to cross-examine the said witness was held to be not proper.52 52 Safai Rai v. State of Sikkim, 2002 CrLJ 856, 857 (para 10) (Sikk) : 2002 (4) All CrLR 95.

15. OMISSION TO CROSS-EXAMINE In HALSBURY 4th Ed., Vol. 17, Para 278, Page 194 it is observed: "Failure to cross-examine a witness on some material part of his evidence, or at all, may be treated as an acceptance of the truth of that part or the whole of his evidence."53 It is a well-established rule of evidence that a party should put to each of his opponents' witnesses so much of his case as concerns that particular witness; if no such questions are put, the courts presume that the witnesses' account has been accepted. If it is intended to suggest that a witness was not speaking the truth upon a particular point, his attention must first be directed to the fact by crossexamination so that the witness may have an opportunity of giving an explanation. 54 When a party has declined to avail himself of the opportunity to put his essential and material case in cross-examination, it must follow that he believed that the testimony given could not be disputed. This is not merely a technical rule of evidence. It is a rule of essential justice. 55 Where the first informant was not cross-examined on his explanation about delay in lodging the F.I.R., his evidence remained unchallenged and must be believed.56 Where witnesses are not tested by cross-examination, their evidence may be accepted unless there are any inherent improbabilities, affecting the credibility. 57 It was however held by the Supreme Court that the failure to cross-examine a witness would not mean that the testimony of the witness is true and acceptable, and it may be discarded if his testimony is on the fall of it unacceptable.58 When the accused did not suggest to prosecution witnesses in crossexamination indicating his defence, it was held that the defence version may be rejected as an after thought.59 When an accused declined to cross-examine the witness it was held that he having foregone his right to cross-examine the witnesses, cannot subsequently make a grievance about it. 60 When the doctor gave evidence that death was due to poisoning and the accused did not crossexamine him or the investigating officer, as to the safe and proper custody of the poison which was said to have been administered to the deceased; it was held that the evidence of the doctor must be accepted.61 53 Browne v. Dunn, (1894) 6 R 67 (HL); R. v. Hart, (1932) 23 Cr App Rep 202(CCA) . See also Peddavandla Narayanamma v. Peddasani Venkata Reddy, AIR 2007 AP 137, 141-42 (para 17); Shyamal Kumar Chatterjee v. Rabindra Narayan Banerjee, AIR 2007 (NOC) 1430(Cal) . 54 Chunilal v. Hartford Fire Insurance Co., Ltd., AIR 1958 Punj 440; Chithalan v. C. Ammo Amma, 1968 Ker LJ 123; Ibadat Ali v. Baldia Co-op. Bank, (1968) 2 An LT 124; Commissioner of H.R. and C.E. v. M. Ayyavarayya, (1966) 2 An LT 280; Babulall v. Caltex India Ltd., AIR 1967 Cal 205; Bansilal Madanlal v. East Bengal River Steam Service, (1972) 2 Cal 380; Carapiet v. Derderian, AIR 1961 Cal 359; Atul Chandra v. Sonatan Daw, AIR 1962 Cal 78; Balkishan v. State, 1977 Cr LJ 410(Del) ; Jayalakshmi Devamma v. Janardhan Reddy, AIR 1959 AP 272; Karnidan Sarda v. Sailaja Kanta, AIR 1940 Pat 683; State of Rajasthan v. Bhola Singh, AIR 1969 Raj 219; Shyamsingh v. Deputy Inspector General of Police, AIR 1965 Raj 140. 55 Carapiet v. Derderian, AIR 1961 Cal 359; State of Rajasthan v. Bhola Singh, AIR 1969 Raj 219; Ramanand v. State, ILR 1974 HP 509; State of H.P. v. Thakurdas, 1983 Cr LJ 1694. 56 State of U.P. v. Nahar Singh, AIR 1998 SC 1328 : 1998 Cr LJ 2006, approving Browne v. Dunn, (1893) 6 R 67. See also Sarwan Singh v. State of Punjab, AIR 2002 SC 3652 (para 8); Ramsewak v. State of M.P., (2004) 11 SCC 259, 265 (para 14) : AIR 2004 SC 3962 : 2004 CrLJ 3043; W. Stewart v. New Zealand Ins. Co. Ltd., 16 CWN 991. 57 Kansi Ram v. Jai Ram, AIR 1956 HP 4; Bijai Ram v. Jai Ram Ganga Ram, AIR 1955 HP 57; Ganpat Ram Khosla v. Kishenlal, (1958) 60 Punj LR 349; Karnidan Sarda v. Sailaja Kanta, AIR 1940 Pat 683; Vellupillai v. Paramanandam,

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AIR 1954 Tra. Co. 152; Ramanand v. State, ILR 1974 HP 509; Sachindranath v. Nilima Chetterji, AIR 1970 Cal 38; Rani Bala v. Ram Krishna, (1969) 73 Cal WN 751; Sukharji Bhuj v. Calcutta State Road Transport Corpn., AIR 1966 Cal 620; Kanika Bewa v. State, (1975) 41 Cut LT 798; Kanika Bewa v. State of Orissa, 1976 Cr LJ 418(Ori) ; Dulari Kuer v. Shivanandan Prasad Singh, 1977 BLJR 280; Mahant Mela Ram Chela v. SGP Committee, AIR 1992 P&H 252 (Amritsar). 58 Juwar Singh v. State of M.P., AIR 1981 SC 373. 59 Mehra v. State of Rajasthan, AIR 1957 SC 369; Yusuff Ali v. State of Maharashtra, AIR 1968 SC 147. 60 Shyam Singh v. Dy. Inspector General of Police, AIR 1965 Raj 140. 61 State of Orissa v. Kaushalya Dei, AIR 1965 Ori 38.

16. TENDERING WITNESS FOR CROSS-EXAMINATION The practice of tendering witnesses for cross-examination is inconsistent with this section. It ought never to be employed in the case of a witness whose evidence is not merely formal. The practice leads only to confusion and does not induce to the discovery of the truth. 62 The Punjab High Court held that, when a witness has not given statement in examination-in-chief, there is nothing in relation to which he is to be cross-examined. Tendering a witness for the cross-examination only is tantamount to giving up a witness. There is nothing in law that justifies such a course. 63 The practice of tendering a witness for cross-examination at the Sessions Trial, without examinationin-chief, on the ground that he was declared hostile by the prosecution in the committal court, is inconsistent with the provisions of Section 138. Inference of hostility is a matter for the court to decide, and can only be drawn from the answers given by the witness. Where neither the answers of the witness given before the committal court have been transferred under Section 288,(old) Cr PC (now omitted), nor does the prosecution examine him with the permission of the court under Section 154 of the Evidence Act, there would be nothing before the Sessions Court from which it could draw an inference as to the hostility of the witness. The hostility of a witness can not be presumed merely on the word of the prosecution.64 62 Emperor v. Kasamalli Mirzalli, (1941) 44 Bom LR 27 : ILR (1942) Bom 384(FB) : AIR 1942 Bom 71; Emperor v. Sadeppa Gireppa Mutgi, (1941) 43 Bom LR 946 : ILR (1942) Bom 115; Veera Koravan, In re, (1929) 53 Mad 69; Jogindra Singh v. State of Haryana, 194 Cr LJ 117 63 Kesar Singh v. State of Punjab, AIR 1952 Punj 286; Chhota Singh v. State of Punjab, AIR 1964 Punj 120; Sukhwant Singh v. State of Punjab, AIR 1995 SC 1601 : 1995 AIR SCW 2521 : 1995 (2) Scale 482 (paras 9, 17 and 19 of AIR), distinguishing State of U.P. v. Jaggo alias Jagdish, AIR 1971 SC 1586; Tej Prakash v. State of Haryana, 1996 Cr LJ 394 (para 18) (SC). 64 Shailendra Kumar v. Territory of Tripura, AIR 1959 Tri 11.

17. TENDERING A WITNESS WHO WAS DECLARED HOSTILE IN THE COMMITAL COURT FOR CROSS-EXAMINATION A witness declared hostile in the committal court, must be examined in the Sessions Court. The practice of tendering such witness only for purpose of cross-examination was deprecated. 65 When a witness has been tendered by the prosecution, and oath has been administered to him, it is the prosecution which should technically be deemed to have called him, although it did not put a single question to him; therefore it would not be improper for the court to allow the opposite party to cross-examine him under Section 154 of the Act. It would be more proper for the prosecution, while tendering the witness, to ask atleast whether his evidence in the lower court was true and, if the witness gave a general answer as to the truth of his evidence in the lower court, he could then be cross-examined by the opposite party.66

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Where the prosecution declines to call in the Court of Session a witness for the Crown who has been examined in the Magistrate's Court, and such witness is thereupon placed in the witness-box by counsel for the defence, the counsel for the defence is not entitled to commence his examination of the witness by questioning him as to what he had deposed in the Magistrate's Court. Questions as to his previous deposition are, under the circumstances, only admissible by way of cross-examination, with the permission of the Court, if the witness proves himself a hostile witness. 67 65 1956 M.B.L.J. (Bhopal) 159; Thazhathethil Hamsa v. State of Kerala, AIR 1967 Ker 16; Yelayudhan v. State, (1966) 2 Ker 361; Yeera Koravan v. Emperor, AIR 1929 Mad 906; Queen Empress v. Ram Sahai Lall, (1885) 10 Cal 1070. 66 Manzurul Haque v. State of Bihar, AIR 1958 Pat 422. 67 Queen-Empress v. Zawar Husen, (1897) 20 All 155.

18. NO RIGHT TO CROSS-EXAMINATION In a case instituted on a private complaint, the accused have no right to cross-examine the witnesses before the framing of the charge.68 68 Nandram Khemraj v. State of M.P., 1995 Cr LJ 1270 (para 15) (MP).

19. DELAYED CROSS-EXAMINATION Delayed cross-examination does not affect the credibility of the witnesses when earlier version of such witnesses was found to be consistent with other evidence and conviction could be based on such evidence.69 69 P. Satyanarayana v. State of A.P., 1995 Cr LJ 1738 (paras 6 and 7) (AP).

20. RE-EXAMINATION The Evidence Act vests an absolute right upon the party to re-examine its witness. The word "shall" appearing in Sections 137 and 138, in the context of re-examination, is mandatory. The permission of the Court is required only for the purpose of introducing a new matter in such re-examination. There is no requirement in law, on the part of the petitioner to give a schedule of questions to be put forth to the witness in the application filed for recalling a witness for the purpose of re-examination. 70 The third para of Section 337 means, "where a witness has been cross-examined, and is then examined by the party who called him, such subsequent examination shall be called his reexamination."71 The object of re-examination is to afford the party calling a witness an opportunity of filling in the lacuna or explaining the inconsistencies which the cross-examination has discovered in the examination-in-chief of the witness. It is accordingly limited to the explanation of matters referred to in cross-examination (S. 138). It partakes of the nature of examination-in-chief inasmuch as no leading questions can be asked (S. 142). The party who calls a witness has the right to re-examine him on all matters arising out of the crossexamination for the purpose of reconciling any discrepancies that may exist between the evidence in examination-in-chief and that which has been given in cross-examination; or for the purpose of removing or diminishing any suspicion that the cross-examination may have cast on the evidence-inchief; or to enable the witness to state the whole truth as to matters which have only been partially dealt with in cross-examination.72 In re-examination the party has a right to ask all questions which may be proper to draw forth an explanation of the meaning of the expressions used by the witness on cross-examination, if they be in themselves doubtful, and also of the motive, or provocation, which induced the witness to those

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expressions, but he has not right to go further, and to introduce matter new in itself and not suited to explain either the expressions or the motives of the witness. If the counsel chooses to cross-examine the witness as to facts which were not admissible in evidence, the other party has a right to reexamine him as to the evidence so given. If a question has been omitted in the examination-in-chief, and cannot, in strictness, be asked on re-examination as not arising out of the cross-examination, it is usual for counsel to request the Judge to make inquiry and such a request is generally granted. 73 The prayer as to the re-examination of a witness is to be accepted on objective consideration of the application. Where the prayers of the accused were rejected by the trial Court twice and the High Court also having dealt with the issue elaborately agreed with the trial Court, it was held that the order of the trial Court having attained finality, could not be interfered with. 74 The purpose of re-examination is to give an opportunity to the party who called the witness, to explain any part of the cross-examination which is capable of being construed unfavourably to the party who called him. However, new matters cannot be allowed to be introduced in evidence, in re-examination, without taking the court's permission.75 Where applicant sought re-examination of a witness, rejection of the application merely on the ground that the question that would be put to the witness during such re-examination was not precisely specified, was held to be improper. 76 Where the medical evidence both in the examination-in-chief and the cross-examination showed that there was only one gun shot and there was nothing to clarify in re-examination, hence it was held that there was no scope for the same.77Where after investigation a charge-sheet was filed by the CBI against the accused for the offence punishable under Section 120 -B r/w Section 420 and Sections 13(2) r/w. 13(1)(d) of the Prevention of Corruption Act , 1988, and the accused moved an application after a lapse of eight years of filing the said charge-sheet while the case was fixed for trial, for reexamination of the twenty four witnesses who had already been examined by the Investigating Agency, the rejection of the application by the trial Court at the stage of trial for the re-examination of the witnesses was held to be proper and legal.78 70 Raghu Nath Biswas v. Rabi Ram Chandra Jaladhar, AIR 2008 (NOC) 1551(Cal) . 71 STOKES, Vol. II p. 925 f.n. 1. 72 POWELL, 10 Edn., p. 469. 73 TAYLOR, 12th Edn., Ss. 1474, 1475, 1477, pp. 939, 940, 942. 74 Anil Sharma v. State of Jharkhand, AIR 2004 SC 2294 (para 11 and 12) : (2004) 5 SCC 679 : 2004 CrLJ 2527. 75 Charan Singh v. State, AIR 1971 SC 714(Cr) . 76 State of W.B. v. Arunesh Pathak, 2000 Cr LJ 1039 (para 7) (Cal). 77 Chanan Singh v. State of Haryana, AIR 1971 SC 1554, 1557 (para 16) : (1973) 3 SCC 466. 78 Laxmi Rao v. Union of India, 2004 CrLJ 3227, 3228 (paras 8 to 10) (Kant) : 2004 AIR Kant HCR 2016 : 2004 (3) Kant LJ 654.

21. SCOPE OF RE-EXAMINATION SIIBBARAO J., observed: "A clever witness in his examination-in-chief faithfully conforms to what he stated earlier to the police or in the committing court; but, in the cross-examination, introduces statements in a subtle way contradicting in effect what he stated in the examination-in-chief. If his design is obvious, the court can, during the course of his re-examination, permit the person calling him as a witness to put questions to him which might be put in cross-examination by the adverse party. It cannot be said that, if a party calling a witness is permitted to put such questions to the witness after he has been cross-examined by the adverse party, the adverse party will not have any opportunity to further cross-examine the witness on the answers elicited by putting such questions. In such an event the court certainly, in exercise of its discretion, will permit the adverse party to cross-examine the witness on the answers elicited by such questions."79

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The questions cannot be confined to ambiguities alone which arose in cross-examination. Questions can be put to obtain explanation required for any matter referred in the cross-examination. 80 79 Dahya Bhai v. State of Gujarat, AIR 1964 SC 1563. See also Daulat Ram v. Bharat Insurance Co., AIR 1973 Del 180. 80 Rammi v. State of M.P., 1999 Cr LJ 4561 (paras 16-19) (SC) : AIR 1999 SC 3544.

22. RECALLING A WITNESS Re-calling of a witness already cross-examined by defence counsel, can be done for the purpose of a just decision, but the prosecution cannot have such a witness recalled for the purpose of examining him in-chief.81A witness may be recalled under Section 138 of the Evidence Act to be cross-examined. The trial Court may permit a witness to be examined by a party again and again, if it is necessary to ascertain the truth. Such a discretion however will not be exercised after the party has finished with his evidence and may have dismissed some of his witnesses, and the fact in such a case may have been contradicted by the witnesses which have been dismissed. The Court would not suffer him to avail of such disingenuous conduct, and certainly not in appeal when such opportunity could be availed in the trial Court.82 Once the witness was examined-in-chief and cross-examined fully, such witness should not be recalled and re-examined to deny the evidence he had already given before the Court, even though that witness had given an inconsistent statement before any other Court or forum subsequently.83 Where the cross-examination of the prosecution witnesses was adjourned and the counsel for the accused failed to appear on the adjourned date, the accused was entitled to recall of the witnesses. 84 Where in respect of the cross-examination of the two of the witnesses, it was endorsed that the "counsel for the accused is not present. Hence cross-examination recorded to be nil", it was held that those two witnesses could be recalled for cross-examination by the newly appointed counsel of the accused on payment of heavy costs to the State and process and batta payable to the witnesses.85 In a case of murder the accused engaged no private counsel and Amicus Curiae was provided to him at a later stage. Thereafter, he engaged a private counsel and wanted to recall the already crossexamined witnesses for further cross-examination. It was held that in a case like this where it was a question of life and death for the accused, he should be given abundant opportunity to cross-examine the witnesses and recall should have been allowed in the interest of justice. 86 However, where the prosecutrix was thoroughly cross-examined by the counsel of the accused, merely with the change of the counsel she could not be re-called for further cross-examination. 87 Right of the Court to recall the plaintiff for re-cross-examination can be exercised by it on the application of the defendant and is not restricted to action of its own motion.88 However, this section does not restrict the powers of the Court to recall the witness for further examination for non-fulfilment of the condition of re-examination as mentioned in it.89 Where on perusal of the evidence of one of the witnesses, it was seen that the counsel for the accused reported that there was no cross-examination, the Court found no grounds to recall that witness for cross-examination by the newly appointed counsel of the accused. 90 Where in a case of dowry death after completion of evidence on behalf of prosecution side, the accused was allowed to tender his evidence to prove his defence for which he examined five witnesses, thereafter the prosecution moved an application under Section 311 CrPC to recall his witnesses already examined to disprove the stand taken by the accused in his defence. It was held that such application could not be allowed as the same would cause prejudice to the accused and such a procedure is against the basic canons of law.91 Asking a lady to appear in the witness box to allow the opposition to prove their allegation against her mental health is a direct affront to her right of privacy. She has a right not to appear for such crossexamination. The Court would not insist a lady to be cross-examined in such a case. 92 Recall of witness after magistrates had retired to consider their decision.--The defendant was seen driving by a police officer who stopped her. He smelled alcohol and a roadside breath test was

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conducted. She was taken to a police station where drink drive procedure was carried out. She initially failed to provide a specimen but two breath samples were later obtained which showed alcohol in excess of the prescribed limit. She was charged with a drink driving offence. At the magistrates' Court she raised the defence of necessity or duress of circumstances. A police officer gave evidence that he had authorised her detention and carried out the drink drive procedure at the police station including the breath test. The defence did not cross-examine him. In her final speech the counsel for the defence submitted a new point that no warning was given as required under relevant Section of the Road Traffic Act that a failure to provide a specimen might render the defendant liable to prosecution and that, accordingly, there was no admissible evidence that the correct procedure had been followed or that any print out had been served on the defendant. The justices retired and then returned to Court to state that they considered that the prosecution had failed to comply with the evidential burden under the Act and they were dismissing the case. At that point the prosecution counsel requested leave to recall the police officer for further evidence in order to remedy the deficiency in the prosecution case. The defence counsel contended that it was too late to hear further evidence. The justices concluded that in the absence of any challenge to the police officer's evidence and in the light of the overriding statutory objective that criminal cases be dealt with justly, the prosecution should be allowed to recall the witness before they decided and announced their verdict. The police officer gave evidence and on that basis the justices found that proper procedure had been followed and that the defence of duress had not been available to the defendant at the relevant time and therefore convicted her. She appealed submitting that having retired to consider their verdict and having announced their decision adverse to the prosecution on the point raised by the defence in the final speech, the justices had no discretion to permit the prosecution to call further evidence to meet that point or alternatively, they could not have lawfully, exercised their discretion as they had done. It was held that in considering whether there were the special circumstances required for the exercise of discretion of the justices to receive further evidence in the circumstances of the case the Court had to take into account the overall objective of criminal procedure that criminal cases be dealt with justly, which included acquitting the innocent and convicting the guilty. It was the statutory duty of the defence to make its defence and the issues it raised clear to the prosecution and to the Court at an early stage i.e. latest before the prosecution closed its case which had not been done in the instant case. The defence had ambushed the prosecution by raising the issue of non-compliance with statutory procedure. Those circumstances were special circumstances justifying the exercise of the magistrates' discretion to recall the police officer to give evidence notwithstanding that they had retired and had partially announced their decision, the appeal was dismissed.93 81 (1985) 3 A.P.L.J. 72. 82 Doongar Mal Singodia v. Anoop Kumar Agarwal, AIR 2008 (NOC) 1550(All) . 83 Mishrilal v. State of M.P., (2005) 10 SCC 701, 703 (para 6). 84 Hazari Ram v. State of Rajasthan, 1994 Cr LJ 3758 (para 5) (Raj). 85 G. Sridhar v. State of A.P., 2005 CrLJ 1292, 1295 (para 7) (AP). 86 Ramshanker v. State of U.P., 1997 Cr LJ 1102(All) . 87 Baldev Singh v. State of Punjab, 2007 CrLJ 251(NOC) (P&H). 88 S.S.S. Durai Pandian v. S.A. Samuthira Pandian, AIR 1998 Mad 323 (para 24). 89 Laxmi Kant Upadhyaya v. Deo Narain Misra, 2001 AIHC 3059 (para 3) (All). 90 G. Sridhar v. State of A.P., 2005 CrLJ 1292, 1295 (para 6) (AP). 91 State of Karnataka v. Venugopal, 2004 CrLJ 2899, 2900 (para 7) (Kant) : 2004 AIR Kant HCR 1908 : 2004 (5) Kant LJ 613 : 2004 (4) Rec CrR 5. 92 Doongar Mal Singodia v. Anoop Kumar Agarwal, AIR 2008 (NOC) 1550(All) . 93 Malcolm v. Director of Public Prosecutions, [2007] 3 All ER 578, following MacDonald v. Skelt , [1985] RTR 321.

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23. EXAMINATION BY COURT It is not the province of the Court to examine the witnesses, unless the pleaders on either side have omitted to put some material question or questions; and the Court should, as a general rule, leave the witnesses to the pleaders to be dealt with as laid down in this section. 94 The Court can put questions to a witness to elicit truth during cross-examination even if he is a bit confused. 95 94 Per GARTH, C.J. in Noor Bux Kazi v. Empress, (1880) 6 Cal 279, 283. 95 State of Rajasthan v. Ani, AIR 1997 SC 1023 : 1997 Cr LJ 1529, following Chander v. State of Haryana, AIR 1981 SC 1036 : 1981 Cr LJ 609.

24. POWER OF THE COURT TO PUT QUESTIONS The court has however power to put questions at any stage during the trial. When the court finds that the witnesses were not sticking to the statement made by them under Section 161 or 164,Cr. P.C., and were probably giving false evidence, they should not be rebuked and threatened that they would be prosecuted for perjury; the Judges should always adopt the principle of fair trial. 1 Where a witness is asked certain questions about a matter, and he is not a person who could say anything about it, such questions should be disallowed by the Court.2 The judge's right to question is circumscribed by the adversary system. Where the judge rebuked a witness and threatened him with prosecution for perjury, the whole trial was held to be vitiated. 3 The practice of Judges and Magistrates questioning the witnesses as if they were cross-examining counsel must be deprecated. It is opposed to the provisions of Section 138, and is not fair to the prisoners. It is not the province of the court to examine the witnesses unless the pleaders on either side have omitted to put some material questions. And, as a general rule, the witnesses must be left to the pleaders to be dealt with, as laid down in Section 138. It would be embarrassing to the counsel examining a witness when the judge interferes during the course of either examination-in-chief or of cross-examination and it would take away the trend of the examining counsel. 4 No doubt it is true that the court can put any question to the witness at any stage of the examination, but this power should not be carried to the extent of the court itself examining the witness. 5 Propriety demands that the court should only put questions at the end of the deposition, after the examination-in-chief, crossexamination and re-examination, if any, is over though the questions can be put by the court at any stage of recording evidence of the witness.6 If any ambiguity has arisen during cross-examination of a witness, a judge cannot sit as a mere spectator of the scene and mechanically record the evidence; he should get the ambiguity clarified by putting necessary questions to a witness. 7 WIGMORE(3rd Vol. Section 781, P. 137) states: "An intimidating manner in putting questions may so coerce or disconcert the witness that his answers do not represent his act ual knowledge on the subject. So also questions which in form or subject cause embarrassment, shame or anger in the witness, may unfairly lead him to such demeanour and utterance that the impression produced by his statements does not do justice to his real testimonial value." 1 Ram Chander v. State of Haryana, AIR 1981 SC 1036. 2 Tan Bug Taim v. Collector of Bombay, AIR 1946 Bom 216. 3 Ram Chander v. Haryana, AIR 1981 SC 1036. 4 Nanjappa v. Periakkal, AIR 1951 Mad 772. 5 State of Basudeb Senapati,(1957) 23 Cut LT 449. 6 Noormohmed v. State, (1970) 11 Guj LR 846. 7 State v. Beda Digal, (1977) 1 Cut 111, 116.

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25. TIME FOR EXAMINATION--POWER OF COURT TO LIMIT THE TIME FOR EXAMINATION The Privy Council held that the Judge has always a discretion as to how far the cross-examination may go and how long it may continue; a fair and reasonable exercise of his discretion will not generally be questioned by an appellate court.8 It was held by LORD SANKEY: "A protracted and irrelevant cross-examination not only adds to the cost of litigation but it is a waste of public time. The court has to check irrelevant cross-examination." 9 In another case, the Privy Council has gone to the extent of stating that the High Courts are to direct an enquiry with a view to disciplinary action against the lawyers indulging flagrant abuse of that court's time. It observed: "Abuse in the matter of cross-examination which enormously increases the costs of litigation, without any corresponding benefits to the parties, should be checked and it would appear to be clearly within the powers of the High Courts to direct an enquiry with a view to disciplinary act ion about the lawyers in flagrant cases."10 The court has undoubted control and discretion in the matter of controlling the cross-examination of a party by the counsel of the opposite party. It is true that neither the Evidence Act nor the Code of Criminal Procedure contains anything which would justify a court of law in imposing a particular time limit, but if the court has the discretion and has control over the proceedings, surely the court must be presumed to have such a power apart from the Evidence Act or the Code of Criminal Procedure . 11 It is no doubt true that cross-examination is one of the most important processes for the elucidation of facts and testing the veracity of a witness and accuracy of the story unfolded by him. So, all reasonable latitude must be shown. But, the judge has the discretion in regard to how far and how long the cross-examination can go. Prolix examination and cross-examination must be checked. Irrelevant topics sometime pursued at great length, and persistence shown in going over the same ground again and again in the hope of making the witness discrepant, must not be endured or permitted. Exercise of great vigilance and control over the court proceedings by judges and magistrates will not only save waste of public time and money but also help clear the backlog of arrears.12 8 Yassiliades v. Yassiliades, AIR 1945 PC 38. See also Babu v. Babu, (2003) 7 SCC 37 (paras 16 and 17). 9 Mechanical & G.I. Co. Ltd. v. Austin and Austin Motor Co. Ltd., (1935) AC 346. 10 Rajkumar Sen v. Ramasunder, AIR 1932 PC 69. See also Emperor v. Rahimatalli, AIR 1920 Bom 402. 11 Yeshpal v. Rasiklal, AIR 1955 Bom 318; referring to AIR 1945 SC 38; 1935 AC 346; AIR 1932 PC 69; Supra. 12 Public Prosecutor v. R. Ramdoss, (1977) 2 An WR 195.

26. TRIAL WITH THE AID OF VIDEO-CONFERENCING In Kalyan Chandra Sarkar v. Rajesh Ranjan ,13 in view of the special circumstances of the case, the Supreme Court allowed trial with the aid of video-conferencing. 13 (2005) 3 SCC 284, 298 (para 45) : AIR 2005 SC 972 : 2005 CrLJ 1441.

27. EXPUNCTION OF DEPOSITION OF PLAINTIFF'S WITNESS FROM EVIDENCE If statements made by the plaintiff's witness in his examination-in-chief are contrary to the interest of the plaintiff or in favour of defendant, then the witness has to be declared hostile. It is not open to the

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plaintiff to say that the witness had been won over and, as such would not be produced for further cross-examination and his evidence must be expunged.14 14 Bimla Devi v. Rambhajan Mahto, AIR 2006 Pat 168 (para 6).

28. S. 138OF EVIDENCE ACT AND S. 311 OF Cr.P.C. Provisions of Section 138 of the Evidence Actand Section 311 that of the Cr.P.C. are complementary and not conflicting with one another.15 15 G.H. Iyer v. State, 1998 Cr LJ 1821 (para 4) (Ori).

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CHAPTER X OF THE EXAMINATION OF WITNESSES S. 139. Cross-examination of person called to produce a document. A person summoned to produce a document does not become a witness by the mere fact that he produces it, and cannot be cross-examined unless and until he is called as a witness. 1. PRINCIPLE AND SCOPE

According to this section, a person who has been summoned to produce a document will not become a witness by the mere fact that he produces it, and he cannot be cross-examined unless and until he is called as a witness. Order XVI, Rules 6 and 15, Civil Procedure Code, and Section 94 (old) Cr. P.C., (corresponding toSection 91(1)(2)New Cr. P.C.) provide for the summoning of a person to produce a document. Where a lady was summoned to produce a document under Section 94(old) Cr. P.C., expressed that she was not having the document in question and, as she was apardanashin lady, she need not be summoned to the Court, the Supreme Court held that Section 94(2) states that a person required merely to produce a document shall be deemed to have complied with the order if he causes that such document to be produced, instead of attending personally to produce the same; that there is nothing in the Chapter to provide that the person who appears in the Court, in pursuance of its summons under Section 94(1)of Cr. P.C., thereby becomes a witness and can be examined and cross-examined by the Court, although he has not been cited as a witness in the proceedings; and that even if a person produces a document for which a summons has been issued to him,Section 139 clearly provides that he does not thereby become a witness by the mere fact that he produces it and he cannot therefore be cross-examined unless and until he is called as a witness. 16 The rule contained in this section is in accordance with the practice under the English Law, namely, that a person who merely produces a document need not be sworn and, unless sworn, he cannot be cross-examined. The summons to produce a document is in English law called a subpoena duces tecum. This section has to be read along with Section 162 of this Act, which says, that, when a witness is summoned to produce a document, he shall bring it to the Court, if it is in his possession or power, notwithstanding any objection to its production or to its admissibility. If once summons are issued and the person fail to produce the document, it would be an offence under Section 175, I.P.C., orSection 480,Cr. P.C. (old) corresponding toSection 345(New Cr.P.C. of 1973). An accused cannot be compelled to produce a document in his possession. 17 16 Parmeshwari Devi (Smt.) v. State, AIR 1977 SC 403. 17 Manjula Ramlal Barot v. Iswarlal P. Barot, 2006 CrLJ 3779, 3785-86 (para 23) (Bom), relying on Shyamlal Mohanlal v. State of Gujarat, AIR 1965 SC 1251 : 1965 (2) CrLJ 256 and Yinayak Purushottam Kalantre v. Yikram Balwantrao Deshmukh, 1979 CrLJ 71.

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2. WITNESS SWORN BY MISTAKE The expression "unless and until he is called as a witness" means until he is summoned to depose, and he is sworn. When a witness is sworn, it gives the opponent a right of cross-examination, although he may not be examined in-chief after administration of oath. But, a witness called and sworn under a mistake, and whose evidence is not substantially begun, is not liable to be cross-examined. However, the mistake must arise from an erroneous belief that the witness knew something of the transaction when, as a matter of fact, he knew nothing about it. 18 WIGMORE ON EVIDENCE (1940) 3rd Ed., Vol. 6, Art. 1893, P. 563 observed 1I  A person who has been sworn by mistake, as sometimes happens under the practice of swearing in a group, and has not yet been put on the stand, is not yet the witness of the party for whom he has sworn. 1I.  A person sworn, but not yet asked any question, is not the witness of the party swearing him: morever, he cannot be cross-examined even to discredit him, for there is as yet no testimonial assertion to be discredited. 1II.  A person sworn and asked questions, where he gives no answer or where the facts in his answer are irrelevant to the case, has not yet become his party's witness. 1V.  A person who is questioned and answers merely to prove a document does become a witness of the party thus using him." .... "A person producing a document and answering questions tending to prove it does become the questioner's witness." (p. 565). Where a witness denies, that he has the possession or means of producing a particular document, he can, if he has been guilty of falsehood, be prosecuted for giving false evidence in a judicial proceeding.19 18 Wood v. Mackinson , (1940) 2 M&R 273. 19 PER WEST J., in In re, Premchand Dowlatram,(1887) 12 Bom 63, 65.

3. TO BE A WITNESS It was held by the Supreme Court that this section is only to regulate the right of cross-examination, and it is not a guide to the word 'witness', which must be understood in its material sense, i.e., as a referring to a person who furnishes evidence.20 The Supreme Court observed by the majority, that "to be a witness" in its ordinary grammatical sense means giving oral testimony in court, and the case law has gone beyond the strict literal interpretation of the expression, which may now bear a wider meaning viz. bearing testimony in court, or out of court, by a person accused of an offence orally or in writing.21 Section 139, has nothing to do with the proper custody mentioned in Section 90 of the Evidence Act. The former provides a machinery for the production of the documents summoned, whereas the latter section deals with proper custody of the document, which has to be decided on the evidence adduced.22 Mere production of documents or giving some information about the document by the accused cannot be interpreted as "to be a witness" within Art. 20 of the Constitution. 23 20 M.P. Sharma v. Satish Chandra, AIR 1954 SC 300. 21 State of Bombay v. Kathi Kalu, AIR 1961 SC 1808. 22 Ravjappa v. Nilakanta Rao, AIR 1962 Mys 53. 23 State of Bombay v. Kathi Kalu, AIR 1961 SC 1808; reversing Farid Ahmed v. State, AIR 1960 Cal 32 and overruling; State of Kerala v. Sankaran Nair, AIR 1960 Ker 392 FB; State of Gujarat v. Shyamlal Mohanlal, AIR 1963 Guj 178.

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CHAPTER X OF THE EXAMINATION OF WITNESSES S. 140. Witnesses to character. Witnesses to character may be cross-examined and re-examined. 1. SCOPE AND PRINCIPLE

This section states that witnesses who give evidence as to character may be cross-examined and reexamined. Sections 53 and 54, Section 146(3) of the Evidence Act would be relevant in this connection. In Section 53, it is said that, in criminal proceedings, the fact that the person accused is of good character is relevant, whereas Section 54 says that in criminal proceedings, the fact that the accused person has a bad character is irrelevant, unless evidence has been given that he has a good character, in which case it becomes relevant. Section 146 Cl. (3) states that, when a witness is crossexamined to shake his credit, questioning about his character is permissible. BEST ON EVIDENCE (8th Ed., Section 262, pp. 248, 249) has observed: "Witnesses to the character of parties are in general treated with great indulgence,--perhaps too much. Thus, it is not the practice of the bar to cross-examine such witnesses, unless there is some specific charge on which to found a cross-examination, or at least without giving notice of an intention to cross-examine them, if they are put in the box. The Judges also discourage the exercise of the undoubted right of prosecuting counsel to rely on their testimony, and the most obvious perjury in giving false characters for honesty etc., is everyday either overlooked or dismissed with a slight reprimand. But surely this is mercy out of place. If mendacity in this shape is not discouraged, a tribunal will naturally be induced either to look on all character evidence with suspicion, or to attach little weight to it. Now, there are many cases in which the most innocent man has no answer to oppose to a criminal charge but his reputation; and to deprive this of any portion of the weight legitimately due to it, is to rob the honest and upright citizen of the rightful reward of his good character...The use of character evidence is to assist the jury in estimating the value of the evidence brought against the accused and we cannot dismiss this subject without directing attention to the shrewd observations of HOLT C.J.24; "A man is not born a knave, there must be time to make him so, nor is he presently discovered after he become one. A man may be reputed an able man this year, yet be a beggar the next." Character lies in the man; it is the mark of what he is; it shows itself on all occasions. Reputation depends upon others; and it is what they think of him. According to Oxford Dictionary, 'character' means: "collective peculiarities, sort, style, reputation, good-reputation, description of person's qualities, testimonial, status." The Model Code of Evidence defines 'character' as the "aggregate of person's traits including those relating to care and skill and their opposites." Just as cause of action means a bundle of facts, character is an expression of very wide import, which takes in all the traits, special and particular qualities impressed by nature or habit which serve as an index to the essential intrinsic nature of a person. Character and reputation are not synonymous. 25 24 R. v. Swendson, (1702) 14 How St Tr 496.

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25 See Ramasubba Reddy v. P.Y.S. Rama Das, 1970 Cr LJ 83(AP) .

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CHAPTER X OF THE EXAMINATION OF WITNESSES S. 141. Leading questions. Any question suggesting the answer which the person putting it wishes or expects to receive, is called a leading question.

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Ratanlal & Dhirajlal: Law of Evidence, Updated 23rd Edition/THE INDIAN EVIDENCE ACT (ACT 1 OF 1872)/PART III PRODUCTION AND EFFECT OF EVIDENCE/CHAPTER X OF THE EXAMINATION OF WITNESSES/S. 142.

CHAPTER X OF THE EXAMINATION OF WITNESSES S. 142. When they must not be asked. Leading questions must not, if objected to by the adverse party, be asked in an examination-inchief, or in a re-examination, except with the permission of the Court. The Court shall permit leading questions as to matters which are introductory or undisputed, or which have, in its opinion, been already sufficiently proved.

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Ratanlal & Dhirajlal: Law of Evidence, Updated 23rd Edition/THE INDIAN EVIDENCE ACT (ACT 1 OF 1872)/PART III PRODUCTION AND EFFECT OF EVIDENCE/CHAPTER X OF THE EXAMINATION OF WITNESSES/S. 143.

CHAPTER X OF THE EXAMINATION OF WITNESSES S. 143. When they may be asked. Leading question may be asked in cross-examination. 1. PRINCIPLE AND SCOPE

Section 141 defines a leading question. Section 142 says that leading questions must not be asked in examination-in-chief, if objected to by adverse party. Section 143, permits leading questions in crossexamination of a witness. STEPHEN in his DIGEST OF LAW OF EVIDENCE (12th Ed., art. 140) states: "A leading question is one which either (a) suggests the answer desired, or (b) assumes the existence of disputed facts as to which the witness is to testify." BEST ON EVIDENCE (8th Ed., Section 641, p. 591) observes: that the exclusion of leading questions at the stage of Examination-in-Chief is based on two reasons:--"First, and principally, on the supposition that the witness has a bias in favour of the party bringing him forward, and hostile to his opponent. Secondly, the party calling a witness has an advantage over his adversary, in knowing before hand what the witness will prove, or at least is expected to prove; and that, consequently, if he were allowed to lead, he might interrogate in such a manner as to extract only so much of the knowledge of the witness as would be favourable to his side or even put a false gloss upon the whole." "A question is objectionable as leading when it suggests the answers, not when it merely directs the attention of the witness to the subject respecting which he is questioned. e.g., on a question whether A and B were partners, it has been held not a leading question to ask if A has interfered in the business of B...It should never be forgotten that leading is a relative not an absolute term. There is no such thing as "leading" in the abstract, for the identical form of questions which would be leading of the grossest kind in one case or state of facts, might not only be unobjectionable, but the very fittest mode of interrogation in another."26 "'Is your name so and so? Do you not reside in such a place? Are you not in the service of such and such a person? Have you not lived so many years with him?--' Under this form every sort of information may be conveyed to the witness in disguise. It may be used to prepare him to give the desired answers to the questions about to be put to him; the examiner, while he pretends ignorance and is asking for information which is in reality giving instead of receiving it. This kind of leading question has been otherwise described as a question which embodies material fact which may or may not have been before known to the witness, and admits of a conclusive answer by a simple negative or affirmative."27 "A question depends for its suggestion more in the tone of voice than in the form of words. The particle 'not' as in, 'then, did you not say that you refused the offer?' does indeed convey in itself the suggestion that an affirmative answer is desired; but the opposite form 'did you say that you refused

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the offer? by no means betrays in form such a suggestion, and depends almost wholly upon the intonation for suggestion; in other words it may or may not be leading. 28 LORD ELLEN-BOROUGH observed that a leading question is a question framed in such a manner that it throws a hint as to, or suggests directly or indirectly, the answer which the examiner desires to elicit from the witness, e.g., when a witness called to testify to an alleged assault on A by B was asked: "did you see B take a stick and strike A?" or "Did you not hear him say this?", they would be leading questions which suggest the witness the answer desired or which, embodying a material fact, admit of a conclusive answer by a simple negative or affirmative. But a question that calls for a simple 'yes' or 'no' answer is not leading....Where 'yes' or 'no' would be conclusive on any part of the issue, it would be equally objectionable: a question is objectionable as leading when it suggests the answer, not when it merely directs the attention of the witness to the subject; respecting which he is questioned.29 BELL C.J., observed: "A question is leading where the question assumes any fact which is in controversy, so that the answer may really or apparently admit that fact. Such are the forked questions habitually put by some counsel if unchecked; as, 'what was the plaintiff doing when the defendant struck him?', the controversy being whether the defendant did strike. A dull or a forward witness may answer the first part of the question and neglect the last." 30 Where the counsel for the plaintiff asked a leading question to the plaintiff in re-examination to fill up the lacuna in his examination-in-chief, it was held that its answer could not be read in evidence. 31 26 BEST ON EVIDENCE, 8th Edition p. 592. 27 BENTHAM ON RATIONALE OF JUDICIAL EVIDENCE. 28 FIELD ON EVIDENCE, 1967 Ed., Vol. 6, P. 4820. 29 Nicholas v. Dowding, (1815) 1 Stark 81. 30 Steer v. Little, 44 NH 616. 31 In the matter of : The Goods of Late Sri Kishun Lal, 2006 AIHC 3341, 3344 (paras 14 and 15) (All).

2. PROHIBITION NOT ABSOLUTE The prohibition of putting leading questions in-chief examination and re-examination is not absolute; the court may allow such questions under Order XVIII, Rule 11, C.P.C., though objected to as leading question. Discretion of the court largely rests with the trial court and depends on the circumstances, as demeanour of witnesses, the tenor of the preceding questionsetc.32 PHIPSON states that the rule is relaxed in the following cases: "As the rule is merely intended to prevent the examination from being conducted unfairly, the judge has a discretion, which is not open to review, to relax it when he considers it necessary in the interests of justice.33 It is always relaxed in three cases : introductory or undisputed matter; assisting memory; contradiction. To shorten proceedings, and bring the witness as quickly as possible to the material points of the case, it is not only permissible, but proper, to lead him as to matters which are introductory, or not really in dispute. Frequently one counsel will indicate to opposing counsel that the witness may be led up to a particular point. A question which merely directs the attention of the witness to a particular topic, without suggesting the answer required, is not objectionable. An old example from a civil case of slander that "A was a bankrupt whose name was on the Bankruptcy List, and would appear in the next Gazette", a witness who had spoken of only the first two statements was allowed to be asked "Was anything said about the Gazette?"34

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Where one witness is called to contradict another as to expressions used by the other, the witness may be asked not merely what was said, but whether the particular expressions were used, since otherwise a contradiction might never be arrived at.35 Where, however, the conversation is not proved merely for the purpose of contradiction, the latter question is improper. 36 It is sometimes appropriate to ask the witness for their version of a conversation before asking whether particular expressions were used."37 Prof. CROSS says that such exceptions are not exhaustive and there are bound to be cases which do not fall within the list of exceptions.38 BEST ON EVIDENCE (10th Edn. Section 642) observes: "The rule will be relaxed where the inability of a witness to answer questions put in the regular way, obviously arises from defective memory, on account of illness, illiteracy, old age or failing memory." ".... The object of putting leading questions to such a witness is to revive or refresh his memory by drawing his attention to a particular topic, without suggesting any answer."39 The objection to leading questions is not that they are absolutely illegal, but only that they are unfair. The court may, in its discretion, allow leading questions in proper cases. 40 The court has to determine, and not the counsel, whether a leading question should be permitted, and the responsibility for the permission rests with the court. 41 The answers to a leading question are not inadmissible though the method by which they were obtained may rob them of all or most of their significance. 42 32 Howrah Trading Co. (P) Ltd. v. 4th Industrial Tribunal, (1966) 2 Lab LJ 282; Exp. Bottomley,(1909) 2 KB 14. 33 Ex p. Bottomley,(1909) 2 KB 14 at 16; Lawder v. Lawder, (1855) 5 Ir CL R 27. 34 Rivers v. Hague, (1837) MS cited Best, S. 641. 35 Edmonds v. Walter, (1920) 3 Stark 7; Courteen v. Touse, (1807) 1 Camp 43. 36 Hallett v. Cousens, (1839) 2 M & M 238. 37 PHIPSON ON EVIDENCE, 15th Edn. (2000), P. 247 (para 11-12). 38 CROSS EVIDENCE, 6th Edn., page 247. 39 Lord ELLENBOROUGHin Acerro v. Petroni, 1 Stark 100. 40 R v. Abdulla , ILR 7 All 385, 397; see also Exparte Bottemley, (1909) 2 K.B. 14, 16. 41 Barindra v. R , ILR 37 Cal 467. 42 Moor v. Moor, (1954) 2 All ER 458.

3. CRIMINAL CASES In a criminal case, leading questions to prosecution witnesses, in order to elicit suitable answers, should not be allowed.43 The prosecutor cannot put leading questions on the material part of the evidence which he intends that the witness should give against the accused. Such leading questions offend the right of the accused to fair trial enshrined under Article 21 of the Constitution. It is not a curable irregularity.44 An answer in the affirmative to a leading question put by a person in authority renders the confession unacceptable, as such confession was given out of fear and threat, and so inadmissible in view of Section 24 of the Evidence Act .45 When an objection is taken, it would be advisable for the court to note the objection and the opinion of the court in disallowing the objection and permitting the leading question, so that the higher courts can appreciate the evidence recorded on such leading questions.

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43 Kesavan v. State of Kerala, 1960 Ker LJ 546; Chakrapani v. Chandoo, AIR 1959 MP 84. 44 Varkey Joseph v. State of Kerala, 1993 Cr LJ 2010 (para 11) : AIR 1993 SC 1892. 45 Ismail Ibrahim v. State of Goa, 1975 Cr LJ 1335 (Goa, Daman & Diu).

4. DOMESTIC ENQUIRY Where some of the questions in domestic enquiry, appeared to be leading but they were respecting the matter of record, it was observed that much legalism could not be expected from a domestic enquiry/departmental enquiry.46 46 Firestone T. & R. Co. v. Workmen, AIR 1968 SC 236.

5. SECTIONS 142 & 154 OF THE EVIDENCE ACT In considering whether the person calling a witness can cross-examine his own witness by putting leading questions, Sections 142 and 154 will have to be read together. The question would be whether such a witness should be treated as hostile, before permission is granted to put leading questions to or cross-examine his own witness. Section 142, simply states that leading questions must not be put in the examination-in-chief, except with the permission of the court. Section 154 states that the court may, in its discretion, permit the person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party. A question put in a leading form would not necessarily amount to cross-examination. But most of the questions in cross-examination would be leading questions. 47 The Calcutta High Court held that, even without granting permission under Section 154 to crossexamine the witness, the court can permit leading questions to be put under Section 142 to his witness who turns hostile.48 To put leading questions and to get a witness declared as hostile are two different things. The concept of the basic requirement for putting a leading question is to lead him to an undisputed point with the permission of the court and, if need be, with the permission of the adversary. This is just to save the time, or not to repeat what has been already conceded to, or to skip over the undisputed facts. But while declaring a witness hostile the object is to impress upon the court that the witness either from his demeanour or from his previous statement is suppressing the truth. 49 Leading questions can be freely asked in cross-examination: "First, and principally, on the supposition that the witness has a bias in favour of the party bringing him forward, and hostile to his opponent. Secondly, that the party calling a witness has an advantage over his adversary, in knowing before hand what the witness will prove, or at least is expected to prove; and that, consequently, if he were allowed to lead, he might interrogate in such a manner as to extract only so much of the knowledge of the witness as would be favourable to his side, or even put a false gloss upon the whole." 50 The reason why leading questions are allowed to be put to an adverse witness in cross-examination is that the purpose of a cross-examination being to test the accuracy, credibility and general value of the evidence given, and to shift the facts already stated by the witness, it sometimes becomes necessary for a party to put leading questions in order to elicit facts in support of his case, even though the facts so elicited may be entirely unconnected with facts testified to in an examination-in-chief. Where a general order is made that no leading questions shall be allowed in cross-examination, the order is illegal and vitiates the trial.51 With respect to the mode of conducting a cross-examination, it is admitted on all hands that leading questions may in general be asked, but this does not mean that the counsel may go to the length of putting the very words into the mouth of the witness which he is to echo back again. Neither does it sanction the putting of a question assuming that facts have been proved which have not been proved,

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or that particular answers have been given contrary to the fact. The rule ought also to receive some further qualification where the witness is evidently hostile to the party calling him, for although it appears in one case to have been laid down that leading questions may always be put in crossexamination, whether a witness be unwilling or not, some restriction should surely be imposed where the witness betrays a vehement desire to serve the cross-examination party. It is no answer to say that the party, who originally called the witness, has brought the evil on his own head, for a fraudulent witness might purposely conceal his bias in favour of one party, and thus induce the other to call him, or he might be an attesting witness, or other person whom it was necessary to examine to establish some technical part of the case. To allow such a witness to have the most favourable answers suggested to him through the medium of leading questions would be obviously unjust. 52 WIGMORE (3rd Ed., Vol. 3, Section 773) observes: "As the purpose of the cross-examination is to sift testimony and weaken its force, in short to weaken the direct testimony, it is well-settled that, on crossexamination of opponent's witness, ordinarily no question can be improper as leading. Yet, where the reason ceases, the rule ceases also; thus, where an opponent's witness proves to be in fact biased in favour of the cross-examiner, the danger of leading questions arises and they may be forbidden." The Supreme Court has held that questions in cross-examination, which would appear to the court vexatious, or misleading and not relevant, can be disallowed by the court; the cross-examination in the garb of putting leading questions shall not act ually mislead the witness. It would be travesty of justice if the presiding judge remains a silent spectator or a mere recording machine; when occasion arises he should evince active interest, by putting questions to witnesses who could not understand the question, or is misled in such a way that it has become difficult to follow the question, so that he may answer properly if he understands it in a proper way, but the judge should not unduly trespass upon the functions of a cross-examiner.53 47 Ammathayarammal v. Official Assignee H.C., Madras, AIR 1933 Mad 137. 48 Profulla Kumar v. Emperor, AIR 1931 Cal 401(FB), disagreeing with the view expressed in Bikram Ali v. Emperor, AIR 1930 Cal 139. See also Shivha Murthy Swamy v. Agodi Songanno, AIR 1969 Mys 12 and Dadabuddappa Gouli v. Kalu Kanu Gouli, AIR 2000 Kant 158 (paras 5-8 and 14). 49 Prabhu v. State of Maharashtra, ILR 1977 Bom 1505. 50 BEST, 12th Edn., S. 641, p. 561. 51 Sri L.P. v. Inspector General of Police, (1954) All LJ 316. 52 TAYLOR, 12th Edn., S. 1431, pp. 912-913. 53 Ram Chandra v. State of Haryana, AIR 1981 SC 1036.

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Ratanlal & Dhirajlal: Law of Evidence, Updated 23rd Edition/THE INDIAN EVIDENCE ACT (ACT 1 OF 1872)/PART III PRODUCTION AND EFFECT OF EVIDENCE/CHAPTER X OF THE EXAMINATION OF WITNESSES/S. 144.

CHAPTER X OF THE EXAMINATION OF WITNESSES S. 144. Evidence as to matters in writing. Any witness may be asked, whilst under examination, whether any contract, grant or other disposition of property, as to which he is giving evidence, was not contained in a document, and if he says that it was, or if he is about to make any statement as to the contents of any document, which, in the opinion of the Court, ought to be produced, the adverse party may object to such evidence being given until such document is produced, or until facts have been proved which entitle the party who called the witness to give secondary evidence of it. Explanation.--A witness may give oral evidence of statements made by other persons about the contents of documents if such statements are in themselves relevant facts. 1. PRINCIPLE AND SCOPE

This section is meant to enable parties to carry out the provisions of Ss. 91 and 92. It should be read along with those sections. It refers both to the examination-in-chief and cross-examination. A party can compel the opposite party to produce a document (or to make out a case for letting in its secondary evidence)-4)  When a witness is about to give evidence as to any (a) contract, (b) grant, or (c) other disposition of property, which is contained in a document; or 4)  When he is about to make any statement as to the contents of any document. This rule does not forbid a witness to give oral evidence of statements as to relevant facts, made by other persons, about the contents of documents. Section 144 comes into play only when the witness is asked questions, while under crossexamination, with regard to any contract, grant or other disposition of property. 54 54 Atul Bora v. Akan Bora, AIR 2007 Gau 51, 54 (para 14).

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Ratanlal & Dhirajlal: Law of Evidence, Updated 23rd Edition/THE INDIAN EVIDENCE ACT (ACT 1 OF 1872)/PART III PRODUCTION AND EFFECT OF EVIDENCE/CHAPTER X OF THE EXAMINATION OF WITNESSES/S. 145.

CHAPTER X OF THE EXAMINATION OF WITNESSES S. 145. Cross-examination as to previous statements in writing. A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. 1. PRINCIPLE AND SCOPE

Section 145 comes into play only when a witness is under cross-examination. The question of drawing attention of a witness to his previous statement does not arise until the time of cross-examination of the witness commences. Necessarily, therefore, Section 145 cannot precede Section 154; rather, it is Section 154 which will precede Section 145 i.e. only when a party is allowed to cross-examine his own witness under Section 154, that such a witness can cross-examine the witness with regard to previous statement made by the witness in writing, by drawing in terms of the provisions of Section 145, attention of the witness to his previous statement made, in writing or reduced into writing. 55 This section indicates one of the modes in which the credit of a witness may be impeached. 56 The prosecution can contradict a witness only in the manner provided by Section 145 of the Evidence Act by declaring itself as an adverse party and that can be done only when the prosecution disowns his own witness and for that it has to declare the witness hostile. Section 145 of the Evidence Act comes into effect only when the examination-in-chief is closed. The right to cross-examine his own witness can be given to the prosecution only at that stage and not prior. 57 A witness may be cross-examined as to any statements as to relevant facts made by him on a former occasion, in writing or reduced to writing, without showing the writing to him or proving the same. But if it is intended to contradict him by the writing, his attention must be called to the writing. The object of this provision is either to test the memory of a witness or to contradict him by previous statements in writing. Such writing may be documents, letters, depositions, police diaries, etc. It must be noted that the previous record should be in writing. The witness may also be contradicted by his previous verbal statements (S. 153, Exception 2). The Privy Council observed: "On general principle it would appear to be sound that, if a witness is under cross-examination on oath, he should be given the opportunity, if documents are to be used against him, to tender his explanation and to clear up the particular point of ambiguity or dispute. This is a general, salutary and intelligible rule. Fortunately, the law of India pronounces no uncertain sound upon the same matter."58 HALSBURY'S LAW OF ENGLAND (4th Ed., Vol. 17, Para 284, Page 198): "A witness may also be cross-examined as to a previous statement made by him in writing, without the writing being shown to him.59 But if it is intended to contradict him by such writing, his attention must be called to those parts

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of the writing which are to be used for that purpose, 60 and the judge may, at any time during the trial, require production of the writing for his own inspection, and he may thereupon make use of it for the purposes of the trial as he thinks fit." A witness may be cross-examined as to previous statements made by him in writing, or reduced to writing and relevant to the matter in question, without such writing being shown to him or being proved; but, if it is intended to contradict him by the writing, his attention must before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. A witness cannot be allowed to refresh his memory with his prior statement recorded under S. 161,Cr.P.C.61Section 145 applies also to a hostile witness examined by the party who calls him under Section 154.62One of the modes in which, according to the Evidence Act, the credit of a witness may be impeached, is by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted; and Section 145 gives the right to cross-examine a witness on previous statements made by him and reduced to writing, when these previous statements are relevant to the matter in issue.63 In a way this section is an exception to the general rule forbidding all use of the contents of a written document until the document itself be produced. Resort to this section is necessary only if a witness denies that he made the former statement. 64 A witness can be contradicted only when he denies his statement and not when he admits it. 65 It is clear that the first part of this section deals with cross-examination other than by way of contradiction, and the second part by way of contradiction only. It is not possible to invoke the second part without putting questions under the first.66 A witness may be questioned as to his previous written statements for two purposes; it may be to test his memory; and the very object would be defeated if the writing were placed in his hand before the questions were asked, or it may be to contradict him; and here it would be obviously unfair not to give him every opportunity of seeing how the matter really stands. The question whether there has been a compliance with the provisions of Section 145, is not one of form but of substance. If there has been substantial compliance, that is sufficient in law. 67 The object of this section is to give the witness a chance of explaining the discrepancy or inconsistency and to clear up the particular point of ambiguity or dispute. So, when a previous statement is to be proved as an admission, the statement as such should be put to the witness and if the witness denies having given such a statement, it does not amount to any admission and if it is proved that he had given such a statement the attention of the witness must be drawn to that statement. In the instant case, neither the statement of the witness was put to him nor was the witness given an opportunity to explain it.68 A witness made statement before the C.B.I. which was inconsistent with his statement before the Court but he gave a clear statement before the Court on oath that both the facts were correct. The statements independently were not ambiguous. It was held that re-examination by the prosecution to clarify the statements was not necessary and, if permitted, it would set at naught the entire crossexamination. It was held that, if the witness gives two inconsistent answers during the course of his examination before the Court, there is no question of use of Section 145 of the Evidence Act. 69 55 Atul Bora v. Akan Bora, AIR 2007 Gau 51, 56-57 (para 14). 56 Queen Empress v. Mannu, (1897) 19 All 390, 421 (FB). 57 Central Bureau of Investigation, Lucknow v. Arun Kumar Kaushik, 2006 CrLJ 2947, 2950-51 (para 12) (All). 58 Bal Gangadhar Tilak v. Srinivas Pandit, AIR 1915 PC 75 : 42 IA 135. See also Venkatlal v. Kanhayalal, AIR 1963 MP 155. 59 North Australian Co. v. Goldsborough & Co., (1893) 2 Ch 381 CA. 60 See R. v. Yousry , (1914) 11 Cr App R 13, 18.

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61 Simon v. State of Kerala, 1996 Cr LJ 3368 (paras 11 and 12) (Ker). 62 WHITLEY STOKES Vol. 2, Page 926. 63 Queen-Empress v. Mannu, (1897) 19 All 390 (42 1-2) (FB). 64 Bhagwan Singh v. State of Punjab, (1952) SCR 812 : AIR 1952 SC 214. 65 Dhanabal v. State of T.N., AIR 1980 SC 628; State of Rajasthan v. Kartar Singh, (1971) 1 SCR 56 : AIR 1970 SC 1305. 66 Kanu Ambu Vish v. State of Maharashtra, AIR 1971 SC 2256. 67 Kalluri Vema Reddy v. Reddi Gangi Reddi, AIR 1958 AP 571(DB) ; Bhagwan Singh v. State of Punjab, AIR 1952 SC 214. 68 Karan Singh v. State of M.P., (2003) 12 SCC 587, 589 (para 5). 69 Gopal Sakaru Binjewar v. State of Maharashtra, 2008 CrLJ 318(NOC) (Bom) : 2008 (1) AIR Bom R 823.

2. PREVIOUS STATEMENTS Previous statement of a witness cannot be used as substantive evidence. It can only be used by the defence to contradict or discredit any witness.70 Statements which are not fully recorded or statements which are recorded in the form of memorandum are statements falling within the ambit of this section. The statement may be either written by the witness himself or which was reduced into writing by someone else.71 The word 'statement' is used in its primary meaning as something that is stated. A witness may be contradicted by statements in a diary kept by him, though there is no question of any communication of those statements to another person. 72 Where the previous statement was recorded by an order of a court having no jurisdiction, it was held that such a statement can be made use for the purpose of Section 145, 155 and 157.73Former statement of witness to a person not legally competent to investigate, though not admissible under Section 157 of the Evidence Act can be used for contradiction under Section 145.74 Statement of a prosecution witness, recorded by a doctor as a dying declaration, is a 'previous statement' of the prosecution witness, and the accused has a right under Section 145 to cross-examine the prosecution witness with regard to it. 75 Where a person making a dying declaration survived, his declaration can be used as a previous statement, either to corroborate or to contradict his subsequent version.76 Statement though not admissible as a dying declaration under Section 32, can be used for contradiction under Section 145 and for impeaching credit of witness under Section 155.77 In a suit for ejectment alleging monthly tenancy, it was held that the defendant, in support of his plea that the tenancy was for a fixed period of 20 years, can use the previous statement in a document, though unregistered and unstamped, for the purpose of the first part of Section 145without bringing into play Section 91 of Evidence Act and Sections 49 of the Registration Act , as under the first part, it is not necessary to show the document to him. If the second part ofSection 145,is to be used, Sections 49 of the Registration Act would come into play as the document has to be shown to the witness.78 In proceedings under Section 498 -A of the against husband instituted by his wife by alleging that the husband had pressurised her to bring money from her parents, for the construction of additional accommodation certified copy of the deposition of the complainant filed by her in earlier maintenance case, cannot be used as evidence in view Section 145 of the Evidence Act, as omission of said allegation in maintenance case can not be used for the purpose of contradiction, since matter of demand of money was irrelevant in said maintenance proceeding. 79 Where the defence witness claimed that the only eye-witness who was the minor son of the deceased and had stated about the assault on his parents by the accused persons in which his mother died, had earlier stated to him that his parents fought with each other with an axe and his mother died in that incident, the Supreme Court held that as the previous statement of the eye-witness was not in writing and neither he was asked in

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the cross-examination about the alleged statement made by him, no credence can be given to the defence witness.80 Once a witness has been examined-in-chief and cross-examined fully, such witness should not be recalled and re-examined to deny the evidence, he had already given before the Court, even though the witness had given an inconsistent statement before any other Court or forum subsequently. A witness can be confronted only with a previous statement made by him. 81Where the examination-inchief of the prosecution witness was duly completed and his cross-examination was started and the case was adjourned for further cross-examination but the witness resiled from his previous statements given by him before the Court while he was subjected to further cross-examination alleging that he had given previous statements before the Court under pressure of the police without naming any police official, such previous statements of the witness was held to be admissible in evidence as the only requirement of the law is that the witness is to be confronted with his previous statement made before the Court in view of the provisions of Section 145 of the Act . 82 70 Chinnammal v. State of T.N., (1997) 1 SCC 145 : 1997 SCC 51(Cri) . 71 President, S.V.B. Mandal v. Yellaiah, AIR 1969 AP 148; Emperor v. Najibudin, AIR 1933 Pat 589. 72 Bhogilal Chunilal Pandya v. State of Bombay, AIR 1959 SC 356. 73 State of Punjab v. Vishwajit Singh, AIR 1987 P&H 126; Ram Krishun v. R., 1946 Pat 82. 74 State v. Pareswar Ghasi, AIR 1968 Ori 20. See also Krishnan v. State of Haryana, 2005 CrLJ 1909, 1912 (para 19) (P&H). 75 Ranjit Singh v. State, 1971 Cr LJ 1225(All) . 76 Siddu v. State of M.P., 1978 Cr LJ 255(NOC) (DB) (MP). 77 King Behara v. State, ILR (1968) Cut 660. 78 Remington R. v. Lilawati, 1974 Punj 350. 79 Md. Abdul Azeez v. State of A.P., 2003 CrLJ 4410, 4413 (para 6) (AP) : 2003 (1) Andh LD (Cri) 970 : 2003 (2) Andh LT (Cri) AP 84 : 2003 (2) DMC 605. 80 Majid v. State of Haryana, AIR 2002 SC 382 (paras 14, 15 and 16). 81 Mishrilal v. State of M.P., (2005) 10 SCC 701, 703 (para 6). 82 Krishan v. State of Haryana, 2005 CrLJ 1909, 1912 paras 14 to 19 (P&H).

3. MADE BY HIM The section is attracted only when two contradictory statements are made by the same witness and not when the statement of one is contradicted by the other. 83 A and M gave two separate complaints in respect of the same incident, with divergent versions, and those complaints were registered as two F.I.R.s. B was questioned during investigation; Police prosecuted B and M; it was held that no portion of B's statement could be used to contradict the statement of M in his complaint either under Section 157 or Section 145; and B not being examined as a witness in the case, his previous statement could not be used either to contradict his evidence or corroborate it.84 A witness can be confronted with the statements made in writing in his account-books; but a clerk who writes the accounts at the mere dictation of his employer cannot be so confronted. In a case, A was employed by B, at intervals of a week or fortnight, to write up B's account-books. B furnishing him with the necessary information either orally or from loose memoranda. It was held that the entries so made could not be given in evidence to contradict A under this section, as previous statements made by him

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in writing. The statements were really made, not by A but by B, under whose instructions A had written them.85 83 Mohanlal Gangaram Gehani v. Maharashtra, AIR 1982 SC 839; Biswanath Prasad v. Dwarka Prasad, AIR 1974 SC 117; B. Bhavamma v. B. Ramamma, AIR 1924 Mad 537; Mahar Rai, Bharat Rai v. State of Bihar, AIR 1968 SC 128; Chaudhari Ramjibhai Narsangbhai v. State of Gujarat, AIR 2004 SC 313, para 11 : (2004) 1 SCC 184. 84 Mahar Rai, Bharat Rai v. State of Bihar, AIR 1968 SC 128. 85 Munchershaw Bezonji v. New Dhurumsey S. & W. Company, (1880) 4 Bom 576.

4. IN WRITING OR REDUCED TO WRITING Section 145 in express terms applies to previous statements in writing, or reduced to writing only. Where the Magistrate, who exhibited the former statement of the witness, admitted that the exhibit bore no signature or seal of his office, the said exhibit thus was not proved to be the former statement of the witness.86 The English Law places statements in writing and oral statements at par when such statements are used for the purpose of contradicting a witness in cross-examination. The law as laid down by the Indian Evidence Act , is different from the English Law on this point and the principles of English Law cannot be followed when they are inconsistent with the express text of the law as contained in the Indian Evidence Act .87 Statements recorded on tape recorder are statements within Section 145. 88 There is nothing in the Evidence Act to show that the document with reference to which a witness is going to be contradicted should come from proper custody. 89 This section is attracted when a specific contradiction as to previous statement in writing is required to be taken. The Supreme Court pointed out that in certain cases omissions are also considered to be contradictions.90 86 Rajendra Singh v. State of Bihar, 2000 Cr LJ 2199 (para 4) (SC) : AIR 2000 SC 1779. 87 Ram Ratan v. State, AIR 1956 Raj 196 relying on Muktawandas Ajab Das v. Emperor, AIR 1939 Nag 13. 88 Pratap Singh v. State of Punjab, AIR 1964 SC 72; Rama Reddy v. Y.Y. Giri, AIR 1971 SC 162. 89 R. v. Raja Ram, AIR 1934 Nag 35. 90 Bishna v. State of W.B., (2005) 12 SCC 657, 671 (para 29) : AIR 2006 SC 302, relying on Shri Gopal v. Subhash, 2005 SCC 98(Cri) : JT (2004) 2 SC 158; State of Maharashtra v. Bharat Chaganlal Raghani, (2001) 9 SCC 1 : 2002 SCC 377(Cri) and Sekar v. State, (2002) 8 SCC 354 : 2003 SCC 16(Cri) : AIR 2002 SC 3667.

5. ORAL STATEMENTS There is no provision in the Evidence Act regarding the procedure to be adopted for contradicting a witness by his previous oral statement. Though the Evidence Act was intended to be a complete code of the law of evidence in respect of matters expressly provided for in it, there are some matters in respect of which, in the absence of any provisions in the Act, the wholesome principle in the English Law of Evidence, as enacted in Section 145 of that Act, may be applied. 91 91 State v. Minaketan, AIR 1952 Ori 267; explaining Muktawandas Ajab Das v. Emperor, AIR 1939 Nag 13; See CONTRARam Ratan v. State, AIR 1956 Raj 196.

6. RELEVANT MATTERS IN QUESTION

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It is no part of the court's duty to enter upon a roving enquiry in the middle of a trial on matters which are collateral to the main issue, such as whether a statement is made under threats and duress of the police. If the previous statements are alleged to have been made under police threats and duress, then court is not bound to make an enquiry.92 92 Bhagwan Singh v. State of Punjab ,AIR 1952 SC 214.

7. TO CONTRADICT Section 145 of the Evidence Act applies only to contradiction, but if there are omissions in previous statements, which do not amount to contradictions but throw some doubt on the veracity of what was omitted, the uncertainty or doubt may be capable of removal by questions in re-examination. 93 In order to see when there is a contradiction by omission, it is necessary to find out whether the two statements cannot stand together. It is also necessary to see whether the statement which the witness has made in the witness box should have been made by him while reporting the matter soon after the incident.94 Every omission does not amount to a contradiction; omissions which by necessary implication lead to conflicting versions between the statements made before the police and the court would amount to contradiction.95 Where some of the prosecution witnesses stated before the police that all the persons accused of unlawful assembly exhorted to commit the offence whereas other prosecution witnesses did not make any such allegation on the part of all the accused. It was held that omission on their part, amounted to contradiction.96 The witness in their statements before the police attributed a clear intention to the accused to commit murder but before the Court they stated that the accused was insane and, therefore, he committed the murder. It was held that in the circumstances it was necessarily implied in the previous statements of the witness before the police that the accused was not insane at the time he committed the murder. In this view, the previous statements of the witnesses before the police could be used to contradict their version in the court.97 All omissions found in the statements made to the police are not contradictions; hence it is not open to the court to make use of such omissions to show that the witness has said in the court something which he did not say before the police.98 Variations or omissions in the evidence of a witness of trivial details, would not amount to contradicting and cannot make any dent in the testimony of the witness. 99 Omission in police statements, or statements not recorded by police officer could not be used to contradict witnesses.1 The purpose of contradicting a witness is only to attack his veracity. The duty of the court is to find out if a witness, who had made a contradictory statement earlier, is telling the truth in court. It is not the duty of the court to find out whether the previous statement made by the witness was true or not. 2 Merely by putting suggestions to the witness and the witness denying the same, will not amount to putting contradiction to the witness.3 93 Laxman v. State of Maharashtra, AIR 1974 SC 308. 94 Dasu v. State of Maharashtra, 1985 Cr LJ 1933. 95 State of Hadibanelu,ILR (1973) Cut 601(DB) ; Tahsildar Singh v. State of U.P., AIR 1959 SC 1012, followed in Kazem Sk. v. State of W.B., 2008 CrLJ 4474, 4482 (para 28) (Cal); State of Assam v. Rameshwar Sarma, (1963) 15 Assam 552; Dandapani Samanta Rai v. Duryodhan Pradhan, AIR 1968 Ori 167; Dharam Vir v. State of U.P., 1990 Cr LJ 839; See also State v. Md. Misor Ali, 1965 Assam 151; Dama alias Damodar Jena v. State, ILR (1969) Cut 265. 96 Gopal v. Subhash, AIR 2004 SC 4900, para 19. 97 Dahyabhai Chhaganbhai Thakkar v. State of Gujarat, AIR 1964 SC 1563. 98 Vema Reddy v. Gangireddi, AIR 1958 AP 571(DB) ; Dukhi Dei v. State, AIR 1965 Ori 33(DB) . 99 Kishan Chand v. State of Rajasthan, AIR 1982 SC 1511. See also Shyam Singh Hada v. State, 2002 CrLJ 1437, 1448 (para 31) (Raj) : 2002 (1) WLC 382.

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1 Krushna Chandra Pail v. State, AIR 1968 Ori 172. 2 State v. Harish Kumar, (1975) 1 Delhi 182. 3 Shaik Subhani v. State of A.P., 2000 Cr LJ 321 (para 24) (AP).

8. OPPORTUNITY TO EXPLAIN CONTRADICTION There can be no hard and fast rule as regards compliance with the requirements of Section 145. All that is required is that the witness must be treated fairly and be afforded a reasonable opportunity of explaining his contradictions, after his attention has been drawn to them in a fair and reasonable manner. The matter is one of substance and not of mere form. 4 There is a cardinal distinction between a party to the proceeding who is the author of a prior statement and a witness who is examined and is sought to be discredited by use of his prior statement. In the former case, an admission by a party is substantive evidence, if it fulfils the requirements of Section 21; in the latter case a prior statement is used to discredit a witness, and it does not become substance evidence. In the former case, there is no requirement that the statement containing the admission has to be put to the party, because it is evidence proprio vigore, whereas in the latter case, the court cannot be invited to disbelieve a witness on the strength of a prior contradictory statement made by him, unless it has been put to him as required by Section 145. 5 A witness cannot be disbelieved without his attention being drawn to the documents inconsistent with his deposition, even if the documents are produced after the examination. In such a case, he should be recalled for further cross-examination.6 A previous statement recorded under Section 164,Cr.P.C. should be put to the witness during his cross-examination before the tribunal or Magistrate, giving him an opportunity to explain contradiction between his evidence and statement. 7 Where A stated that he was told something by B who was examined earlier, the statement of A is not admissible as it is hearsay, unless B is recalled and given an opportunity to explain it. 8In an application by the husband under Sections 9 of the Hindu Marriage Act , the statements of the wife in proceedings underSection 100,(old) Cr.P.C. (nowSection 99) before a Magistrate, are inadmissible unless those statements are put to the wife to contradict her under Section 145. 9 Where statements of witnesses recorded were brought on record on admission of the witness in cross-examination that they had made those statements, but in a subsequent trial, they were not put to the witnesses and no opportunity was given to explain them, these statements are not to be relied on for contradiction as the provisions of Section 145 are not complied with. 10 Where the witness, having more than one opportunity to explain his statement in a previous suit, does not avail himself of it, his deposition in the previous suit is admissible to prove an admission made by him. 11 Where a witness is not contradicted by his attention being called to particular parts of his previous report, it cannot be said that the statement made by him on matters other than those which were put to him was unreliable merely because the details referred to by him in court are different from those mentioned by him in his previous report.12 Where documents are used for the purpose of contradicting a witness, without calling his attention to the portions of the documents so used, no reliance can be placed on such documents.13 Statement of a witness made in a previous case can be used in subsequent case, to contradict him or to impeach his character; but the witness's attention should be drawn to his previous statements.14 It is necessary to call the attention of the witness to those parts of the two statements separately to point out the omissions when they are sought to be used for contradiction.15 Where the purpose of the production of the document at the time of cross-examination of a witness seemed to have been well understood by him, and from the record of his deposition it was manifest that after being shown the document, he was directly asked whether it was not a fact that he was not at a particular place on the alleged date as was clear from the document, and where on reexamination no attempt was made to elicit any explanation, it was held the witness was properly contradicted.16

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When the witness is contradicted by his previous statement, then that part of the statement which has been put to the witness will be considered along with the evidence to assess the veracity of the witness. The whole of the previous statement, however, cannot be treated as substantive evidence. 17 In order to attract the applicability of Section 145, it is essential that the attention of the witness is invited to only those passages in his previous statement which clearly contradict some portions of the testimony of the witness before the court.18 When the witness in the Sessions Court who was confronted with his earlier statement in the committal court, admitted that his earlier statement was false, as it was made under police pressure, it was held that there was sufficient compliance with Section 145 though earlier statement was read over in extenso and his attention was not drawn to each sentence.19 When the prosecution cross-examines a witness and asks him, if he made certain statements before the police during investigation or before a Magistrate under Section 164,Cr.P.C. and the witness denies it, it is the duty of the prosecution to confront him with those statements or get them marked as exhibits, so that the witness might be afforded an opportunity either to explain the contradiction or deny them.20Under Section 145 of Evidence Act, it is necessary that witness should be confronted if his evidence is to be attacked by a previous statement, but it is not necessary where a person is prosecuted under Section 193,I.P.C. for perjury; the fact that in the judicial proceeding in which he is alleged to have given his false evidence he was not confronted with the previous statement, will not vitiate his prosecution.21 Where a complainant examined in court, was not confronted with his previous inconsistent statements, the defence cannot take advantage of the inconsistency, if any, in revision, as he had no opportunity to explain at the trial. 22 If the statement of the witness is too long and only one or two statements in it are to be used for contradiction, mere reading the whole lengthy statement may confuse the witness and it would not be a fair method of drawing attention of the witness. So, it would be proper to put fact by fact in such statement so as to give a fair opportunity to the witness to explain. 23 Where copies of the approver's statement and confession recorded, were not supplied to the accused for cross-examination, it was held that, though the trial could not be said to be illegal the accused had been considerably prejudiced by being deprived of valuable materials for cross-examination of the approver, for the purpose of testing his reliability. 24 4 Bhagwan Singh v. State of Punjab, AIR 1952 SC 214; Kavuri Vbrtaateswarlu v. State of A.P., 1981 Cr LJ 133(NOC) (AP) (DB); Poolyani Joga v. State of M.P., 1964 (1) Cr LJ 455(DB) . 5 Tapan Dass v. Sosti Dass, AIR 1986 Cal 390; Biswanath Prasad v. Dwarka Prasad, AIR 1974 SC 117; Bhagrat Singh v. Bhairathi, AIR 1966 Sc 405; Shrilal v. State, AIR 1963 M.P. 155; Kali Pada Das v. State, AIR 1058 Cal 186; Ganakanta Das v. State of Assam, 1990 Cr LJ 219(Gau) (DB); Chanhoo Mahto v. Jang Bahadur Singh, AIR 1957 Pat 293(DB) ; Arjun Mahto v. Monda Mahatan, AIR 1971 Pat 215; Veeraiah v. Sonde Mall, ILR 1963 AP 754; Lal Singh v. Guru Granth Saheb, AIR 1957 Pepsu 101(DB) ; Veerbasavaadhya v. Devotees of Lingadagudi Mutt, AIR 1973 Mys 280; Durga Prasad v. Anandi Kuer, (1960) 2 All 277; University of Punjab v. P.C. Handa, 1971 Punj 177; Abdul Majid v. King, AIR 1950 Cal 165; Bejoy Chand Patra v. State, AIR 1950 Cal 363. 6 Naba Kumar Das v. Rudra Narayan, AIR 1923 PC 95; Goli Ramaswami v. Narla Jagnnadha Rao, AIR 1962 A.P. 94. 7 Bidya Bhushan Moha Patra v. State of Orissa, AIR 1960 Ori 68(DB) ; State of Orissa v. Bidya Bhushan Mohapatra, AIR 1963 SC 779; In re, Saibanna Tippanna,AIR 1966 Mys 248; Tahsildar Singh v. State of U.P., AIR 1959 SC 1012 : 1959 Cr LJ 1231; K.K. Sharma v. State of Rajasthan, 1998 Cr LJ 2609 (para 16) (Raj). 8 Auadh Behari Sharma v. State of M.P., AIR 1956 SC 738. 9 Gurdev Kaur v. Sarwan Singh, AIR 1959 Punj 162. 10 Salig Ram v. State of U.P., AIR 1956 All 138. See also Rajendra Singh v. State of Bihar, 2000 Cr LJ 2199 (para 4) (SC) : AIR 2000 SC 1779. 11 Yenkat Lal v. Kanhiyalal, AIR 1963 MP 155; Pannalal v. Union of India, AIR 1956 VP 26. 12 Baga Bharti v. Sarkar, AIR 1950 Raj 10. 13 Yeeraiah v. Sonde Mall, ILR 1963 AP 754; Chunilal v. Hartford Fire Insurance Co. Ltd., AIR 1958 Punj 440; Jayalakshmi Devamma v. Janardhan Reddy, AIR 1959 AP 272; Bal Gangadhar Tilak v. Srinivas Pandit, AIR 1915 PC 7; Ajodhia Prasad Bhargava v. Bhawani Shankar Bhargava, AIR 1957 All 1.

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14 Doman Mahton v. Surajdeo Prasad, AIR 1970 Pat 95. 15 Ghanshyam v. State of M.P., 1990 Cr LJ 1017(MP) . 16 Baikuntha Nath Chattoraj v. Prasanna Moyi Debya, AIR 1922 PC 409. 17 Som Nath v. Union of India, AIR 1971 SC 1910; Kanu, Ambu Yish v. State of Maharashtra, AIR 1971 SC 2256; Melappa v. Guramma, AIR 1956 Bom 129. 18 1975 (2) Cr LT 285 (HP); Bhagwan Singh v. State of Punjab, AIR 1952 SC 214; Emperor v. Zawar Rahman, ILR 31 Cal 142(FB) ; Emperor v. Rahenudda Mondal, AIR 1944 Cal 323. 19 State of Rajasthan v. Kartar Singh, AIR 1970 SC 1305. 20 In re, Saibanna Tippanna, AIR 1968 Mys 248. 21 Ishar Chand v. State, AIR 1951 Punj 131. 22 Narasingo Maharana v. Chaitanya Sahu, AIR 1969 Ori 59. 23 Bhagwan Singh v. State of Punjab, AIR 1952 SC 214; Ramaswami v. Jagannadha Rao, 1962 AP 94; Jatindra v. Sushilendra, AIR 1965 Cal 328; Inder Deo v. State, AIR 1959 All 238. 24 State of Kerala v. Thomas Cherian, 1982 Cr LJ 2303(DB) Ker.

9. PARTY'S ADMISSION Where a party appearing as defendant in a suit who had made an admission in a plaint in a prior suit was not examined as witness, Section 145 cannot be invoked but previous statement can be proved as admission against such party under Section 21.25 Where the party had referred to some of the documents in his examination-in-chief, it could not be said that his attention was not drawn to the contradictions contained in those documents. 26 Document contrary to previous admission cannot be used against the party unless opportunity to explain is given.27 When a document is admitted by the opponent's counsel to question the opponent on the admission, when the opponent is in the witness box, the admission need not be put to him before using it against him for contradiction.28 The purpose of contradicting the witness under this section is very much different from the purpose of proving the admission. Admission is substantive evidence of the fact admitted, while a previous statement used to contradict a witness does not become substantive evidence and merely serves the purpose of throwing doubt on the veracity of the witness. 29 25 Harihar v. Nabakishore, AIR 1963 Ori 45(DB) . 26 Shiv Ram v. Shiv Charan Singh, AIR 1964 Raj 126(DB) ; Lal Singh v. Guru Granth Saheb, AIR 1951 Pepsu 101; Ram Kishun v. Kausal Kishore, AIR 1958 Pat 294; Narayan v. Gopal, AIR 1960 SC 100; Bal Gangadhar Tilak v. Srinivas Pandit, AIR 1915 PC 7. 27 Jatindra Nath v. Sushilendra Nath, AIR 1965 Cal 328; A.H. Abdulla v. State of Kerala, 1 981 Cr LJ (NOC) 55 (Ker). 28 Ajodya Prasad v. Bhavani Shankar, AIR 1957 All 1(FB) ; Makhea Kumbhar v. Jaquli Kumbhar, ILR 1966 Cut 483. 29 Bharat Singh v. Bhagirathi, AIR 1966 SC 405, 410.

10. INQUEST REPORT An inquest report is admissible except under Section 145 of the Evidence Act for contradiction. 30 It is not a substantive piece of evidence and can be used only for corroboration for evidence of the panch witness and not for convicting the accused.31 Inquest report cannot be used to contradict the

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prosecution witnesses to whom the dying declaration was made. 32 Where the statements recorded during the course of inquest which were not filed alongwith the charge-sheet by the prosecution, it was held that the prosecution could be compelled to produce the same on the request of accused for the purpose of contradicting in cross-examination of the witnesses as the statements recorded during inquest continue to remain the previous statement of such witnesses. 33 Statement in panchanama can be used in evidence only for contradicting witness whose statement is contained in the panchanama. But his attention must, before if can be so used, be called to parts sought to be used for contradicting him. 34 30 Pandurang v. State of Hyderabad, AIR 1955 SC 216; See also Ramanand v. State of H.P., ILR 1974 HP 509(DB) . 31 Guggillasanthosh Reddy v. State of A.P., 2001 Cr LJ NOC 110(AP) : (2001) 1 Andh LT 76(Cri) . 32 George v. State of Kerala, AIR 1998 SC 1376 : 1998 Cr LJ 2034. 33 Santosh v. State of Chhattisgarh, 2002 CrLJ 1180, 1184 (paras 10 & 11) (Chhat) : 2001 CgLJ 216. 34 Kanu Ambu Vish v. State of Maharashtra, AIR 1971 SC 2256.

11. F.I.R. The first information report (FIR) is not substantive evidence. It is an information of a cognizable offence given under Section 154,Cr.P.C. statements made in it can be used for contradicting and discrediting a witness underSection 145.35It can only be used to corroborate the statement of the maker under Sections 161 or to contradict him under Sections 145 of the Indian Evidence Act . It can neither be used as evidence against the maker at the trial, if he himself becomes the accused nor to corroborate him or contradict other witnesses.36 Where the person who lodged the F.I.R. was not examined as he had died during the trial, the contents of the F.I.R. could not be used as substantive piece of evidence. It could only be used to corroborate or contradict the maker, it he had been examined.37 The first information report recorded under Section 154,Criminal Procedure Code, may be used to contradict the informant under this section. 38 It is essential that the attention of the witness should be drawn to those parts of the document, which it is intended to use for the purpose of contradicting him, in order that he may be given an opportunity to furnish a suitable explanation with regard to the alleged contradictions. Statements in the first information report cannot be used for the purpose of discrediting any witness, other than the first informant, for such use is in effect to treat the first information report as substantive evidence in the case. 39 The fact that the eye-witness was not confronted with the FIR or with the additional police statement, would not be fatal to the prosecution case and the accused cannot claim benefit from the said omission as an FIR is not a substantive piece of evidence of facts stated therein nor contents of the report can be used to furnish testimony against the accused. 40 F.I.R. in case of dacoity has little value.41 The allegations made in the F.I.R. are not evidence. Naming some of the accused in the F.I.R. and not naming them during deposition casts a serious doubt. 42 35 Nankhu Singh v. Bihar, AIR 1973 SC 491; Shanker v. State of U.P., AIR 1975 SC 757; Hasib v. State of Bihar, AIR 1972 SC 283; Gunanidhi Sundara v. State of Orissa, 1984 Cr LJ 1215(Ori) ; Pundalik v. State, AIR 1957 MB 72; Bhagirathi Burhia v. State, AIR 1965 Ori 99(DB) ; In re, Kalu Singh Motisingh, AIR 1964 MP 30(DB) ; Bir Singh v. State of H.P., ILR 1974 HP 948; Chaat Ram v. State of Haryana, (1975) 1 Punj 327; State v. B.K. Mishra Commissioner of Hindu Relation Endoments, Orissa, ILR 1970 Cut 1130; Bijoy Singh v. State of Bihar, (2002) 9 SCC 147 (para 5) : AIR 2002 SC 1949 : 2002 CrLJ 2623; Andrews v. State of Kerala, (2002) 10 SCC 126 (para 4); Asharam v. State of M.P., (2007) 11 SCC 164, 169-72 (para 18) : AIR 2007 SC 2594; Dharma Rama Bhagare v. State of Maharashtra, (1973) 1 SCC 537 : AIR 1973 SC 476. 36 Ravi Kumar v. State of Punjab, (2005) 9 SCC 315, 320 (para 15) : AIR 2005 SC 1929 : 2005 CrLJ 1742. 37 Harkirat Singh v. State of Punjab, AIR 1997 SC 3231.

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38 Mani Mohan Ghose v. Emperor, (1931) 58 Cal 1312. 39 Emperor v. Rahenuddin Mondal, (1943) 2 Cal 381; Nisar Ali v. State, (1957) 1 All 361(SC) : AIR 1957 SC 366. 40 Ibrahim Khan Pirkhan Pathan v. State of Maharashtra, 2003 CrLJ 1802, 1805, para 8 (Bom) : 2003 (3) All CrLR 465 : 2003 (2) Cur CrR 88. 41 Ram Rao Ekoba v. Crown, AIR 1957 Nag 237. 42 Viswanathan v. State, (2008) 5 SCC 354, 359 (para 16) : AIR 2008 SC 2222.

12. POLICE DIARIES "It is the absolute duty of Judges and Magistrates to entirely disregard all statements and entries in special diaries as being in any sense legal evidence for any purpose, except for one solitary purpose of contradicting the Police Officer who made the special diary when they do afford such a contradiction; and even in that case they are not evidence of anything except that such Police Officer made the particular entry which is at variance with his subsequently given evidence, they are not evidence that what is stated in the entry was true or correctly represents what was said or done.43"Where the Police Officer who made the special diary is allowed to refresh his memory and does look at an entry in the diary for the purpose of refreshing his memory, the provisions of Sections 161 of the Indian Evidence Act ...apply, and the accused or his agent is entitled to see such entry in the special diary and to cross-examine such Police Officer thereupon. There is no provision in Section 172 of the Code of Criminal Procedure , 1973 enabling any person other than the Police Officer who made the special diary to refresh his memory by looking at the special diary and the necessary implication is that a special diary cannot be used to enable any witness other than the Police Officer who made the special diary to refresh his memory by looking at it. This is in truth a general principle of law. The Criminal Court, but not an accused person or his agent unless the Police Officer has been allowed to look at the diary in order to refresh his memory, can use the special diary for the purpose of contradicting the Police Officer who made it, but before doing so the Court must comply with the specific enactment of Sections 145 of the Indian Evidence Act ..and call the attention of the Police Officer to such parts of the special diary as are to be used for the purpose of contradicting him, otherwise such a use of the special diary would be illegal. There is no provision in Section 172 of the Code of Criminal Procedure enabling the Court, the prosecution or the accused to use the special diary for the purpose of contradicting any witness other than the Police Officer who made it, and the necessary implication is that the special diary cannot be used to contradict any witness other than the Police Officer who made it. Sections 145 of the Indian Evidence Act ...does not either extend or control the provisions of Section 172 of the Code of Criminal Procedure . It is only if the Court uses the special diary for the purpose of contradicting the Police Officer who made it that Sections 145 of the Indian Evidence Act ...applies, and in such case it applies for that purpose only, and not for the purpose of enabling the Court or a party to contradict any other witness in the case, or to show it or any part of its contents to any other witness. No reading of S. 172 of the Code of Criminal Procedure consistent with the rules construction and a knowledge of the English language is possible by which the special diary is to be used to contradict any person except the Police Officer who made it. It is not enacted in S. 172 of the Code of Criminal Procedure by reference to Sections 145 of the Indian Evidence Act ...or otherwise that if the special diary is used by the Court to contradict the Police Officer who made it, it may thereupon or thereafter be used to contradict any other witness in the case.44The Privy Council has approved of this ruling in a criminal appeal from the judgment of the Court of the Judicial Commissioner of the Central Provinces. The Judicial Commissioner admitted in a murder trial statements made by witnesses to the police and entered in the police diary. The Judicial Committee observed that the Judicial Commissioner went wrong in doing so and held that a diary made by the Police Officer, under S. 172 of the Code of Criminal Procedure , might be used under that section to assist the Court which tried the case by suggesting means of further elucidating points which need clearing up, and which were material for the purpose of doing justice between the Crown and the accused, but not containing entries which would by themselves be taken to be evidence of

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any date, fact, or statement contained in the diary, and that the Police Officer who made the diary entry might be confronted with it, but not any other witness. 45 Once the diary is used, where statements under Section 161 were recorded, the accused will have a right to inspect and obtain copies of such portions of the diary, for using under Section 145 and 159 of this Act .46 The only use to which any part of the statement made by the witness to the police and recorded in the police diary can be put, is to contradict the witness.47 It was held by the Allahabad High Court that the entries of a case diary could not be relied upon by the prosecution as substantive evidence. It can only be used for contradicting prosecution witnesses.48 In trials arising within the then Presidency Town of Calcutta, it was held that the accused cannot get copies of statements of witnesses recorded in police diaries as a matter of course; but in suitable cases the Magistrate can order the granting of such copies under the provisions of Section 145 read with Section 165 of the Evidence Act, without making the accused go through the formalities of Section 163 of the Act . In this view of the matter, the practice referred to in the order of the Presidency Magistrate that, in the Presidency Town of Calcutta, applications for copies of statements in police diaries were rejected were held not to be a correct practice and that the practice required modifications.49 If the case diaries are used by the police officer who made them to refresh his memory, or if the Court uses them for the purpose of contradicting such police officer, the provisions of Section 145 of this Act shall be complied with. The Court is empowered to call for such diaries not to use them as evidence but to use them as aid to find out anything that happened during the investigation of the crime. 50 43 PER EDGE, C.J., in Queen-Empress v. Mannu, (1897) 19 All 390, 412 (FB); Dadan Gazi v. Emperor, (1906) 33 Cal 1023, 1026, 1027. 44 PER EDGE, C.J. in Queen-Empress v. Mannu, (1897) 19 All 390, 393, 394 (FB). 45 Dal Singh v. Emperor, AIR 1917 PC 25 : (1917) 19 Bom LR 510 : 44 IA 137 : 44 Cal 876; King-Emperor v. Ngu Lun Thoung, (1935) 13 Ran 570(FB) ; Ahmed Miya v. Emperor, (1944) 1 Cal 133. 46 See Commentary under Section 159 and 160 of this Act . 47 State of M.P. v. Kalu, AIR 1959 MP 391; Ram Bali v. State, AIR 1952 All 289; Sakha Wat Imami v. Emperor, AIR 1937 Nag 50. 48 Bandhu v. State of U.P., 1997 Cr LJ 3010(All), distinguishing Kanu Ambu Vish v. State of Maharashtra, 1971 SCC 211(Cri) : AIR 1971 SC 2256 and Malkiyat Singh v. State of Punjab, 1991 SCC 976(Cri) . See also State of Kerala v. Babu, 1999 Cr LJ 3491 (paras 5 and 12) (SC) : AIR 1999 SC 2161. 49 Natabar Jana v. State, AIR 1955 Cal 138(DB) . 50 Sidharth v. State of Bihar, (2005) 12 SCC 545, 556 (para 17).

13. STATEMENTS TO POLICE As regards the contradiction of a witness by a previous statement, S. 162 of the Code of Criminal Procedure , 1973 sanctions a very extraordinary procedure. This section in its ordinary application is intended for the purpose of such contradiction by a written previous statement for which the witness is responsible. This cannot in terms apply to a statement recorded under S. 161 of the Code of Criminal Procedure , for the record of which he cannot be held to be directly responsible and which he does not sign. The Legislature, however, intended that the principle of this section should apply and that attention of the witness should be called to those parts of diary entries by which it is intended to contradict him by proving that they represent the actual statement of the witness to the police. In many cases the investigating officer may be able to prove that the writing is an accurate record or at any rate, a correct summary of the statements made to him by the witness during the course of the investigation. In that event, the writing comes on the record as proof of the statement of the witness. 51

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This section, which has to be read with S. 162 of the Code of Criminal Procedure , quite clearly indicates that the attention of a witness is to be called to the previous statement before the writing can be proved. If the witness admits the previous statement, or explains any discrepancy or contradiction, it becomes unnecessary for the statement thereafter to be proved. On the other hand, if the statement still requires to be proved that can be done by calling the person before whom the statement was made52 A statement made by a witness to a Police Officer in the course of an investigation can be used only to contradict him in the manner provided by this section and for no other purpose. 53The attention of the witness must be drawn to those parts of his statement before the police by which it is sought to contradict him and he must be given a clear opportunity to explain the inconsistency. The statement of informant recorded under Section 161 of CrPC in a murder case giving details of the incident with specific overt act of the individual accused, was held to be inadmissible in view of Sections 145 of the Indian Evidence Act .54 The whole of his statement before the police does not become admissible in evidence, but only that part of it to which his attention has been called and, therefore, that part alone should be exhibited or admitted into evidence. 55 Section 162 of the Criminal Procedure Code, 1973 provides that the accused may be furnished with a copy of the statement of a witness, "in order that any part of such statement, if duly proved, may be used to contradict such witness in the manner provided by Sections 145 of the Indian Evidence Act , 1872." The words "if duly proved" clearly show that the record of the statement cannot be admitted in evidence straightway but that the officer before whom the statement was made should ordinarily be examined as to any alleged statement or omitted statement that is relied upon by the accused for the purpose of contradicting the witness. The provisions of Section 67 of the Evidence Act apply to this case, as well as to any other similar case. UnderS. 162of the Criminal Procedure Code it is not permissible for statements to the police, whether oral or written, to be put in evidence, except with leave of the Court in order to corroborate a prosecution witness, or to contradict a defence witness. A statement to the police can only be used for one purpose, and that is, by the accused to contradict a prosecution witness in the manner provided by this section. 56 The only way a witness can be contradicted by a statement made to the police, under the provisions of S. 162 of the Criminal Procedure Code, is to prove that portion of his statement to the police which contradicts his evidence and to put it to him under this section so that the witness may be given an opportunity of explaining the contradiction; statements made to the police cannot be used at a trial in any other way. 57 The statements made by witnesses during police investigation are not substantive evidence. It may be considered by the Court only with a view to weighing the evidence act ually adduced in Court. 58 When a witness admits having signed his previous statements that is enough to prove that some statement of his was recorded and he had appended his signature thereto. Such statements can at best be used to contradict him in the cross-examination of such a witness under Section 145 when he gives evidence at the trial of the accused. When the witness is contradicted by his previous statement, then that part of the statement which has been put to the witness will be considered along with the evidence to determine his veracity. The whole of the previous statement, however, cannot be treated as substantive evidence.59 Statements made before the police during the course of investigation can be used in civil proceedings.60 51 Heramba Lal Ghosh v. Emperor, (1945) 1 Cal 326. 52 Muzaffar Khan v. Crown, (1939) 20 Lah 509 : AIR 1939 Lah 268. 53 Prakash Chand v. State (Delhi Admn.), 1979 Cr LJ 329 : AIR 1979 SC 400; Santha Yeerappa Aradhya v. State, ILR (1966) Mys. 1222; Punjab State v. Ramji Dass, (1969) 72 Punj LR 137; Dharmarajan v. State, 2002 CrLJ 2571, 2574 (para 13) (Ker) : ILR (Ker) 2002 (2) Ker 235 : 2002 (1) Ker LJ 555 : : 2002 (2) Ker LT 161 : 2002 (3) Rec CrR 199. 54 Public Prosecutor, High Court of A.P., Hyderabad v. Yendela Somaiah @ Medicherla Somaiah, 2002 CrLJ 29(NOC) : (2001) 2 Andh LT 94(Cri) . 55 Balak Ram v. State, (1953) 1 All 197. 56 Emperor v. Yithu Balu, (1924) 26 Bom LR 965 : AIR 1924 Bom 510; Emperor v. Shaikh Usman, (1927) 52 Bom 195 : 29 Bom LR 1581 : AIR 1928 Bom 23; Azimuddy v. Emperor, (1926) 34 Cal 237 : AIR 1927 Cal 17; Emperor v. Nga Tha

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Din, AIR 1926 Rangoon 166; dissented from Yenkatasubbaiah v. King Emperor, AIR 1925 Mad 579; State v. Rajendra Singh, ILR (1971) Cut 752; Bai Nanda v. Patel Shivabhai, ILR (1966) Guj 500; Madhav Rao v. Md. Abdul Matin, (1977) 2 Kant 1403 : 1978 Cr LJ 295; In re, Kalu Singh Moti Singh, AIR 1964 MP 30(DB) ; State of Hyderabad v. Annantha Reddy, AIR 1953 Hyd 133(DB) ; Satish Kumar v. State, 1996 Cr LJ 265 (paras 21 and 22) (Del). 57 Crown v. Ibrahim, ILR 8 Lah 605; Gopi Chand v. Crown, (1930) 11 Lah 460; Narayana v. King-Emperor, (1932) 56 mad 231. 58 Baladin v. State of U.P., AIR 1956 SC 181, 187 (para 11). 59 Som Nath v. Union of India, AIR 1971 SC 1910. 60 Ranjit Satardekar v. Joe Mathias, 2006 CrLJ 2237, 2238 (para 4) (Bom).

14. STATEMENT CAN BE USED ONLY TO CONTRADICT Statements of witness made during investigation can be used only for contradicting witness and cannot be used for seeking assurance for prosecution story. 61 When the court did not allow cross-examination of witness by defence, with reference to the statement made by the witness to the police, then such statement cannot be accepted as corroborating the evidence of another witness.62 The witnesses, in their statements before the police, attributed a clear intention to the accused to commit murder, but before the Court they stated that the accused was insane and therefore, he committed the murder. It has held that in the circumstances, it was necessarily implied in the previous statements of the witnesses before the police that the accused was not insane at the time he committed the murder. In this view, the previous statements of the witnesses before the police could be used to contradict their version in the Court. 63 Cross-examination of defence witness on his previous statement to the police is not permissible. It is unfortunate that our laws do not admit of cross-examination of such a witness in respect of statements made before the police.64 61 Sat Paul v. Delhi Admnistration, AIR 1976 SC 294. 62 Badri v. State of Rajasthan, AIR 1976 SC 560; Sagar Chandra Saha v. State, AIR 1962 Cal 85(DB) . 63 Dahyabhai v. State of Gujarat, AIR 1964 SC 1563; relying on Tahsildar Singh v. State of U.P., AIR 1959 SC 1012. 64 Laxman Kalu Nikalje v. State of Maharashtra, AIR 1968 SC 1390; Iqbal Singh v. State, 1981 Cr LJ 512(Del) ; Narayanan v. Krishnan, 1981 Cr LJ 563(Ker) .

15. STATEMENT UNDER Section 161,CR.P.C. A statement under Section 161,Cr.P.C. is not a substantive piece of evidence. In view of the proviso toSection 162(1),Cr.P.C., the said statement can be used only for the limited purpose of contradicting the maker thereof in the manner laid down in the said proviso. 65 65 Rajendra Singh v. State of U.P., (2007) 7 SCC 378, 385-86 (paras 7 and 11) : AIR 2007 SC 2786. See also Ramesh v. State of M.P., 2008 CrLJ 1559, 1567 (para 25) (MP).

16. STATEMENTS UNDER Section 162,Cr.P.C. Statement of court witnesses made to the police under Section 162,Cr. P.C. cannot be used by the prosecution to contradict them even though they were cited as prosecution witnesses. 66 In view of the special mention in the proviso to Section 162(1),Cr.P.C. a statement under that section cannot be used for corroboration of a prosecution or defence witness or even a court witness. 67

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A statement under Section 162,Cr. P.C. can be used by the accused and, with the permission of the court, by the prosecution only for the purpose of contradicting the witness who has made such a statement in the manner provided by Section 145 of the Evidence Act; when any part of such statement is so used, any part thereof may also be used in the re-examination of such a witness, but only for the purpose of explaining any matter referred to in the cross-examination. The question whether the statements were honestly and faithfully recorded by the Police Officer is entirely irrelevant.68 It is permissible to use the statements made under Section 162(1),Cr. P.C. to the police, when the prosecution witness turns hostile, for the purpose of contradicting the witness with reference to the statements.69 Marking of the whole statement given to the police by the hostile witness, is not contemplated by Section 145. It is only such statements as are proved to be contradictory to his evidence are to be marked as provided by the proviso to Section 162(1),Cr.P.C. 70 Witness need not be declared hostile when the prosecution seeks permission to cross-examine its own witness. The prosecution can be allowed to contradict him under Section 162(1),Cr.P.C.71 The contradiction found in the evidence of hostile witness shall not be used for corroborating the evidence of other witnesses. 72 The statement recorded by a Police Officer under Section 162,Cr.P.C. could be used in a Civil Proceeding under Section 145 of the Act . The witnesses can be confronted with the statements and if need be, the officers who took down the statements may be summoned to prove those statements. 73 Notes on which site plan was prepared by Investigating Officer in accordance with the various situations pointed out to him by witnesses can be used only to contradict a witness under Section 162,Cr.P.C.74 Statement made during investigation may be used to contradict the maker thereof. 75 The portions of unsigned statement recorded by the investigating agency under Section 162,Cr.P.C. can be used during the course of examination of the witness either for the purpose of contradiction or for corroboration.76 Cross complaint by accused to police can be used to corroborate or contradict the accused, if the accused gives evidence in court.77 There is no presumption in law that a statement recorded by the Investigating Officer under Section 161,Cr.P.C. is truthful. The purpose of contradictions between the evidence of a witness before the court and the statement recorded underSection 161,Cr.P.C. is primarily to shake the credit of the witness, it is only to put the court on guard, to scrutinise the evidence with greater care. 78 Section 145 does not help the accused to obtain copies of the statements of witnesses made during investigation of an offence, though it enables him to make use of the statements if he happens to be in possession of them.79 After a final report by police finding no case against accused, there was trial on the basis of a subsequent private complaint. It was held that Section 162,Cr.P.C. still applies and the accused can get copies of statement made to police by prosecution witness for contradicting them. 80 If the evidence of the witness is liable to be contradicted by the statement made by him to the Police Officer, it is the duty of the Police Officer to provide such a statement for the proper administration of justice.81 If the previous statements of prosecution witnesses, which are reduced into writing are not in the possession of prosecution but are with a third party, the accused has right to summon them from the third party.82 In view of the provisions of Section 162,Cr.P.C. and Section 145 of the Evidence Act, it is absolutely clear that the Court should faithfully record the contradictions brought out in the evidence of the witnesses, and there is no question of recording the gist of the statement. 83 Any other procedure is not countenanced by the Evidence Act, more so as this rule of confronting a witness with a portion of the proved statement recorded by the Police Officer finds special mention in the proviso to sub-Section 1 of Section 162,Cr.P.C. 84 Contradictions and omissions, which were not proved in the manner laid down in Section 145, cannot be made use of by the defence. Any other construction on the express language of Section 162,Cr.P.C. and Section 145, Evidence Act, is not permissible and would be fraught with a risk of miscarriage of justice. 85 Written report made by the witness to police was read out to him during his examination-in-chief. Parts of the report which are relied upon by defence should be duly proved, as required under proviso to Section 162(1),Cr.P.C. before they could be used for contradicting the witness. 86If it is brought out that the statement which is given in the court is totally absurd, having regard to his police statement, a person is required to be

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given a chance of explaining as to what he wanted to say or what was his explanation is regard to the contradiction. Section 162of the Cr.P.C. requires that the contradiction is to be elicited in the manner laid down by Section 145 of Evidence Act .87 When the statement of a witness made to police under Section 161,Cr.P.C. is not put to him according to the provisions of Section 145 Evidence Act during the trial, it cannot be taken into consideration.88 Contradictions and omissions which are not proved in the manner laid down in Section 145 cannot be permitted to be made use of by the defence. 89 66 In re, Vajrala Kota Reddi, AIR 1960 AP 76. See also Kemparaju v. State, 2000 Cr LJ 4734 (para 25) (Kant); Ramesh v. State of M.P., 2008 CrLJ 1559, 1567 (para 25) (MP). 67 Tahsildar Singh v. State of U.P., AIR 1959 SC 1012; See also Surya Rao v. Janakamma, AIR 1964 AP 198. In re, Jogindham, (1962) 2 Cr LJ 523. 68 Prakash Sen v. State, 1988 Cr LJ 1275. 69 Prakash Chand v. State (Delhi Admn.), AIR 1979 SC 400. 70 Annasab Malappa v. State of Karnataka, 1982 Cr LJ 1 553 (Karn)(DB); Koli Nana Bhama v. State of Gujarat, 1986 Cr. L. J. 571(DB) ; Punya Prasad v. Balvadra Daeal, 1985 Cr LJ 159; Velayudhan Pillai v. State of Kerala, (1970) 2 Ker 175; Aheibam Ningol v. State of Manipur, AIR 1967 Mani 11. 71 State v. Mohan Hira, AIR 1960 Guj 9; See contra In Re, Kalu Singh Moti Singh,AIR 1964 MP 30. 72 Karuppanna Thevar v. State of Tamil Nadu, AIR 1976 SC 980. 73 Surya Rao v. Janakamma, AIR 1964 AP 198. 74 Jit Singh v. State of Punjab, AIR 1976 SC 1421. 75 Vijender v. State of Delhi, (1997) 6 SCC 171 : 1997 SCC 857(Cri) . 76 Peethambaran Prasad v. State of Kerala, 1998 Cr LJ 2122 (para 9) (Ker). 77 Lal Pratap Sing v. State, 1963 (1) Cr LJ 355(Guj) . 78 Koli Nana Bhana v. State of Gujarat, 1986 Cr LJ 571(Guj) relying on; State of Gujarat v. Raghunath, 1985 Cr LJ 1357(SC) : AIR 1985 SC 1092. 79 Purshottam v. State of Kutch, AIR 1954 SC 700; Jhumarlal v. State, AIR 1957 Raj 185. 80 Daitari Das v. Kulamani Panda, AIR 1965 Ori 21. 81 State of Bombay v. Seikh Kadar, AIR 1960 Bom 476. 82 Manilal Sahu v. State, AIR 1969 Ori 176. 83 Malik Abdul Salem v. State of Orissa, 1985 Cr LJ 1871(DB) . 84 In Re, Joginadham, 1962 (2) Cr LJ 523(AP) ; Tahsildar Singh v. State of U.P., AIR 1959 SC 1012; In Re, Sambasiva Rao,(1958) 2 An WR 627. 85 Abdul Hamid v. State of Tripura, AIR 1958 Tri 1. 86 Pangi Jogi Naik v. State, AIR 1965 Ori 205(DB) . 87 N.K. Tandel v. State of Gujarat, 1986 Cr LJ 457(Guj) (DB); Tahsildar Singh v. State of U.P., AIR 1959 SC 1012. 88 State v. Hadibandhu, ILR 1973 Cut 601. 89 Abdul Hamid v. State of Tripura, AIR 1958 Tri 1; Bombay Agarwal Co. Akola v. Ram Chand Diwan Chand, AIR 1953 Nag 154(DB) .

17. STATEMENTS UNDER Section 164,Cr.P.C.

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A previous statement of a witness recorded under Section 164of the Criminal Procedure Code can be used as provided for by this section andSection 155, but it cannot be used as substantive evidence of the facts deposed to therein.90 90 Emperor v. Bishun Datt, (1927) 50 All 242; Bisipati Padhan v. State, AIR 1969 Ori 289. See also Guggillasanthosh Reddy v. State of A.P., 2001 Cr LJ NOC 110(AP) : (2001) 1 Andh LJ 76(Cri) .

18. COMMITTING COURT STATEMENTS Evidence recorded in criminal proceeding was transferred to the sessions trial for the purpose of contradicting a witness. That becomes substantive evidence. 91 Where such statements have not been transferred to the Sessions Judge, they cannot be used as substantive evidence. 1 Admissions should be tested by cross-examination.2 In a trial before a Court of Session, counsel for the accused is not entitled to refer to the depositions given before the committing Magistrate for the purpose of contradicting the witnesses before the Sessions Court, without drawing their attention to the alleged contradictions in their previous depositions and giving them an opportunity of explaining the same. 3 The previous contradictory statements of a witness can be used only to contradict and discredit him. It cannot be used to impeach or undermine the credit of other witnesses. Further, where the previous statement of such a witness made in the committal court had not been transferred to the sessions record under Section 288, it could not be used as substantive evidence in the case. 4 A witness in Sessions Court, when confronted with his statement in committed court, while admitting that the record was true, deposed that the statement was false, having been made under police pressure, there is sufficient compliance with Section 145, and it would be pointless to draw his attention to each sentence and ask for his explanation. 5 It is highly desirable that the court should, before the transfer of the earlier statement to be record of the sessions case under Section 288,(old Cr.P.C., now omitted), indicate in a brief order why the earlier deposition was being transferred to the record of the sessions trial. This will make quite clear to the accused that this earlier statement is likely to be used as substantive evidence against him. Although the technical requirement of the session namely, that an order should be passed to indicate that the statement is transferred so as to be read as substantive evidence is not complied with, there is no substantive departure from the requirements of the law. There is no likelihood of any prejudice to the accused, since he is informed, while he is being examined that the statement is being used underSection 288,(old) Cr.P.C. (now omitted) and he is invited to say what he wished to say in defence.6 If the prosecution witnesses turned hostile in the Sessions Court, and their evidence in the committal court was not put to them and their attention has not drawn to those parts, evidence in the committal court is not admissible as the procedure followed will be contrary to the general principle of fair play and to the specific provisions of Section 145. 7 Section 288of (old) Cr. P.C. (now omitted) stated that the previous statements were to be subject to the provisions of the Indian Evidence Act . Section 145 falls fairly and squarely within the plain meaning of these words. More than that, this is a fair and proper provision and is in accord with the sense of fairplay to which courts are accustomed. If the prosecution wished to use the previous testimony to the contrary as substantive evidence, then it must confront the witness with those parts of it which were to be used for the purpose of contradicting him. Then only it could be brought in as substantive evidence underSection 288of (old) Cr.P.C. (now omitted). 8 Where some of the statements were admitted by witnesses but they hastened to point out that the facts stated therein were not correct, those statements have to be treated as denials and not admissions. When parts of statements were not put to the witnesses at all, they cannot be said to have been contradicted by their prior statements.9 The subject dealing with the statements recorded by the committing court under Section 288of (old) Cr.P.C. (now omitted) with reference toSection 145has become of academic interest, as the present Cr.P.C. of 1973 has dispensed with the recording of evidence by the committing court.

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91 Ashok Kumar v. State (Delhi Admn.), AIR 1977 SC 1304. 1 Jit Singh v. State of Punjab, AIR 1976 SC 1421. 2 Sita Ram v. Ram Chandra, AIR 1977 SC 1712. 3 Emperor v. Zawar Rahman, (1902) 31 Cal 142(FB) ; Queen-Empress v. Dan Sahai, (1885) 7 All 862; Reg. v. Arjun Megha, (1874) 10 Bom HCR 281; Emperor v. Lakshman, (1915) 17 Bom LR 590; Bal Gangadhar Tilak v. Shriniwas Pandit, (1915) 17 Bom LR 527 : 42 IA 135 : ILR 39 Bom 441 : AIR 1915 PC 7. 4 Jit Singh v. State of Punjab, AIR 1976 SC 1421; See also Ashok Kumar v. State, AIR 1977 SC 1304. 5 State of Rajasthan v. Kartar Singh, 1970 SC 1305; In re, Dhanabal, 1976 Cr LJ 1969(Mad) . 6 Periyasami v. State of Madras, AIR 1967 SC 1027. 7 Basappa Ramappa Naik v. State, 1963 (1) Cr LJ 698(Mys) (DB); Tara Singh v. State, AIR 1957 SC 441; Bal Gangadhar Tilak v. Shrinivas Pandit , ILR 39 Bom 441; Upendra v. Bhupendra, 21 Cal WN 280; Muharram v. Barkat, AIR 1930 Lah 695; Pangi Jogi Naik v. State, AIR 1965 Ori 205; State v. Hotey Khan, AIR 1960 All 521. 8 Tara Singh v. State, AIR 1951 SC 441; S. Ibochouba Singh v. Manipur Administration, 1972 CR LJ 395(Manipur) ; Anna v. State of Hyderabad, AIR 1956 Hyd 99; Jagar Singh v. State, AIR 1954 Pepsu 6(DB) ; Mer Kala Veman v. State, 1954 Sau 142(DB) ; Jit v. State, (1960) 62 Punj LR 123; Nazar Md. v. Mehta Kirpa Ram, AIR 1946 Lah 64(FB) ; Paramananda Mahakud v. State of Orissa, AIR 1970 Cr LJ 931(Ori) . 9 Narayana Pillai v. State, 1971 Cr LJ 168(DB) Ker; relying on Tahsildar Singh v. State of U.P., AIR 1959 SC 1012.

19. PLEADINGS--DEPOSITIONS A witness can be confronted under Section 145 with statements made in previous suits, whether contained in pleadings, petitions, affidavits or evidence. 10 Where a successor court orders a de novo trial, the statements of prosecution witnesses recorded by the predecessor court can be used for contradicting these witnesses. Their previous statements do not become inadmissible or non-existent on account of the de novo trial.11 Where notes of evidence were recorded by a Presiding Officer of the Small Causes Court and the witness was again examined by a succeeding officer, the statement of the witnesses recorded by the earlier Presiding Officer falls under Section 145 and can be used in cross-examination for contradicting the witness. 12 Even if the evidence taken on commission is not read as evidence in a suit, it would be available as a previous statement for the purposes of Section 145.13 The deposition in a prior criminal case between the same parties, is not admissible but the attention of plaintiff may be drawn to the deposition made by him as required by Section 145.14 Where a report was made by an official on the direction of the court in an earlier proceeding, the contents of the report cannot be used in subsequent suit, unless the official is produced and party against whom it is to be used is given opportunity to cross-examine him. 15In the case of a departmental enquiry against a government servant, where statements were recorded during the preliminary inquiry, the petitioner can demand copies of the statements of only those witnesses who are examined in the departmental enquiry for the purpose of discrediting them. Section 145 Evidence Act, does not confine the right of contradiction only to previous statements recorded on oath. 16 10 Mahammed Seraj v. Adibar Rahaman Sheikh, AIR 1968 Cal 550. 11 Brahma Naik v. Ram Kumar Agarwal, 1974 Cr LJ 567; Rajindar Singh v. State, (1974) 1 Delhi 277. 12 President, Sishu Bihar Bhabini Vihar Mandal, Hyderabad v. Yellaiah, AIR 1969 AP 148. 13 Mir Abdul Sovan v. Rafi Kan Bibi, AIR 1972 Cri 213; Sohanlal v. State, AIR 1965 Bom. 14 Venkatappa v. Brahmayya, AIR 1953 Mad 1000. 15 1967 All WR (HC) 827.

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16 Sharmanand v. Superintendent Gun Carriage Factory, Jabalpur, AIR 1960 MP 178(DB) .

20. OTHER STATEMENTS A post-mortem report is not substantive evidence. It can be used to corroborate under Section 157, or to contradict, under Section 145, the evidence of the doctor. 17 Where the writer of a letter appears as a witness in court, the contents of that letter would amount to a previous statement of a witness, and can be used for the purpose of corroborating his testimony in court under Section 157, or to discredit his evidence during cross-examination.18 17 Hadi Kirsani v. State, AIR 1966 Ori 21(DB) ; State of Rajasthan v. Mathura Lal, 1971 Cr LJ 1816(Raj) . 18 Balabhadra Misra v. Nirmala Sundari Devi, AIR 1954 Ori 23.

21. SECTIONS 145, 146, 155 AND 157 A perusal of Sections 145, 155 and 157 of the Evidence Act clearly indicates that there are two purposes for which a previous statement can be used. One is for cross-examination and contradiction, and the other is for corroboration. When the defence wants to use the previous statement of a witness, it could be only to contradict and not to corroborate. However, considering the restrictions contained in Section 6 of the Commission of Enquiry Act, the statement made by a witness before a Commission could not be used in a criminal trial either for the purpose of cross-examination or to contradict the witness or to impeach his credit.19 Section 155, Evidence Act, lays down that the credit of a witness may be impeached inter alia by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted, but it does not lay down the manner in which his former statement is to be proved. The mode of proof of such a statement in writing, when it is sought to be tendered in evidence for contradicting a witness, is provided in Section 145 and is not independent of it. 20 By virtue of Section 155 proof of former statements inconsistent with any part of the evidence given by a witness, can be given and it is not required by Section 155 that the attention of the witness must be drawn to such previous statements in the course of his examination. It is obvious, therefore, that Section 145 does not control the provisions of Section 155 which is much wider and the evidence of a witness 'A' cannot be regarded as inadmissible for the reason that the attention of witness 'B' was not drawn to the statement attributed to him by the witness 'A'.21 Sections 145, 146 and 155(3) are complementary to each other. When they are read together, a cross-examiner cannot be restricted from putting questions except to the extent indicated in Section 148 to 152.22 19 Kehar Singh v. State (Delhi Admn), AIR 1988 SC 1883. 20 1958 Mad LJ (Cri) 942 (AP) 21 Ram Ratan v. State, AIR 1956 Raj 196. 22 Surendran v. State, 1994 Cr LJ 464 (para 8) (Ker).

22. RECALLING A WITNESS If the witnesses are recalled subsequent to the conclusion of their evidence in the Court at the behest of the accused on the basis of affidavits subsequently filed by them contradicting their previous statements made in the Court, it would be in violation of the provisions contained in S. 145 of the Evidence Act . If permitted, there shall be no end of trial. 23 23 Tahir v. State of U.P., 2000 Cr LJ 1342 (paras 9 and 10) (All).

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Ratanlal & Dhirajlal: Law of Evidence, Updated 23rd Edition/THE INDIAN EVIDENCE ACT (ACT 1 OF 1872)/PART III PRODUCTION AND EFFECT OF EVIDENCE/CHAPTER X OF THE EXAMINATION OF WITNESSES/S. 146.

CHAPTER X OF THE EXAMINATION OF WITNESSES S. 146. Questions lawful in cross-examination. When a witness is cross-examined, he may, in addition to the questions hereinbefore referred to, be asked any questions which tend-5)  to test his veracity, 5)  to discover who he is and what is his position in life, or 3)  to shake his credit, by injuring his character, although the answer to such questions might tend directly or indirectly to criminate him or might expose or tend directly or indirectly to expose him to a penalty or forfeiture: [Providedthat in a prosecution for rape or attempt to commit rape, it shall not be permissible to put questions in the cross-examination of the prosecutrix as to her general immoral character.] 24

1. GENERAL

This section enables the cross-examiner to put certain questions, in additions to the questions referred to in the earlier Sections, to test the veracity, discover who the witness is and what his position is in life, or to shake his credit by injuring his character, although the answer to such questions might tend directly or indirectly to criminate him. This section gives very wide powers to the cross-examiner in addition to those given by Section 138. This section extends the power of cross-examination far beyond the limits of Section 138, paragraph 2, which confines, the cross-examination to relevant facts, including of course the facts in issue.25 24 Inserted by the Indian Evidence (Amendment) Act, 2002 (4 of 2003), Section 2 (w.e.f. 1-1-2003). 25 MARKBY, p. 107.

2. TO TEST HIS VERACITY A witness may be examined not only as to the relevant facts but also as to all facts which reasonably tend to affect the credibility of his testimony. This is generally spoken of as cross-examination to credit, inasmuch as a large part at any rate of the facts which are relied on for the purpose are facts which touch the credit and good name of the witness. But no such cross-examination can be legitimate unless it has some reasonable bearing on his credibility. Cross-examination to credit is necessarily irrelevant to any issue in an action, its relevancy consists in being addressed to the credit or discredit of the witness in the box so as to show that his evidence for or against the relevant issue is untrustworthy; it is most relevant in a case where everything depends on the judge's belief or disbelief in the witness's story.26 A witness is compellable to answer questions relevant merely as affecting

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credit, but the judge has a discretion to excuse any answer when the truth of the matter suggested would not, in his opinion, affect the credibility of the witness as to the subject matter of his testimony. Where the veracity of a witness is in question, Section 146 applies. And the witness can be crossexamined to shake his character, though it may not be an issue in a case. Sections 155 and 146 are not in conflict with each other. Sections 138, 140, 145,148 and 154 provide for impeaching the credit of a witness by cross-examination.27 The Supreme Court observed: "The statement that Section 146 must be read along with Section 153 cannot be accepted in its entirety. It may be that clause (3) of Section 146 may have to be read along with the main Section 153, but clause (1) of Section 146 and exception (2) to Section 153 deal with different aspects. Under Section 146(1), questions may be put to a witness in cross-examination, to test his veracity and under exception (2) to Section 153, a witness may be contradicted when he denies any question tending to impeach his impartiality." 28 LORD HERSCHELL at page 70 observed: "My Lords, I have always understood that if you intend to impeach a witness, you are bound, whilst he is in the box, to give an opportunity to making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but it is essential to fair play and fair dealing with witness." LORD HALSBURY at page 76 observed: "To my mind nothing would be more absolutely unjust than not to cross-examine witness upon evidence which they have given, so as to give them notice and to give them an opportunity of explanation and an opportunity very often to defend their own character." 29 As a general rule, and in view of Section 145, whenever it is intended to impeach the evidence of a witness, his attention must be called to the discrediting facts, so that he may have an opportunity to explain them. In Carapeit v. Derderian 30, following the observations of LORD HERSCHELL and LORD HALSBURY, quoted above, it was held that the attention of the witness should be drawn to such facts as are intended to impeach the credit of his evidence. Any question touching on the character and conduct of a witness should be asked only when there is some material to substantiate the same.31 The veracity of a witness is to be tested with reference to the answers given in the cross-examination which is aimed at obtaining some admissions favourable to the cross-examining party, or at discrediting the witness.32 While cross-examining the victim of kidnapping, permission was sought by the defence to put forward a CD containing the interview of the victim on a local T.V. Channel and for watching the same on CD player in the Court which was granted by the trial Court but the same was held to be illegal. Moreso, when the trial Court had failed to consider the fact that the CD had not been prepared and preserved safely by an independent authority like the police but the same was produced by the accused.33 Sections 133, 114, (Ill. b) and Section 146 are to be read together, in respect of evidence of an accomplice witness, as an accomplice is unworthy of credit, under Section 114, Illu. (b), as a rule of prudence corroboration in material particulars is required. Section 146 can properly be invoked to test his veracity and also discover who is and what is his position in life and shake his credit by injuring his character, as conduct of the accused may also be capable of supplying corroboration. 34 26 Bombay Cotton Co. v. Raja Bahadur Shivlal Motilal, (1915) 17 Bom LR 455 : 42 IA 110 : ILR 39 Bom 386 : AIR 1915 PC 1. 27 G. Hussenaiah v. B. Yerraiah, AIR 1954 Andhra 39. 28 Rama Reddy v. V.V. Giri, AIR 1971 SC 1162. 29 Browne v. Dunn , (1894) 6 R 67. 30 AIR 1961 Cal 359. 31 Jagtu v. Badri, AIR 1978 J&K 50. 32 Rajanna Rajulli v. State of A.P., (1979) 2 An LT 215.

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33 State of Gujrat v. Shailendra Kamal Kishore Pande, 2008 CrLJ 953. 34 Ibrahim Husen v. State of Goa, 1969 Cr LJ 739.

3. TO DISCOVER WHO HE IS ETC. As preliminary to the cross-examination of a witness as to facts in the case, it is common practice to make inquiry into his relations with the party on whose behalf he was called--business, social and family; also to enquire as to his feelings towards the party against whom his testimony has been given. This is permissible in order to place his testimony in a proper light with reference to bias in favour of the one party or prejudice against the other. 35 Credibility of a witness does not depend on the status of a witness. So questions relating to the low status of a witness would not be of any help to discredit a witness. 36 Sections 145, 148 and 155 indicate that the credit of a witness can be said to have been shaken only if it can be shown that he is not a man of veracity, and not that he is a of bad moral character. A blackmarketeer is not necessarily untruthful nor a non-black-marketeer necessarily a man of veracity. There is no reason for rejecting the evidence of a witness on the ground alone that he is a black-marketeer. 37 35 MAKELVEY, S. 259. 36 (1959) 2 An VTR 375. 37 Chari v. State, AIR 1959 All 149.

4. SHAKING THE CREDIT BY INJURING THE CHARACTER This clause enables the cross-examiner to put questions injuring the character of a witness, to shake his credit. Sections 146 to 152 deal with questions which can be put to a witness with a view to shake his credit by damaging his character. These sections along with S. 132 embrace the entire range of questions which can possibly be put to a witness. Section 152 of the Act, says that the court shall forbid any question which appears to it to be intended to insult or annoy, or which, though proper in itself, appears to the court needlessly offensive in form. Section 153 states that questions can be put to shake the witness's credit by injuring his character. But, no evidence shall be given to contradict the answers given by the witness, if he answers falsely he may be charged with giving false evidence. This rule has got two exceptions, viz., where a witness denies his previous conviction, or denies the fact suggested to impeach his impartiality; then evidence may be given to contradict those denials of the witness. STEPHEN in his digest (pp. 196-197) has observed: "I shall not believe, unless and until it is so decided upon solemn agreement, that by the law of England a person who is called to prove a minor fact not really disputed, in a case of little importance, thereby exposes himself to having every transaction in his past life, however, private, inquired into by persons who may wish to serve the basest purposes of fraud or revenge by doing so. Suppose for instance, a medical man were to prove the fact that a slight wound had been inflicted and been attended to by him, would it be lawful under pretence of testing his credit, to compel him to answer upon oath a series of questions as to his private affairs extending over many years and tending to expose transactions of the most delicate and secret kind, in which the fortune and character of other persons might be involved? If this is the law, it should be altered." In Cl. (3) of Section 146, the expression "injuring his character" is used; in Sections 52, 53, 54 and 55 of this Act, it is stated when character would be relevant. Character includes both general reputation and disposition. (See Sections 52 to 55).

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Generally, character evidence is not relevant to decide any issue in a case, except to the extent given in Sections 52 to 55. But under Section 146(3), the cross-examiner is entitled to put questions regarding character of the witness for the purpose of discrediting his evidence. 38 As long as the cross-examiner confines his questions to the points of testing the veracity of a witness or discovering his status in life, there seem to be no limits to his power of putting questions. But when he undertakes the difficult yet delicate task of impeaching the character of witness, the following sections (Ss. 147 to 150) give ample protection to a witness in speaking the truth, and impose wholesome restraints upon groundless assertions levelled against him. If any such question relates to a matter relevant to the suit or proceeding....the provisions of S. 132 are by S. 147 declared applicable to it. If the question is as to a matter relevant only so far as affects the credit of the witness by injuring his character, the Court is by S. 148 directed to decide whether or not the witness is to be compelled to answer, and may ... warn the witness that he is not obliged to answer it....When there is a question asked to which the answer may tend to criminate a witness, he may object that it is not as to a matter relevant to a matter in issue, or that, if relevant, it is relevant only as affecting his credit by injuring his character.39 It is not permissible to have recourse to Section 146(3) to ask all sorts of questions which are not necessary to shake the credibility of the witness. The assault on the character of a witness, permitted by Section 146(3), must be directed only for the purpose of shaking the credit of the witness and not for any other purpose.40 During cross-examination of the prosecutrix in a rape case, the accused wanted to show the blue video film, in which the prosecutrix was shown indulging in undesirable sexual act s to impeach her credibility and general immoral character, it was held that such kind of video recording could not be shown in the Court room, though it would certainly amount to impeach the general character of the prosecutrix and to embarrass her in the Court as it was impermissible under the law. 41 In a proceeding for maintenance by the wife, the cross-examining counsel made a suggestion to the witness, the landlady, produced by husband that the husband was in love with her daughter-in-law and that is why he used to go to her house which was stoutly denied by the witness. It was held that putting such a question to the witness, when there was no such complaint in the application and the respondent side had stated nothing to this effect, should not have been permitted, particularly when it reflected not only on the character of the husband but also on another lady who was not a party to the proceedings. 42 38 G. Husseiaiah v. B. Yerraiah, AIR 1954 AP 39; Baburao Patel v. Bal Thackrey, 1977 Cr LJ 1637(Bom) . 39 Per TURNER, C.J., in The Queen v. Gopal Doss, (1881) 3 Mad 271, 278 (FB). 40 Babu Rao Patel v. Bal Thackrey, 1977 Cr LJ 1637(Bom) ; Govardhansing v. Chandanmal, (1982) 1 Bom CR 591. 41 Dilbhajan Singh v. State of Punjab, 2004 CrLJ 3152, 3153 (para 7) (P&H) : 2004 (2) Crimes 588 : 2004 (2) Rec CrR 472. 42 Deb Narayan Halder v. Anushree Halder, AIR 2003 SC 3174 (para 16) : (2003) 11 SCC 303 : 2003 CrLJ 4470.

5. INDECENT AND SCANDALOUS QUESTIONS The provisions of Section 146(3) permit cross-examiner to put questions which will not only shake the credit of a witness, but which will also expose his ethical and moral behaviour, which may ultimately weigh with the court, while evaluating that testimonial evidence. By its every nature, questions on mala fides as opposed to bona fides, immorality, as opposed to good morality, dishonesty as against honesty, falsehood as against truthfulness, can all conceivably be put, provided there is necessity and foundation for the same. Section 155 expressly permits, by indicating the mode and manner, to bring in evidence upon the credit of a witness, so as to impeach such testimony. Indecent and scandalous questions can be put if they directly relate to the facts in issue and also if it is necessary in order to determine whether or not the facts in issue existed; these exceptions are vital; and, if in any given case, the court is satisfied that even an indecent and scandalous question may have a bearing upon a

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fact in issue, the same cannot be forbidden. If a question is merely intended to insult or annoy, and is offensive in form, the court has power to forbid the same. 43 The Madras High Court held that where a witness is put questions per se defamatory, the remedies open to him in law are threefold, namely: (a) protection by the court; (b) self-help in the shape of setting the criminal law in motion; or (c) filing a suit for damages. The extensive powers which have been granted to the court for protecting witnesses from questions not lawful in cross-examination are set out in Sections 146 to 153 of the Evidence Act. 44 In a case, the advocate put a question to the witness as to who supplied the bricks for the drain; the witness replied that he supplied them. When the court asked the lawyer about the relevancy of that question, he said that he is going to prove that the witness is an unscrupulous vice-chairman of the Municipality. When the lawyer was charged with defamation it was held that the question put by the lawyer fell within the purview of Section 146, to test the credit of the witness. 45 In a case concerning commission of offences relating to pornographic material/acts, evidences as to the subject-matter of which could cause embarrassment not only to the Presiding Officer, both male and female, but also to the lady witnesses/accused as well as to any decent person, the Supreme Court held that presiding officer could make adjustments/arrangements in the procedure so as to minimise embarrassment to himself/herself and the witnesses. 46 The trial Judges must appreciate that the purpose of cross-examining a victim of rape is not to humiliate her but to get to the truth of the matter. Consequently, the questions which have no real relevance to the issue before the Court and which are apparently directed to cause discomfiture, if not humiliation, to a victim of sexual offences should not be permitted. Such questions do not serve the ends of justice and it is pointless allowing any such cross-examination to take place. 47 43 Prakash Raja Ram v. State of Maharashtra, 1975 Cr LJ 1297(Bom) . 44 Ayeasha Bi v. Peer Khan Sahib, AIR 1954 Mad 741. 45 Jyothish v. Haridas, 24 Cal WN 23. 46 Fatima Riswana v. State, (2005) 1 SCC 582, 586 (paras 12-14) : AIR 2005 SC 712 : 2005 CrLJ 900. 47 Mohd. Alam v. State (NCT of Delhi), 2007 CrLJ 803, 810 (para 45) (Del).

6. TAPE RECORD The Supreme Court observed: "The tape recorded statement itself is primary and direct evidence admissible as to what has been said and picked up by the recorder. A previous statement made by a witness and recorded on tape can be used not only to corroborate the evidence given by the witness in court, but also to contradict the evidence given before the court, as well as to test the veracity of the witness and also to impeach his impartiality. Thus, apart from being used for corroboration, the evidence is admissible in respect of other three matters, viz. (1) under Section 146(1) to test the veracity of the witness; (2) under exception (2) to Section 153,i.e., if a witness is asked any question tending to impeach his impartiality and answers it by denying the fact suggested, he may be contradicted; and (3) under Section 155(3),i.e., by giving proof of former statements inconsistent with any part of his evidence which is liable to be contradicted. The weight to be given to such evidence is however distinct and separate from the question of its admissibility." 48 48 Ramareddy v. V.V. Giri, AIR 1971 SC 1162; Rupchand v. Mahabir Prasad, AIR 1956 Punj 173; Manindranath v. Bishwanath, 67 Cal WN 191; Malkani R.M. v. State of Maharashtra, AIR 1973 SC 157; Partapsingh v. State of Punjab, AIR 1964 SC 72.

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CHAPTER X OF THE EXAMINATION OF WITNESSES S. 147. When witness to be compelled to answer. If any such question relates to a matter relevant to the suit or proceeding, the provisions of Section 132 shall apply thereto. COMMENTS

This section says that, if any such question relates to a matter relevant to the suit or proceeding, the provisions of Section 132 shall apply thereto. "Such question" refers to a question referred to in clause (3) of Section 146,viz., a question which tends to shake the credit of a witness by injuring his character etc. Section 132 states that the witness shall not be excused from giving the answer on the ground that any answer to such a question will criminate or may tend directly or indirectly to criminate such a witness, or expose him to any penalty or forfeiture of any kind. But, if the court compels him to give an answer to any such question he is protected from arrest or prosecution. In case he gives false evidence in answer to a question put to him, he can be charged with the offence of giving false evidence. All questions which would fall under Section 132 can be put under Section 146. The witness cannot be compelled to give an answer if he can claim privilege under Sections 122, 126, 127, 128 or 131. Again under Sections 123 and 125 as a matter of public policy a witness referred to in these sections cannot be compelled to answer. Barring the above provisions whereunder he need not answer questions, in other circumstances, he has to answer questions under Section 132 of the Act . Section 147 empowers a court to compel a witness to reply to a relevant question. If he refuses to answer a question, immediate action should be taken against him in the interest of fair trial. If the court fails in its duty, it hampers the course of justice and brings it into disrepute. 49 A witness is compellable to answer every question put to him in cross-examination which is relevant to the issue, unless protected by public policy, or privilege, or unless the case is one in which oral evidence is excluded by documentary. All cross-examination must be relevant to the issues or to the witness's credit.50 49 Shive Sharnagat v. State of Bhopal, AIR 1953 Bhopal 21. 50 PHIPSON ON EVIDENCE, 15th Edn. (2000), para 11-17, page 249.

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CHAPTER X OF THE EXAMINATION OF WITNESSES S. 148. Court to decide when question shall be asked and when witness compelled to answer. If any such question relates to a matter not relevant to the suit or proceeding, except in so far as it affects the credit of the witness by injuring his character, the Court shall decide whether or not the witness shall be compelled to answer it, and may, if it thinks fit, warn the witness that he is not obliged to answer it. In exercising its discretion, the Court shall have regard to the following considerations:-6)  such questions are proper if they are of such a nature that the truth of the imputation conveyed by them would seriously affect the opinion of the Court as to the credibility of the witness on the matter to which he testifies; 6)  such questions are improper if the imputation which they convey relates to matters so remote in time, or of such a character, that the truth of the imputation would not affect, or would affect in a slight degree, the opinion of the Court as to the credibility of the witness on the matter to which he testifies; 4)  such questions are improper if there is a great disproportion between the importance of the imputation made against the witness's character and the importance of his evidence; 2)  the Court may, if it sees fit, draw, from the witness's refusal to answer, the inference that the answer if given would be unfavourable. 1. PRINCIPLE AND SCOPE

This section deals mainly with the exercise of discretion by the court, while deciding whether a witness should be compelled to answer a question in cross-examination or not. It states that, if any such question relates to a matter not relevant to the suit or proceeding, except the questions put to discredit the witness by injuring his character, the court shall decide whether the witness is to be compelled to answer or not. If the court thinks that it is not relevant, then the court can warn the witness that he is not obliged to answer the question. Before exercising that discretion, the court must have regard to the considerations mentioned in clause 1 to 4 of the section. The purpose of enacting Sections 149 to 153 is to prevent abuse of the right to cross-examination of a witness. Sections 148-152 are intended to protect a witness against improper cross-examination--a protection which is often very much required. But the protection offered by Section 148 is not very effectual, because an innocent man will be eager to answer the question, and one who is guilty will by a claim for protection merely confess his guilt. Nor does the threat contained in Section 149 and this section carry the matter much further.51

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The object of this section is to prevent the unnecessary raking up of the past history of a witness, when it throws no light whatsoever on the questions at issue in a case. It protects a witness from the evils of a reckless and unjustifiable cross-examination under the guise of impeaching his credit. In the course of cross-examination, the temptation is always too great to run down a witness's character; the Legislature has, therefore, wisely provided ample safeguards for the unfortunate witness and placed wholesome checks on the willy cross-examiner. It would seem that under this section a witness cannot be compelled to answer irrelevant questions; but if he chooses to answer them, he cannot be contradicted by other evidence (Section 153). "In connection with this subject, we may refer to some provisions which we have inserted in order to prevent the abuse of the power of cross-examination to credit. We believe the existence of that power to be essential to the administration of justice, and we believe it to be liable to great abuse. The need for the power and danger of its abuse are proved by English experience, but in this country litigation of various kinds, and criminal prosecution in particular, are the great engines of malignity, and it is accordingly even more necessary here than in England, both to permit the exposure of corrupt motives and to prevent the use of the power of exposure as a means of gratifying malice. We have accordingly provided as follows: "Such questions may relate either to matters relevant to the case, or to matters not relevant to the case. If they relate to matters relevant to the case, we think the witness ought to be compellable to answer, but that his answer should not afterwards be used against him. "If they relate to matters not relevant to the case except insofar as they affect the credit of the witness, we think that the witness ought not to be compelled to answer. His refusal to do so would, in most cases, serve the purpose of discrediting him, as well as an express admission that the imputation conveyed by the question was true."52 51 MARK BY, 107. 52 Proceedings of the Legislative Council.

2. "ANY SUCH QUESTION" When any such question, that is, the question referred to in Section 146, is not relevant to the suit or proceeding, the court must decide whether or not the witness should be compelled to answer it and may warn the witness that he is not obliged to answer it. Such questions are proper-7)  if they are of such a nature that the truth of the imputation made touches the credibility of the witness. They are improper-8)  if the imputation refers to matters (a) so remote in time, or (b) of such a character, that its truth does not affect the credibility of the witness; or 7)  If there is a great disproportion between the importance of the imputation and the importance of the evidence. If the witness refuses to answer any question it is open to the court to draw the inference that the answer if given would be unfavourable. (cf. S. 114, ill. (b)).

3. PROPER QUESTIONS [CLAUSE (1)] On an indictment for rape, or attempt to rape, or for an indecent assault, the prosecutrix cannot be asked in cross-examination whether she had had connection with another person not the accused;

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and if she denies it, evidence cannot be called to contradict her. 53 But she can be asked whether she had on previous occasions connection with the accused, 54 or whether she was a common prostitute.55 The considerations referred to in sub-sections 2 and 3 of Section 148, and Section 151 and 152 indicate, more distinctly, than is to be found in English law, the principle on which the court should proceed in protecting witnesses from reckless and unjustifiable interrogations. A witness is not to have his whole past life raked up and dragged into publicity, merely because he comes forward in obedience to the law, to give evidence in court. So serious an interference with ones private life can be justified only by a real necessity and cannot be justified when the injury to the witnesses' character is very serious, while the importance of the evidence is relatively insignificant. 56 53 Per KELLY, C.B. in Queen v. Holmes, (1871) LR 1 CCR 334, 336; Hodgson's case, (1812) R&R CC 211; Rex v. Clarke, (1817) 2 Stark 41. 54 Rex v. Martin, (1834) 6 C&P 562; Reg v. Cockcroft, (1870) 11 Cox 410. 55 Rex v. Barker, (1829) 3 C&P 589. 56 Ayeasha Bi v. Peer Khan Sahib, AIR 1954 Mad 741.

4. IMPROPER QUESTIONS [CLAUSES (2) AND (3)] This second clause says that such questions are improper if the imputation which they convey relate to matters remote in time. WIGMORE ON EVIDENCE (Section 928) observes: "The correct solution seems to be that prior character at any time may be admitted as being relevant to show present character, and therefore, indirectly, to show the probability as to truth speaking. The only limitation to be applied is that the character must not be so distant in time as to be void of real probative value in showing present character, this limitation is to be applied in the discretion of the trial court." SIR JAMES STEPHEN in his General View of the Criminal Law of England observes: "If a woman prosecuted a man for picking her pocket, it would be monstrous to inquire whether she had not had an illegitimate child 10 years before, though circumstances might exist which might render such an inquiry necessary. For instance, she might owe a grudge to the person against whom the charge was brought on account of circumstances connected with such a transaction, and have invented the charge for that reason."57 "No doubt, cases may arise, when the judge, in exercise of his discretion, would properly interpose to protect the witness from unnecessary and unbecoming annoyance, for instance, all inquiries into discreditable transactions of a remote date, might, in general, be rightly suppressed; for the interests of Justice can seldom require that the errors of a man's life, long since repented of, and forgiven by the community, should be recalled to re-rememberance at the pleasure of any future litigant. So, questions respecting alleged improprieties of conduct which furnish no real ground for assuming that a witness who could be guilty of them would not be a man of veracity, might very fairly be checked." 58 In a case concerning commission of offences relating to pornographic material/acts, evidences as the subject-matter of which could cause embarrassment not only to the presiding officer, both male and female, but also to the lady witnesses/accused as well as to any decent person, the Supreme Court held that Presiding Officer could make adjustments/arrangements in the procedure so as to minimise embarrassment to himself/herself and the witnesses.59 The accused offered himself as a surety for a person who had been ordered to find security for good behaviour. The Magistrate examined him on oath with a view to ascertain his fitness as a surety. He was asked if he had ever been previously convicted of any offence; and he replied in the negative. A previous conviction which was thirty years old having been proved against him, he was tried for an offence under Section 193 of the Indian Penal Code . The High Court upheld the conviction but modified the sentence on the ground that the Magistrate should have refused to allow the question to

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be put on the ground that it related to a matter which had happened thirty years before and was so remote in time that it ought not to influence his decision as to the fitness of the surety. 60 Under this clause, questions would be improper if there is a great disproportion between the importance of the imputation made against the witness's character and importance of his evidence. 57 See also Ayesha Bi v. Peer Khan Sahib, AIR 1954 Mad 741. 58 FIELD ON EVIDENCE, 1967 Ed. Vol. 6, page 487. 59 Fatima Riswana v. State, (2005) 1 SCC 582, 586 (paras 12-14) : AIR 2005 SC 712 : 2005 CrLJ 900. 60 Emperor v. Ghulam Mustafa, (1904) 26 All 371, 374.

5. ADVERSE INFERENCE [CLAUSE (4)] This clause states that the court may presume or draw inference, when the witness refuses to answer, that the answer, if given, would be unfavourable to him. Section 114, Illus. (h), says that if a man refuses to answer questions which he is not compelled to answer by law, the Court may presume that the answer if given would be unfavourable to him. In cl. (4) of this section and also in Section 114, the expression "may" is used. So, the discretion is with the court whether to draw, or not, such an inference depending upon the facts of each case. "The law, after much debate, is still somewhat unsettled as to whether a witness is bound to answer any question, the direct and immediate effect of answering which might be to degrade his character. It, however, seems clear that, where the transaction as to which the witness is interrogated, forms any material part of the issue, he will be obliged to give evidence, however strongly it may reflect on his own conduct. Indeed, it would be alike unjust and impolitic to protect a witness from answering a question, merely because it would have the effect of degrading him, when his testimony is required either for the due administration of public justice, or to protect the property, the reputation, the liberty, or the life of a fellow subject. Were such a protection to prevail, a man already convicted and punished for a crime, would, if called as a witness against an accomplice, be excused from testifying to any of the transactions in which he had participated with the accused, and thus the guilty might escape." 61 "It has been stated more than once, that, if the witness declines to answer, no inference of the truth of the fact can be drawn from that circumstance; but the soundness of this rule is very questionable; and although it would be going too far to say that the guilt of the witness must be implied from his silence, it would seem that, in accordance with justice and reason, the jury should be at full liberty to consider that circumstance, as well as every other, when they come to decide on the credit due to the witness. A perfectly honourable but excitable man may occasionally repudiate a question which he regards as an insult, and to infer dishonour from his conduct would, of course, be unjust; but, generally speaking, an honest man will be eager to rescue his character from suspicion and will at once deny the imputation, rather than rely on his legal rights, and refuse to answer the offensive interrogatory." 62 A reading of the provisions in Sections 146, 148 and 155 would disclose that the credit of a witness can be said to have been shaken only if it can be shown that he is not a man of veracity, and not that he is of bad immoral character. A black-marketeer is not necessarily untruthful nor a non-blackmarketeer necessarily a man of veracity.63 61 TAYLOR ON EVIDENCE, 10th Edn. Sections 146 to 148. 62 TAYLOR ON EVIDENCE, 8th Edn., Sections 1321 and 1467. 63 Chari v. State, AIR 1959 All 149.

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CHAPTER X OF THE EXAMINATION OF WITNESSES S. 149. Question not to be asked without reasonable grounds. No such question as is referred to in Section 148 ought to be asked, unless the person asking it has reasonable grounds for thinking that the imputation which it conveys is well-founded. ILLUSTRATIONS 3a)  A barrister is instructed by an attorney or vakil that an important witness is a dakait. This is a reasonable ground for asking the witness whether he is a dakait. 3b)  A pleader is informed by a person in Court that an important witness is a dakait. The informant, on being questioned by the pleader, gives satisfactory reasons for his statement. This is a reasonable ground for asking the witness whether he is a dakait. 3c)  A witness, of whom nothing whatever is known, is asked at random whether he is a dakait. There are here no reasonable grounds for the question. 3d)  A witness, of whom nothing whatever is known, being questioned as to his mode of life and means of living, gives unsatisfactory answers. This may be a reasonable ground for asking him if he is a dakait.

This section states that questions which are contemplated under Section 148, ought not to be asked unless the person asking the question has reasonable ground for thinking that the imputation which it conveys is well-founded. The cross-examiner must have reasonable grounds to believe that the imputation made against the witness is well-founded. As to what are reasonable grounds which justify such question, see the illustrations. The trial judge has a duty not to permit questions which are scandalous, vexatious or even cantankerous, which elicit irrelevant or inadmissible answers, or even those which do not advance the trial but are calculated to hinder or delay its progress. Where the interest of justice clearly requires it, the trying judge himself has to put questions to clarify matters which are vague. But, beyond such and other clear situations, the trial judge does not himself enter the arena of combat. 64 64 Mohinder Singh v. State, ILR, (1970) 2 Del 854; In re, Shanmugham,1983 Mad LJ 347(Cri) .

1. WHETHER THE CROSS-EXAMINER IS PROTECTED WHEN PUTTING DEFAMATORY QUESTIONS Under Section 340(1)Cr.P.C. (old), there is a right of the accused to consult and to be defended by a legal practitioner of his own choice, to protect his interest. The same right is conferred by Art. 22(1) of the Constitution as a fundamental right.Section 499,I.P.C., deals with defamation and the 9th

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Exception to the section affords protection to the person making a defamatory statement, provided it was made in good faith. While appearing for a party, the advocates have some responsibility and they shall not abuse their privileges. They should exercise their own discretion before putting any offensive question, and they shall not put questions in a manner without verifying the truth of the imputations, conveyed by such questions.65 There is a presumption that the advocate puts questions to the witness on the instruction of the client.66 But when after raising the presumption in favour of the advocate the contrary is proved, the court can come to a finding that those questions were put by the advocate without instruction. 67 If the advocate puts questions which are defamatory on the instructions of the client he is protected under 9th Exception to Section 499,I.P.C.68 When defamatory questions were put by the lawyer to a witness in cross-examination, on his client's instructions, and the imputation conveyed by those questions was per se defamatory, and when there was no reasonable basis for putting those questions, it was held that the client was liable under Section 500I.P.C., though the lawyer could take protection under the 9th Exception toSection 499,I.P.C.69Where a pleader is charged with the offence of defamation punishable under Section 500,I.P.C., alleging that, he unnecessarily in cross-examination put to the complainant who was a witness in a criminal case, certain questions which imputed immoral character and there is no allegation, and much less proof, that the pleader in putting the questions was act uated by any motive of private malice and was not acting in the interest of his client, the pleader is entitled to the benefit under Exception to Section 499,I.P.C., and the charge which imputes no ill faith but merely refers to the questions as having been put unnecessarily cannot stand. 70 In the case of a party on whose behalf defamatory questions were put, he has to prove that he made the imputation in good faith when he claims benefit of Exception 9 to Section 499,I.P.C., and it would be determined by the circumstances in which the questions was put, the social status and the level of education of the person making the imputation.71 But the truth of the imputation need not be proved beyond doubt. 72 65 M. Banarjee v. Emperor, AIR 1927 Cal 823; Fakir Prasad v. Kripa Sindhu, AIR 1927 Cal 303. 66 Anwaruddin v. Fathim Bai, AIR 1927 Mad 379; Seshagiri Rao v. Sadulla, 1937 Mad WN 243(Cri) . 67 Satish Chandra v. Ram Doyal, AIR 1921 Cal 1(SB) ; Genden Lal v. R, AIR 1948 All 409; Md. Taqi v. M.A. Ghani, AIR 1945 Lah 97; U. Pike v. Ma Khien Thein, AIR 1940 Rang 77. 68 Narayan Chandra Ganguli v. Harish Chandra, AIR 1933 Cal 185; Tulsidas v. Billimoria, AIR 1932 Bom 490. 69 Deepchand v. Sampathraj, 1970 Cr LJ 26 0 : AIR 1970 Mys 34; Gajanan Laxman v. Rangarao Amrutr ao, 1980 Bom CR 675(Bom) (DB). 70 Bhashyam Iyengar v. Andal Ammal, 1934 Mad WN 81(Cri) . 71 Per RAJAMANNAR J., Anthoni Udayar v. Velusami Thevar, AIR 1948 Mad 469. 72 Karuppanna Goundan v. Kuppuswamy Mudaliar, (1935 Mad WN 69(Cri) ; Rebecca Mondal v. R, AIR 1947 Cal 278.

2. REMEDIES OPEN TO THE WITNESS Where a witness is put questions per se defamatory, the remedies open to him in law are threefold, viz.: (a) protection by court; (b) setting the criminal law in motion; or (c) filing a suit for damages. 73 73 Ayeasha Bi v. Peer Khan Sahib, 1954 Cr LJ 1239 : AIR 1954 Mad 741.

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CHAPTER X OF THE EXAMINATION OF WITNESSES S. 150. Procedure of Court in case of question being asked without reasonable grounds. If the Court is of opinion that any such question was asked without reasonable grounds, it may, if it was asked by any barrister, pleader, vakil or attorney, report the circumstances of the case to the High Court or other authority to which such barrister, pleader, vakil or attorney is subject in the exercise of his profession. 1. PRINCIPLE AND SCOPE

This section provides the procedure to be followed by the court in regard to the advocate in cases where questions are asked by him without reasonable grounds. A report has to be sent by the court to the High Court, or other authority to which such barrister, pleader, or vakil or attorney is subject in the exercise of his profession, giving the circumstances of the case in which such questions (defamatory questions) were asked without reasonable grounds. The scope of the section is limited to such questions as were asked under the circumstances mentioned in Section 148. 74 "The object of these sections [ Sections 149, 150, 151, 152] is to lay down, in the most distinct manner, the duty of counsel of all grades in examining witnesses with a view to shaking their credit by damaging their character. I trust that this explicit statement of the principles, according to which such questions ought or ought not to be asked, will be found sufficient to prevent the growth, in this country, of that which in England has on many occasions been a grave scandal. I think that the sections, as far as their substance is concerned, speak for themselves, and that they will be admitted to be sound by all honourable advocates and by the public..." 75 "In order to protect witnesses against needless questions of this kind, we enact that any advocate who asks such questions without written instructions (which the Court may call upon him to produce, and may impound when produced) shall be guilty of Contempt of Court, and that the court may record any such question, if asked by a party to the proceedings. The records of the question in the written instructions are to be admissible as evidence of the publication of an imputation intended to harm the reputation of the person affected, and such imputations are not to be regarded as privileged communications, or as falling under any of the exceptions to Section 499 of the Indian Penal Code , merely because they were made in the manner stated. Upon a trial for defamation, it would, of course, be open to the person accused to show, either that the imputation was true, and that it was for the public good that the imputation should be made (Exception 1, Section 499 , Indian Penal Code ), or that it was made in good faith for the protection of the interest of the person making it or of any other person (Exception 9). This is the only method which occurs to us of providing at once for the interests of abona fide questioner and an innocent witness."76 In PHIPSON'S EVIDENCE 13th Edn. para 33.71 at page 807 reference is made to the code of conduct for the Bar of England and Wales which came into force on 1-1-1981. Though applicable to barristers the principles apply to all advocates. Some of them are given below:

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"In all cases it is the duty of a barrister to guard against being made the channel for questions or statements which are only intended to insult or annoy either the witness or any other person or otherwise are in abuse of the counsel's function, and to exercise his own judgement both as to the substance and the form of the questions put or statements made." "In cross-examination which goes to a matter in issue, a barrister may put questions suggesting fraud, misconduct or the commission of a crime if he is satisfied that the matters suggested are part of his client's case and he has no reason to believe that they are only put forward for the purpose of impugning the witness's character." "(a) Questions which affect the credibility of a witness attacking his character, but which are otherwise not relevant to the act ual inquiry, may not be put in crossexamination unless there are reasonable grounds to support the imputation conveyed by the questions. 4b)  A barrister may regard instructions from his solicitor that the imputation is well-founded as reasonable grounds to support an imputation conveyed by such questions; but he may not rely on a statement from any other person unless he has ascertained so far as is practicable that the person can give satisfactory reasons for his statement." "A protracted and irrelevant cross-examination not only adds to the cost of litigation but is a waste of public time. Cross-examination becomes indefensible when it is conducted without restraint and without the courtesy and consideration which a witness is entitled to except in a court of law." "The Court may disallow cross-examination used simply to oppress and not for the purposes of justice. The Code of Conduct of the Bar affirms similar principles. 77 In particular suggestions of crime, fraud or misconduct may not be made unless they are both material and supported on reasonable grounds.78 Moreover, protracted and irrelevant cross-examination adds to the cost of litigation and wastes public time. Cross-examination becomes indefensible when it is conduct without restraint and without the courtesy and consideration which a witness is entitled to expect in a Court of law." 79 (PHIPSON ON EVIDENCE, 15th Edn. (2000), page 250 (para 11-21)). 74 Sullivan v. Norton , ILR 10 Mad 28 (FB). 75 Abstract of Proceedings of the Council of the Governor General of India, Vol. XI (1872) p. 133. 76 Proceedings of the Supreme Legislative Council, Gazette of India, pp. 237, 238, of the Supplement, dated March 30, 1872. 77 (5th ed., 1990) (paras 610(e), (g)). 78 Ibid., (para 610(h)). See also R. v. Neil & Ackers, (1950) 34 Cr App R 108. 79 R. v. Flynn, (1972) Crim LR 428.

2. RIGHT AND RESPONSIBILITY OF COUNSEL LORD ESHER in Munster v. Lamb 80 observed: "The advocate speaks from instruction; he reasons from facts, sometimes true, sometimes false. He does not express his own inferences, his own opinion or his own sentiments, but those which he desires the Tribunal before which he appears, to adopt. This duty the law allows, almost compels him to perform." Where express malice is absent (and it ought not to be presumed), the court having due regard to public policy would be extremely cautious before it deprived the advocate of his protection of Exception 9 to Section 499,I.P.C." 81 When the legal practitioner, by way of suggestions in the cross-examination, puts questions attacking the public prosecutor, or a witness, involving dishonourable conduct, he would be guilty of professional misconduct unless he assures that he has good ground for making those suggestions; if he does not give such assurance, the cross-examination on those lines should be stopped promptly. If it is found,

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at the termination of the trial, that no such ground has existed, for his assurance, then the tribunal (court) should bring the conduct of the advocate to the notice of the High Court. 82 It is not sufficient for a lawyer to plead instructions from the client, as the lawyers have a responsibility in the matter and are not justified in making charges of fraud and crime unless they are personally satisfied that there are reasonable grounds for putting them forward. 83 The counsel pleading is entitled to present the evidence on the record in the best light possible and for that purpose to argue that the complainant and the witnesses are unreliable. He will not be justified in making a personal attack upon the complainant or witnesses on matters not borne out by the record, nor in using language which is abusive or obscene or in making obscene or vulgar gestures in Court. Initiation of contempt proceeding against an advocate arguing the case of a person charged with committing a serious offence will not be justified merely because he said something during the hearing which appears to overstep the limits of fair advocacy. 84 80 11 QBD 588, 603. 81 In re, Nagraj Trikumji, ILR 19 Bom 340; Upendranath v. Emperor , ILR 36 Cal 375. 82 Bans Lochan Lal v. Emperor, AIR 1930 Pat 195; Ayeasha Bi v. Peer Khan Sahib, AIR 1954 Mad 741. 83 Lveston v. Peary Mohan Dass , ILR 40 Cal 898 : AIR 1914 Cal 396. 84 Harbans Kaur v. P.C. Chaturvedi, (1969) 3 SCC 712.

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CHAPTER X OF THE EXAMINATION OF WITNESSES S. 151. Indecent and Scandalous questions. The Court may forbid any questions or inquiries which it regards as indecent or scandalous, although such questions or inquiries may have some bearing on the questions before the Court, unless they relate to facts in issue, or to matters necessary to be known in order to determine whether or not the facts in issue existed. 1. PRINCIPLE AND SCOPE

This section empowers the court to forbid any questions which are indecent or scandalous, unless they relate to the fact in issue, or to matters necessary to be known, in order to determine whether or nor the facts in issue existed, though such questions may have some bearing on the questions before the court. What is relevant cannot be said to be scandalous. 85 Where the fact is issue was not concerning the paternity of a child rather it was concerned with the issue whether the child/son was kidnapped by the accused and murdered, the Court should not have allowed indecent and scandalous imputations on the moral character of the witness, the mother of the victim. 86 Under Section 151, the court has discretion to forbid any question which it regards as indecent and scandalous, although such questions may have some bearing on the question before the court. But, such a discretion cannot be exercised if such questions relate to the facts in issue, or to matters necessary to be known in order to determine whether or not the facts in issue existed.87 A trial judge shall not permit questions which are scandalous, vexations or even cantankerous, which elicit irrelevant or inadmissible answers, or even those which do not advance the trial, but are calculated to hinder or delay its progress. He can put questions in the interest of justice, to clarify matters which are left vague, by either of the parties. 88 Questions touching upon a witness's moral character should not be put to him/her in crossexamination, without any material to substantiate the suggestions. 89 In a proceeding to recover maintenance by a married woman for her illegitimate children, under Section 125 of the Criminal Procedure Code, she "can be examined to prove non-access of her husband during their married life, without independent evidence being first offered to prove the illegitimacy of the children."90 A counsel is entitled to present the evidence on the record in the best light possible and, to argue, that the complainant and the witnesses are unreliable; he should not however make a personal attack upon the complainant or witnesses on matters not borne out by the record, nor use language which is abusive or obscene.91 TAYLOR ON LAW OF EVIDENCE (10th Edn., Section 949, p. 675) observes: "There is a fifth kind of evidence which the law excludes, on public grounds, namely, that which involves the unnecessary disclosure of matter that is indecent, or offensive to public morals, or injurious to the feelings of third persons. A disclosure is for this purpose "unnecessary" whenever the parties themselves have no interest in the matter, except what they have impertinently created. The mere indecency of disclosures will not exclude them, where the evidence is necessary for the purpose of civil or criminal justice, as

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on an indictment for a rape; or on a question upon the sex of one claiming an estate tail, as heir male or for female; or upon the legitimacy of one claiming as lawful heir; or on a petition for dissolution of marriage, for judicial separation, or for damages on the ground of adultery." RAMASWAMY J., of the Madras High Court, in his book "Magisterial and Police Guide" mentioned the opinions of Indian Lawyers, Mahatma Gandhiji, Motilal Nehru and President Rajendra Prasad which is as follows: "It is unfortunate, however, in this country, owing very often to the timidity of courts and a desire not to become unpopular with the Bar, cross-examination is allowed to be carried on to the extent which can only be described as scandalous, with the result that the courts are avoided by respectable people and the administration of justice suffers thereby, and the Bar gets into greater and greater disrepute and becomes unpopular with the public and the judges become objects of contempt." Indecent and scandalous questions can be allowed if they are of such a nature that the truth of the imputation conveyed by them would seriously affect the opinion of the court as to the credibility of the witness on the matter to which the witness testifies, but there must be necessity and foundation for such questions.92 There may be cases in which the counsel can put questions which may appear to be scandalous. 93 A counsel should not act to the dictates or wishes of his client in putting defamatory questions to a witness. He must consider whether there was material to substantiate such imputations; otherwise he takes the risk of being run down for defamation.94 In a case concerning commission of offences relating to pornographic material/acts, evidences as to the subject-matter of which could cause embarrassment not only to the Presiding Officer, both male and female, but also to the lady witnesses/accused as well as to any decent person, the Supreme Court held that Presiding Officer could make adjustments/arrangements in the procedure so as to minimise embarrassment to himself/herself and the witnesses. 95 85 Zamindhar of Tuni v. Bennayya , ILR 22 Mad 155, 159; In re G. Vasantha Pai,AIR 1960 Mad 73. 86 State of U.P. v. Raghubir Singh, (1997) 3 SCC 775 : 1997 SCC 499(Cri), approving Mohd. Mian v. Emperor, 52 IC 54 : (1919) 20 Cr LJ 566(Pat) and Subala Dasi v. Indra Kumar Hazzva, AIR 1923 Cal 315. 87 K. Saraswati Alias R. Kalpana v. P.S.S. Somasundaram Chettiar, (1970) 2 MLJ 119. 88 Mohinder Singh v. State, (1970) 2 Del 854. 89 1984 Guj LH 1055; 1984 Guj LH 473. 90 Roxario v. Ingles, (1893) 18 Bom 468, 472. 91 Harbans Kaur (Smt.) v. P.C. Chaturvedi, (1969) 3 SCC 712; Bans Lochan Lal v. Emperor, AIR 1930 Pat 195. 92 Prakash Raja Ram v. State of Maharashtra, 1975 Cr LJ 1297(Bom) . 93 In Re, Vasantha Pai, AIR 1960 Mad 73. 94 1969 Kesh LJ 27. 95 Fatima Riswana v. State, (2005) 1 SCC 582, 586 (paras 12-14) : AIR 2005 SC 712 : 2005 CrLJ 900.

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CHAPTER X OF THE EXAMINATION OF WITNESSES S. 152. Questions intended to insult or annoy The Court shall forbid any question which appears to it to be intended to insult or annoy, or which, though proper in itself, appears to the Court needlessly offensive in form. 1. PRINCIPLE AND SCOPE

This section empowers the court to forbid questions intended to insult, or annoy or which, proper in itself, appears to the court needlessly offensive in form. It may be noted that under Section 151, the court may forbid any question which is indecent or scandalous, whereas this section says the court shall forbid questions intended to insult, or annoy, or are offensive in form. Under Section 151, the court cannot forbid indecent and scandalous questions if they relate to the facts in issue. But under Section 152, though it appears to the court that the question is proper in itself, but if it is offensive in form, the court shall have to forbid it. In a suit for dissolution of marriage by the husband on the ground of desertion by the wife, a letter written by his wife to a friend of his was relied as a good ground for suspecting her fidelity. The counsel for the plaintiff in the cross-examination put questions suggesting sexual intercourse of the wife with the plaintiff's friend. The contents of the letter justified the husband of her suspecting his wife's fidelity. The High Court castigated the counsel for putting these questions. The Supreme Court held that as the discovery of the letter containing some mysterious sentences was the occasion for the wife to desert her husband, the questions to the defendant in cross-examination were not unjustified. 96 In a case concerning commission of offences relating to pornographic material/acts, evidences as to the subject-matter of which could cause embarrassment not only to the Presiding Officer, both male and female, but also to the lady witnesses/accused as well as to any decent person, the Supreme Court held that Presiding Officer could make adjustments/arrangements in the procedure so as to minimise embarrassment to himself/herself and the witnesses. 97 96 Bipin Chandra Shaw v. Prabhavati, AIR 1957 SC 176. 97 Fatima Riswana v. State, (2005) 1 SCC 582, 586 (paras 12-14) : AIR 2005 SC 712 : 2005 CrLJ 900.

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CHAPTER X OF THE EXAMINATION OF WITNESSES S. 153. Exclusion of evidence to contradict answers to questions testing veracity. When a witness has been asked and has answered any question which is relevant to the inquiry only in so far as it tends to shake his credit by injuring his character, no evidence shall be given to contradict him; but, if he answers falsely, he may afterwards be charged with giving false evidence. Exception 1.--If a witness is asked whether he has been previously convicted of any crime and denies it, evidence may be given of his previous conviction. Exception 2.--If a witness is asked any question tending to impeach his impartiality, and answers it by denying the facts suggested, he may be contradicted. ILLUSTRATIONS 4a) 

A claim against an underwriter is resisted on the ground of fraud.

The claimant is asked whether, in a former transaction, he had not made a fraudulent claim. He denies it. Evidence is offered to show that he did make such a claim. The evidence is inadmissible. 5b)  A witness is asked whether he was not dismissed from a situation for dishonesty. He denies it. Evidence is offered to show that he was dismissed for dishonesty. The evidence is not admissible. 4c)  A affirms that on a certain day he saw B at Lahore. A is asked whether he himself was not on that day at Calcutta. He denies it. Evidence is offered to show that A was on that day at Calcutta. The evidence is admissible, not as contradicting A on a fact which affects his credit, but as contradicting the alleged fact that B was seen on the day in question in Lahore. In each of these cases the witness might, if his denial was false, be charged with giving false evidence. 4d)  A is asked whether his family has not had a blood feud with the family of B against whom he gives evidence. He denies it. He may be contradicted on the ground that the question tends to impeach his impartiality. 1. OBJECT, PRINCIPLE, SCOPE

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This section states that, when a witness is asked a question which is relevant to the enquiry, insofar as it tends to shake his credit by injuring his character, no evidence shall be given to contradict him, whether he denies or gives any reply. It follows that whatever answer is given by the witness, it will be conclusive. The illustrations (a) & (b) explain the above rule. If he answers falsely, he may be charged with giving false evidence. The object of the section is to prevent trials being spun out to an unreasonable length. If every answer given by a witness upon the additional facts mentioned in S. 146 could be made the subject of fresh inquiry, a trial might never end. These matters are after all not of the first importance, beyond what is comprised in the exceptions.1 The section provides two exceptions, when evidence can be given to contradict the denial, when a question is denied by the witness. Exception (1) states that when a witness is asked whether he was convicted previously and he denies it, evidence may be given of his previous conviction. Exception (2) says that when a question is put tending to impeach his impartiality and it is denied, then evidence can be given to contradict that denial. Illus. (c) and (d) explain Exception No. (2). This is a salutary rule and is meant to curtail every inquiry. If contradictory evidence be allowed on side issues for instance, as shaking the witness's credit by injuring his character, there can be no limit to an enquiry. The main issue in the case is almost always likely to be fogged by subsidiary inquiries which are profitless as well as perplexing. The two exceptions engrafted on the section are capable of easy proof and are material in assessing the weight to be attached to the testimony of an individual witness. When a question affects only the credit of the witness and is not relevant to the matters in issue the answer of the witness cannot be contradicted by other evidence except in exceptional cases. 2 The evidence of a witness cannot be contradicted by citing other witness saying anything relating to him. 3 If the credit of the witness is sought to be impeached under Section 153, then whatever answers given by the witness have to be taken, and further evidence cannot be allowed. The credit of the witness can also be impeached under Section 155; but, Section 155 does not allow evidence of general bad character of the witness.4 The Privy Council observed: "Sections 153 and 155, Indian Evidence Act , must be strictly construed and narrowly interpreted if the courts governed by that statute ought to be spared the task in many suits of prosecuting, on most imperfect material, issues which have no bearing upon that really in contest between the parties.Section 153 does not go far beyond, if it goes at all beyond, the case of A.G. v. Hitchocock, (1847) 1 Ex. 91".5 The Supreme Court also held that Section 153 and 155 must be strictly construed; that Section 146 shall not be read with Section 153 in its entirety; that under exception (2) of Section 153, a witness may be contradicted by evidence when he denies any question tending to impeach his impartiality. 6 It was observed: "The rule is founded on two reasons:--first, that a witness cannot be expected to come prepared to defend, by independent proof, all the act ions of his life; and next, that to admit contradictory evidence on such points would of necessity lead to inextricable confusion, by raising an almost endless series of collateral issues. The rejection of the contradictory testimony may indeed sometimes exclude the truth; but this evil, acknowledged though it be, is nothing compared with the inconveniences that must arise were a contrary rule is to prevail." 7 POLLOCK, C.B., said that a witness may be contradicted as to anything he denies having said, provided it be "connected with the issue as a matter capable of being distinctly given in evidence, or it must be so far connected with it as to be a matter which, if answered in a particular way, would contradict a part of the witness's testimony; and if it is neither the one nor the other of these, it is collateral to, though in some sense it may be considered as connected with, the subject of inquiry. A distinction should be observed between those matters which may be given in evidence by way of

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contradiction, as directly affecting the story of the witness touching the issue before the jury, and those matters which affect the motives, temper, and character of the witness, not with respect to his credit but with reference to his feelings towards one party or the other." TAYLOR (8th Ed., Section 1295 & 1438) states: "With respect to all questions put to a witness on cross-examination for the purpose of directly testing his credit, it may be broadly laid down, that if the questions relate to relevant facts, the answers may be contradicted by independent evidence, if not irrelevant, they cannot." In FIELD ON EVIDENCE(11th Edn., Vol. 5, P. 4854) it is observed: "The Indian Evidence Act adopts the same principle. The exceptions to the rule are taken from English law--the first from the 25th section of the Common Law Procedure Act, 1854, the second, being in accordance with a strongly intimated opinion of the Baron of the Exchequer in the case of theAttorney-General v. Hitchcock .8 Except in the case of exceptions mentioned in Section 153, a witness's answer to the questions tending to shake his credit cannot be contradicted, nor by Section 153 can former contradictory statements be proved, unless that part of the witness's evidence, which they contradicted, was itself liable to be contradicted.9 Where the prosecution and the defence side gave divergent versions of the incident of murder and the defence witness deposed that the prosecution witness was along with him at a different place in connection with the sale of a lorry, it was held that the evidence of the defence witness was admissible and the sale receipt bearing the signature of the prosecution witness was not unreliable merely because the prosecution witness was noted as present in the inquest report. Hence the presence of the prosecution at the place of occurrence was doubtful. 10 1 MARKBY, 108. 2 Ram Bali v. State, AIR 1952 All 289, 292. 3 State of Karnataka v. K. Yarappa Reddy, 2000 Cr LJ 400 (paras 31-33) (SC) : AIR 2000 SC 185. 4 Maung San Myin v. Emperor, AIR 1930 Rang 49. 5 Bhogilal Bhikachand v. Royal Insurance Co., AIR 1928 PC 54, 63. 6 Ramareddy v. V.V. Giri, AIR 1971 SC 1162. 7 Attorney General v. Hitchcock, (1847) 1 Ex. 91. 8 (1847) 1 Ex 91 100. 9 Ayeasha Bi v. Peer Khan Sahib, AIR 1954 Mad 741. 10 Vijayan v. State, AIR 1999 SC 1311.

2. IF HE ANSWERS FALSELY, HE MAY AFTERWARDS BE CHARGED WITH GIVING FALSE EVIDENCE These words were apparently inserted in forgetfulness of the fact that the Indian law as to false evidence differs from the English law as to perjury in not requiring that the matter charged as false should have been material to the issue.11 11 STOKES, Vol. II, p. 929, f.n. 2.

3. WITNESS DENYING HIS PREVIOUS CONVICTION [EXCEPTION (1)]

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Under the first exception when a witness denies the suggestion that he was previously convicted of an offence, then evidence can be given of his previous conviction, by producing a certified copy of the order of conviction from the officer-in-charge of a jail or from the court, as per the provisions of Section 298of (old) Cr.P.C. (nowSection 294). Where a witness who was questioned as to whether he was not an act ive criminal and whether he was not under police surveillance, denied the suggestions, the evidence given to contradict him had nothing to do with his previous conviction or with the impeachment of his impartiality, but was only intended to impeach his character. Therefore, the evidence to contradict the denial was held not admissible under Section 153. But proof of previous conviction is admissible. 12 12 Kamala Kanto Das v. State, AIR 1959 Cal 342.

4. WITNESS DENYING SUGGESTIONS TO IMPEACH HIS IMPARTIALITY [EXCEPTION (2)] The Supreme Court held that under Exception (2) to Section 153 a witness may be contradicted by evidence when he denies any question tending to impeach his impartiality. 13 13 Rama Reddy v. Y.Y. Giri, AIR 1971 SC 1162.

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Ratanlal & Dhirajlal: Law of Evidence, Updated 23rd Edition/THE INDIAN EVIDENCE ACT (ACT 1 OF 1872)/PART III PRODUCTION AND EFFECT OF EVIDENCE/CHAPTER X OF THE EXAMINATION OF WITNESSES/S. 154.

CHAPTER X OF THE EXAMINATION OF WITNESSES S. 154. Questions by party to his own witness. 9)  The Court may, in its discretion, permit the person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party. 1(2)  [ Nothing in this section shall disentitle the person so permitted under sub-section (1), to rely on any part of the evidence of such witness]. 1. PRINCIPLE AND SCOPE

This section states that the court in its discretion can allow a party to put any questions to its own witness which might be put in cross-examination by the opposite party. The court is expected to find out the truth of the case put forward by both the parties. With that object this provision is made empowering the court to use its discretion to allow a party to put questions to his own witness which might be put in the cross-examination by the opposite party. The witness can be asked (1) leading questions u/s. 143, (2) questions relating to his previous statements in writing under Section 145, and (3) questions which tend to test his veracity under Section 146. Thus the ordinary rule that a party calling a witness is not to be allowed to ask such questions, is relaxed in this section. This relaxation is made with the sole purpose of finding out whether the witness is one of truth for the purpose of relying on his evidence. Where a party calling a witness and examining him discovers that he is either hostile or unwilling to answer questions put to him, he can obtain permission of the Court to put questions to him which may be put to him by way of cross-examination. The section does not say that a person who calls a witness may cross-examine him in certain circumstances, but he might put questions to him which might be put in cross-examination by the adverse party. That is not the same as cross-examination. 15 Under this section, before a party calling a witness can cross-examine him, it is not necessary that the witness should first be declared to be hostile to the party calling him, and the Court has unfettered discretion to allow a counsel to put questions of a cross-examination nature to his own witness even though he did not show himself hostile to the party calling him, but the Court ought not to exercise its discretion unless during the examination-in-chief something happens which makes it necessary for the facts to be got from that witness by cross-examination; it is necessary before the procedure under this section can be adopted that leave of the Court should be asked for and obtained or permission given by the Court suo motu for the said purpose before such questions are put to a witness though the section may not make such a procedure imperative and the permission contemplated by the section should be signified, if not in words, by some other action of the Court indicating its permission during the cross-examination of the witness by the party calling him. 16 It was held by the Madras High Court that the reason why courts in India are given a much wider discretion than that of in England is in all probability to avoid the conflict which had existed in England over the words "hostile" and "adverse".17

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This section does not speak about declaring a witness as a hostile witness but allows the party with the permission of the court to cross-examine his own witness; in the same manner as the opposite party does.18 RANKIN C.J., in Profulla Kumar Sarkar v. Emperor 19 while considering the observations made in Bikram Ali v. Emperor, 20 observed: "Upon this I would make two observations: first, the reason why Section 154 does not say that with the permission of the court a party may cross-examine his own witness is simply that this would in strictness be a contradiction in terms. Cross-examination means examination by the opposite party as distinct from the party who calls the witness (Section 137) this is I think the whole explanation of the use of the phrase "put any questions to him which might be put in cross-examination by the adverse party". The second observation is that while the mere putting of a question in a leading form is not necessarily tantamount to cross-examination, there is no doubt as to the power of the judge to give leave to put a leading question to one's own witness. This is plain from Section 142, the second part of which goes further than English Law and requires the Judge to give permission in certain cases." The utility of cross-examination under Section 154 is supposed to be that it is a means whereby the court can more readily get the truth out of the witness, as the party's own witness unexpectedly makes statements adverse to the party calling him.21 Section 154 of the Evidence Act does not specify the stage at which a person, who calls a witness, shall be allowed to be put to such a witness such questions, which might be put to the witness, in cross-examination, by the adverse party. Section 154, strictly speaking, enables the Court to reach the truth or otherwise of an issue, which may arise during the progress of a trial. Section 154 nowhere, uses the expression, such as, 'adverse witness' or 'unfavourable witness'. The cross-examination of a witness is not necessarily confined to a situation, where the witness exhibits an element of hostility or where he is shown to have resiled from any statement made in the past. Even in a case, where the Court is satisfied that the witness is not speaking the truth and it is necessary to cross-examine him in order to enable the party, which has called the witness, to bring out the truth from the witness, it becomes the duty of the Court to allow to be put to such a witness all such questions, which might be put to him, in cross-examination, by the adverse party, for denial of such permission would make the entire trial a farce inasmuch as the Court would not come to know as to what the truth of the matter was. However, for exercise of power under Section 154, there must be materials to show that the witness is not stating the truth or that he has turned hostile to the party, which has called him, or that the witness has resiled from his previous statement.22 An effective and successful conclusion of trial is not possible and justice will remain elusive if the Court, though, on materials placed before it, is satisfied that the witness is withholding the truth and his cross-examination is necessary to extract truth, does not permit examination of such a witness by the party, who has called the witness. Since the contingency to extract truth may arise at any stage of a trial. Section 154 consciously drafted, does not speak of the stage, when such a permission can be granted. When the legislature has chosen not to put any fetters on the exercise of power under Section 154 of the Evidence Act, the Court cannot read into this section that the power contained therein is subject to the provisions of Sections 137 and 138. These two Sections merely indicate as to who shall be examined in which order and how the examination of witness shall proceed and be completed. The two sections do not put fetters on the exercise of jurisdiction by the Court in an appropriate case under Section 154. However, the exercise of discretion under Section 154 does not amount to adjudication by the Court as to the veracity of the witness. Since the Court's aim is to reach the truth, the power under Section 154 needs to be liberally exercised if the Court is satisfied that the witness is unwilling to speak the truth or what the witness is speaking is belied by the contemporaneous materials on record. When a witness is cross-examined with the leave of the Court, by the party, who calls him, the evidence of such a witness cannot be treated to have washed off the record altogether and it is for the Court to consider, in each case, whether, as a result of such crossexamination, the witness stands thoroughly discredited or can still be believed with regard to a part of his testimony.23

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14 Section 154 renumbered as sub-section (1) thereof and after sub-section (1) as so numbered, sub-section (2) inserted by the Criminal Law (Amendment) Act, 2005 (2 of 2006),Section 9. Enforced w.e.f. 16-4-2006 vide Notification No. S.O. 523(E), dt. 12-4-2006. 15 Bikram Ali Pramanik v. Emperor, (1929) 57 Cal 801; Luchi Ram Motilal Boid v. Radha Charan Poddar, (1921) 49 Cal 93; Khijiruddin Sonar v. Emperor, (1925) 53 Cal 372; Dadabuddappa Gouli v. Kalu Kanu Gouli, AIR 2000 Kant 158 (paras 5-8 and 14). 16 Ammathayarammal v. Official Assignee, Madras, (1932) 56 Mad 7 : AIR 1933 Mad 137; Mohan Banjari v. KingEmperor, (1933) 30 NLR 55 : AIR 1933 Nag 384. 17 Ammathayarammal v. Official Assignee, High Court, AIR 1933 Mad 137. 18 Baikuntha v. Prasannamoyi, AIR 1922 PC 409; State v. Mohan Hira, AIR 1960 Guj 9; Tulasi Ram Shaw v. R.C. Pal Ltd., AIR 1953 Cal 160. 19 AIR 1931 Cal 401, 404 (FB). 20 AIR 1930 Cal 139. 21 Maharani Knirod Kumari Devi v. Ghasi Kuar, ILR 1962 Cut 767 dissenting from Krutibas Sahu v. Madhab Das, AIR 1961 Ori 48. 22 Atul Bora v. Akan Bora, AIR 2007 Gau 51, 54-55 (paras 8 and 10). 23 Atul Bora v. Akan Bora, AIR 2007 Gau 51, 55 (para 11).

2. THE COURT MAY IN ITS DISCRETION The law has advisedly left the matter entirely at the discretion of the trial judge who has the benefit of watching the witness in the box and hearing him giving the evidence. Such discretion vested in a court has to be exercised judicially. The appellate court can interfere with discretion exercised by the trial court in case of improper exercise on the material available. 24 When the appellate court holds that permission to cross-examine the witness should have been given by the trial court, the proper thing to do would be to send back the case to the trial court to take the evidence of the said witness further after granting permission to the prosecution to cross-examine its witness. Without doing that the appellate court cannot straight-away proceed to reject the evidence of the said witness as if he was hostile and had been won over by the defence. 25 Order allowing party to cross-examine its own witness is purely discretionary and will not be interfered with in revision.26 A party who calls on opponent as a witness has no right to cross-examine him, however hostile he may be, without the leave of the Judge. Whether a witness is a litigant or not, it is a matter of discretion in the Judge whether he shows himself so hostile as to justify his cross-examination by the party calling him.27 The Supreme Court in Dayabhai Chahaganbhai Thakkar v. State of Gujarat 28 observed: " Section 137 gives only the three stages in the examination of a witness, namely, examination-in-chief, crossexamination and re-examination. This has no relevance to the question when a party calling a witness can be permitted to put to him questions under Section 154; that is governed by the provisions of Section 154 which confers a discretionary power on the court to permit a person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party. Section 154 does not in terms, or by necessary implication, confine the exercise of the power by the court before the examination-in-chief is concluded or to any particular stage of the examination of the witness. The discretion is entirely left to the court to exercise the power when the circumstances demand. The court, therefore, can permit a person, who calls a witness, to put questions to him which might be put in the cross-examination at any stage of the examination of the witness, provided it takes care to give an opportunity to the accused (opposite party) to cross-examine him on the answers elicited which do

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not find place in the examination-in-chief. Section 154 cannot be invoked after chief examination, cross-examination and re-examination are over.29 The Supreme Court observed: "The discretion conferred by Section 154 on the court is unqualified and untrammeled and is apart from any question of hostility. It is to be liberally exercised whenever the court from the witness's demeanour, temper, attitude, bearing, or the tenor and tendency of his answers, or from a perusal of his previous inconsistent statement, or otherwise, thinks that the grant of such permission is expedient to extract the truth and to do justice. The grant of such permission does not amount to an adjudication by the court as to the veracity of the witness. Therefore, in the order granting such permission, it is preferable to avoid the use of such expression, such as, "declared hostile", "declared unfavourable", the significance of which is not still free from the historical cobwebs which, in their wake bring a misleading legacy of confusion, and conflict that had so long vexed the English Courts... The evidence of such a witness cannot, as a matter of law, be treated as washed off out of the record. The Judge has to consider whether it could still be believed in regard to a part of his testimony."30 Where the witness called by the prosecution resiled from his expected stand even in examination-in-chief, the Public Prosecutor did not seek permission to cross-question him at that stage and let the defence cross-examine that witness and thereafter he sought permission to crossexamine him which the Court refused, the Supreme Court declined to hold that the trial Court had gone wholly wrong in declining to exercise the discretion envisaged under Section 154 in favour of the prosecution.31 The discretion of the court must be exercised judicially. It should not be exercised without reason and the reason must be stated. The witness should exhibit an element of hostility or resile from a material statement made before an earlier authority or not be speaking the truth. There must be some material to show that the witness is not speaking the truth. Merely because a witness in an unguarded moment speaks the truth which may not suit the prosecution or which may be favourable to the accused, the discretion to allow cross-examination of ones own witness cannot be exercised. In R.K. Dey v. Orissa, 32 the witnesses in their statements before the police attributed a clear intention to the accused to commit murder but before the Court they stated that the accused was insane. The right to crossexamine them was upheld. But this does not make him an unreliable witness so as to exclude his evidence from consideration altogether.33 The Court has the discretion under this section, to permit the prosecution to test, by way of cross-examination, the veracity of their own witnesses with regard to the (unconnected) matters elicited by the defence in cross-examination. 34 Leading questions are allowed to be put to a party's own witness when such witness appears to be not only adverse but also hostile to the party, or if the witness tries to defeat the party's case by suppressing the truth.35 The fact that a witness was permitted to be cross-examined under Section 154 by the Committing Magistrate would be of no avail in the Sessions Court, as the Sessions Court has to independently decide whether or not to give permission to cross-examine one's own witness, as required under Section 154.36 Merely because permission was given under Section 154 the nature of the examination of a witness by the party who calls him, is not changed from the examination-in-chief to cross-examination. 37 It is not necessary to make a formal declaration that a witness is hostile before permission is granted under Section 154. The discretion in granting permission is a judicial discretion which should be exercised in a judicious way. For the purpose of discovering the truth, it is open to the court to act either under Section 154 to a limited extent or under Section 142 which allows leading questions to be put in examination-in-chief, even if objected to, with the permission of the court. 38 Permitting the public prosecutor to put questions to his own witness without declaring the witness as hostile is illegal.39 Refusal by the court to allow a witness to be cross-examined does not necessarily imply that he considered him to be a truthful witness.40 24 State of Mysore v. Sobhappa, (1961) 2 Cr LJ 653(Mys) . 25 Muhsan Ali v. Union Territory of Tripusa Lall, AIR 1964 Tri 45.

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26 1971 All Cr R 354. 27 Price v. Manning, (1889) 42 Ch D 372. 28 AIR 1964 SC 1563. 29 Rabindra Kumar Dey v. State of Orissa, AIR 1977 SC 170 followed in reversing (1971) 1 Cut WR 510; See also Pran Krishna Das v. State, (1971) 2 Cal 392; Rajesh Kumar Jain v. State of Orissa, 2008 CrLJ 4472, 4473 (paras 6 and 7) (Ori). 30 Sat Paul v. Delhi Administration, AIR 1976 SC 294. See also Janardan v. State of Kerala, 1979 Mad LJ 49(Cri) (Ker) ; State of Orissa v. Surendra Paramanik, (1962) 28 Cut LT 625. 31 State of Bihar v. Lalu Prasad, AIR 2002 SC 2432 (paras 5 & 6) : (2002) 9 SCC 626 : 2002 CrLJ 3236; See also K. Anbazhagan v. Superintendent of Police, AIR 2004 SC 524 (para 32) : 2004 CrLJ 583. 32 AIR 1949 Pat 415. 33 Bhagwan Singh v. State of Haryana, AIR 1976 SC 202, 203; Rabindra Kumar Dey v. State of Orissa, AIR 1977 SC 170; State v. Subhappa, (1961) 2 Cr LJ 653(Mys) ; State of Mysore v. Subhappa, ILR 1960 Mys 742. 34 Amrita Lal Hagara v. Emperor, (1915) 42 Cal 957. 35 Kala Chand Sahai v. Queen Empress, 13 Cal 53. 36 Sailendra Kumar v. State of Tripura, AIR 1959 Tripura 11, 15. 37 State v. Mohan Hira, AIR 1960 Guj 9; Banshilal v. State, 1981 JLJ 143(DB) . 38 Sivhamurthy Swamy v. Agodi Songonna, AIR 1969 Mys 12; State v. Ramesh Chandra, (1974) 1 Del 129. 39 Koli Nana Bhana v. State of Gujarat, 1986 Cr LJ 571(Guj) . 40 State v. Genda Lal, AIR 1950 MB 89.

3. POWERS OF COMMISSIONERS The discretion to declare a witness hostile has not been conferred on the Commissioners appointed by the Court. The powers delegated to the Commissioner under O. XXVI, Rr. 16, 16-A, 17 and 18 do not include his discretion (para 10). If a situation as to declaring a witness hostile arises before a Commission recording evidence, the party concerned shall have to obtain permission from the Court under Section 154 of the Evidence Act and it is only after grant of such permission that the Commissioner can allow a party to cross-examine his own witness. Having regard to the facts of the case, the Court may either grant such permission or even consider to withdraw the Commission so as to itself record the remaining evidence or impose heavy costs if it finds that permission was sought to delay the progress of the suit or harass the opposite party. (para 11). 41 41 Salem Advocate Bar Association v. Union of India, (2005) 6 SCC 344, 361 (paras 10 and 11) : AIR 2005 SC 3353.

4. HOSTILE WITNESS Hostile witnesses are those who are trying to defeat the prosecution by suppressing the truth. A witness who is unfavourable is not necessarily hostile, because a hostile witness is one who from the way in which he gives evidence would show that he is not desirous of telling the truth to the court. 42 A witness who states the truth cannot be dubbed as "hostile" just because his statement does not suit the party producing him.43 Merely because a prosecution witness did not state before the Court about the involvement of the accused in the crime, though the same was mentioned in the complaint, such a witness could not be termed hostile.44

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A witness who is gained over by the opposite party is a hostile witness. 42 Kalachand Sahai v. Queen Empress, ILR 13 Cal 53; Luchiram v. Radha Charan, ILR 49 Cal 93; Yusuf v. State of U.P., 1973 Cr LJ 1220; Dhruba Padhan v. State, (1983) 56 Cut LT 251; Panchanan Gogai v. Emperor, (1930) 57 Cal 1266. 43 Durga Dutt v. Chandanu, AIR 1956 HP 58; P.C. Pai v. Agricultural I.T. Officer, AIR 1970 Mys 168; State v. Nilam Das, 1952 HP 74; Shanker Nath v. Jagat Ram, ILR 1975 HP 46. 44 State v. Murugan, 2002 CrLJ 670, 674 (paras 21 & 22) (Mad) : 2001 (2) Mad LW (Cri) 815.

5. WHEN A WITNESS CAN BE TREATED AS HOSTILE When a prosecution witness states something which is destructive of the prosecution case, the prosecution is entitled to pray that the witness be treated as hostile; in such a case the trial court must allow the public prosecutor to treat the witness as hostile. 45 The mere fact that the evidence of a witness tends to be favourable to the accused as elicited by the defence in cross-examination would not be a valid ground to declare such a witness as a hostile. 46 Merely because a witness speaks about the truth which may not suit the party on whose behalf he is deposing and the same is favourable to the other side, the Court can not exercise its discretion to allow that party to cross-examine its own witness by declaring him hostile 47 unless such a witness is suppressing the truth and exhibits hostile animus which has to be judged on the basis of the answers given by him.48 There must be some material to show that the witness has given back his earlier statement or is not speaking the truth or has exhibited an element of hostility or has changed sides. 49 In PHIPSON ON EVIDENCE 15th Ed. (2000), para 11-58, page 276 it is observed: "Adverse" means "hostile",50 that is, when in the opinion of the judge51, he bears a hostile animus to the party calling him and so does not give his evidence fairly and with a desire to tell the truth to the court. He is not adverse in the statutory sense when his testimony merely contradicts his proof or because it is unfavourable to the party calling him.52 A witness who is not compellable but chooses to give evidence may be treated as hostile.53 The Court of Appeal has said that an application to treat a witness as hostile must be made at the instant it is obvious that he is showing unmistakable signs of hostility. 54 The expression "hostile witness" has been avoided because of the confusion caused by it in English Law. The section confers a simple discretion upon the Court to allow a party to cross-examine his own witness.55 In short, the rule prohibiting a party to put questions to his own witness in the manner of cross-examination or in a leading form is relaxed not because the witness has already forfeited all right to credit but because of his antipathetic attitude or otherwise the Court feels that for doing justice, his evidence will be more fully given, the truth more effectively extracted and credit more adequately tested by questions put in a more pointed, penetrating and searching way. The expression "any questions that may be asked by the adverse party in cross-examination" shows that neither party is excluded from relying on his testimony. This section does not warrant an inference that, only when any previous statement of the witness is available and if he is alleged to have departed from that, the Court can declare that witness hostile. 56 Inconsistent and contradictory statements are not enough. The witness must appear to be not desirous of telling the truth and it is necessary to regard him hostile for eliciting the truth. 57 Mere presentation of an application by the prosecution or representation that a certain witness had been won over is not conclusive of the allegation. In such a case the witness can be produced for crossexamination by the accused which would elicit correct facts. Inference of hostility of a witness should be drawn only from the answers given by him and to some extent from the demeanour. 58 Where the earliest information of the occurrence as given by the witness was recorded by the police constable who was not shown not to have cordial relations with the witness, nor the witness at any point of time complained about recording of version as told by him, the grant of permission to the prosecution to treat the constable as a hostile witness and to put the questions to him in cross-examination simply because the prosecution itself had given a different version to suit its convenience, was not warranted.59 The prosecution witness cannot be declared hostile merely on the ground that he did not

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concur with the suggestion made by the public prosecutor only on a post event detail. 60 When a witness was not confronted with any contradiction in the trial court he cannot be treated as a hostile.61Where the person has not yet been called as a witness in the case, on mere apprehension that he will not support the case of the party, he cannot be declared as a hostile witness by invoking Section 154 of the Evidence Act in absence of any compelling reason. 62 When a witness gives answers fatal to the case of the prosecution, it would be wrong for the prosecutor not to exercise its right to seek permission to put leading question by treating him as hostile.63 Eye-witnesses were declared hostile for the reason that they did not state specifically at the trial that they had seen the accused firing.64 The party who seeks permission of the court must lay a foundation for cross-examining his own witness. The court has to look into the previous statements of a witness, if any, whether the witness was actually resiling from the position taken during investigation, before declaring him as hostile. 65 Where there was no material to show that the prosecution witness had resiled from his statement made during investigation, the prosecution could not be permitted to cross-examine him. 66 Where the witness does not exhibit an element of hostility to the party for whom he is deposing, permission to cross-examine him can not be granted67 but permission can be granted to recall and cross-examine one's own witness where the witness has resiled from his original statement on a material aspect. 68 When the witness makes two contradictory statements he can be permitted to be cross-examined for eliciting the truth under Section 154.69 A witness need not be declared hostile for allowing the prosecution to cross-examine his own witness under the proviso to Section 162 (1),Cr. P.C.70; so also where the public prosecutor after obtaining the permission had asked a question to a prosecution witness with regard to the role played by two of the accused persons on the basis of his police statement. 71 Even if a party calling a witness, wants to treat him as hostile his opinion as to the hostility is not final, and binding on the court. When the witness deposes in favour of the party calling him the court still is entitled to either believe or dis-believe him.72 The mere fact that at a Sessions trial a witness tells a different story from that told by him before the Magistrate does not necessarily make him hostile. The proper inference to be drawn from contradictions going to the whole texture of the story is not that the witness is hostile to this side or to that, but that the witness is one who ought not to be believed unless supported by other satisfactory evidence.73 45 G.S. Bakshi v. State (Delhi Administration), AIR 1979 SC 569. 46 Yusuf v. State of U.P., 1973 Cr LJ 1220. 47 S. Murugesan v. S. Pethaperumal, AIR 1999 Mad 76 (paras 7 and 12). 48 K.Kusuma Kumari v. G. Surya Bhagwan, 1996 AIHC 2627 (para 17) (AP). 49 Shanmuganathan v. Vallaiswamy, 1997 AIHC 2716 (paras 6 and 11) (Mad). 50 Greenough v. Eccles, (1859) 5 C.B. 786(N.S.) . The witness is described in the specimen direction to the jury suggested by the Judicial Studies Board as a witness who has "changed sides". 51 Which is final: Rice v. Howard, (1886) 16 QBD 681; R. v. Williams, (1913) 29 TLR 188; R. v. Manning, (1968) Crim LR 675. 52 Greenough v. Eccles, (1859) 5 C.B. 786(NS) ; R. v. Smith, (1909) 2 Cr App R 86, 106, per JELF J., disapproving the decision of Coleridge J. at the trial; Cf. R v. Little, (1883) 15 Cox 319, R. v. Williams, (1913) 8 Cr. App. R. 113. 53 R. v. Pitt, (1983) QB 25. 54 R. v. Pestano, (1981) Crim LR 397. 55 Sat Paul v. Delhi Admn., AIR 1976 SC 294. (The Court explains at this stage the purpoose of cross- examination and the validity of some of the Calcutta High Court decisions to the effect that once a witness is declared hostile his testimony cannot be used at all).

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56 Sahdeo Tanti v. Gipti, AIR 1969 Pat 415. 57 Phanindra Nath v. Bholanath Banerjee, AIR 1982 Cal 397. 58 State of U.P. v. Jaggo, AIR 1971 SC 1586; In re Vengala Reddy,AIR 1956 AP 26, 29; Sat Paul v. Delhi Administration, AIR 1976 SC 294; In re Vengata Reddy,1956 Andhra 26; P.P. v. Subramanaya Odayar, 1937 Mad WN 557(FB) ; Indra Mohan Brahma v. State of Assam, 1982 Cr LJ 127(NOC) (Gau) ; Madhusudan Prasad Agarwal v. State of Bihar, 1973 Cr LJ 1582(Pat) ; Ashim Das v. State of Assam, 1987 Cr LJ 1533(Gau) (DB); Gura Singh v. State of Rajasthan, 2001 Cr LJ 487 (para 12) (SC) : AIR 2001 SC 330. 59 Mahalingam v. State, 1995 Cr LJ 1991 (para 13) (Mad). 60 Gura Singh v. State of Rajasthan, 2001 Cr LJ 487 (para 13) (SC) : AIR 2001 SC 330. 61 Bir Singh Majhi v. State of Assam, 1977 Cr LJ 1349(Gau) . See also State of Maharashtra v. Flora Santuno Kutino, 2007 CrLJ 2233, 2237 (para 23). 62 Rehana Begum v. Mirza M. Shaiulla Baig (D) by LRs, 2005 AIHC 4408, 4409 (Kant) : AIR 2005 Kant 446, 447 (para 8). The Court relied on AIR 1977 SC 170. 63 Food Inspector v. A.K. Ahammad Haji, 1983 Mad LJ 280(Cri) : 1984 Cr LJ 82(NOC) . 64 Dagdu v. State of M.P., AIR 1999 SC 2639 (para 3). 65 Lalu v. State, AIR 1960 Cal 776; Saraswathamma v. Bhadramma, AIR 1970 Mys 157; Ranjith Singh v. State, AIR 1952 HP 81. 66 Samir Das v. State of Tripura, 1999 Cr LJ 953 at p. 955 (Gau). 67 Public Prosecutor, A.P. High Court v. Thummala Janardhana Rao, 1998 Cr LJ 4450 (para 12) (AP). 68 Shanmuganathan v. Yallaiswamy, 1997 AIHC 2716 (paras 11 and 12) (Mad). 69 ILR 1975 HP 46. 70 State v. Mohan Hira, AIR 1960 Guj 9; State v. Balchand, AIR 1960 Raj 101; Krutibas Sahu v. Madhab Das, AIR 1961 Ori 48; Tulsiram Shaw v. R.C. Pal, Ltd., AIR 1953 Cal 160. 71 K. Naga Subba Reddy v. Public Prosecutor, A.P. High Court, 2000 Cr LJ 3452 (para 16) (SC) : AIR 2000 SC 3480. 72 State of Mysore v. Raju Shetty, AIR 1961 Mys 74. 73 Kalachand Sircar v. Queen-Empress, (1886) 13 Cal 53; Nga Nyein v. King-Emperor, (1932) 11 Ran 4.

6. PROCEDURE The Court can permit a person, who calls a witness, to put questions to him which might be put in the cross-examination at any stage of the examination of the witness, provided it takes care to give an opportunity to the adverse party to cross-examine him on the answers elicited which do not find place in examination-in-chief.74 The proper stage for allowing the party to cross-examine his own witness is when he was being examined in-chief or in re-examination. And there is no scope for allowing the party when the witness was in the charge of the adversary for the purpose of cross-examination. 75 Where a witness who is a competent witness has been tendered by the prosecution and oath has been administered by him, it is the prosecution which should technically be deemed to have called him although it did not put a single question to him. And the court cannot be said to act illegally in allowing him to be cross-examined under Section 154.76 Where the prosecution dropped a witness without declaring him as hostile, the defence applied for cross-examination of the said witness. It was held that the prosecution cannot object to take into consideration evidence of the said witness who was cross-examined by the defence only because he was not examined by the prosecution.77

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Where while being cross-examined by the plaintiff's counsel, a letter was produced by the defence witness whereby the defendant was taken by surprise, it was held that the court was right in allowing the defendant to cross-examine his witness, that the cross-examination is permitted only in regard to the genuineness and content of the letter.78 Under Section 154 the maker of the statement alone and none else can be contradicted with his previous statement.79 A witness examined by the prosecution in the committing Magistrate's court, was tendered in the Sessions Court for cross-examination by defence, without his previous statement in the Committal court being brought on the record. After the cross-examination the prosecution again cross-examined the witness without obtaining the leave of the court as required by Section 154. It was held that so much of the evidence elicited from the witness by cross-examination of the prosecution was not properly and legally obtained, and to that extent the accused must be held to be prejudiced. 80 74 Dahyabhai v. State of Gujarat, AIR 1964 SC 1563. 75 Kailas Bais v. State, 1982 Jab LR 823(MP) . 76 Manzurul Haque v. State of Bihar, AIR 1958 Pat 422; Sahdeo Tanti v. Gipto Pasan, AIR 1969 Pat 415. 77 1979 Cr LR 531 (Guj). 78 Malappa v. Guramma, AIR 1956 Bom 129; reversed on another point in Guramma v. Mallapa, AIR 1964 SC 510; Chummilal Ojha v. Mulsmkar Ojha, ILR 1961 Cut 635 (rejection of permission to cross-examine his own witness was held wrong); Ranjit Singh v. State, AIR 1952 HP 81 (refusal of permission held wrong) relying on Amritlal Hazra v. Emperor, AIR 1916 Cal 188. 79 State of Bihar v. S.K. Mehta, 1966 Cr LJ 343, 349 (Pat). 80 Dhirendra Nath v. State, AIR 1952 Cal 621, 627.

7. EVIDENTIARY VALUE In cases, even if witnesses go hostile and are cross-examined by the Public Prosecutor then it is for the Court to consider in each case whether on account of such cross-examination and contradictions, the credibility of the witness stands shattered or if his testimony or part of it can still be believed. If on cross-examination of the witness, it has lost the confidence of the Court and his credit has not been completely shaken and if his testimony when read as a whole with care and caution and corroborated by other evidence on those material points satisfies the conscience of the Court to act upon his testimony then no embargo can be placed to disbelieve such witness merely on account of the fact that he has been declared hostile.81 The probative value of the evidence of a hostile witness depends on the quality and the confidence it generates in the mind of the Court after being subjected to a close scrutiny. If the testimony of such a witness placed in juxta-position to the other evidence on record does not appear to be consistent and acceptable the same cannot be relied upon. It is only after assessing the intrinsic worth of his testimony with utmost care and caution that either the prosecution or the defence may rely on any part thereof which is consistent with its case.82 The Court should always be slow in act ing on the evidence of a hostile witness. It should require corroboration by other reliable evidence. But the evidence may not be rejected outright because he makes different statement at different times.83 It is not quite strange that some witnesses do turn hostile but that by itself would not prevent the Court from finding an accused guilty if there is otherwise acceptable evidence in support of the prosecution. 84 When a witness is declared hostile and when his testimony is not shaken on material points in the cross-examination, there is no ground to reject his testimony in toto.85 The Court is not precluded from taking into account the statement of a hostile witness altogether and it is not necessary to discard that same in toto and can be relied upon partly. 86 The evidence of hostile witness is admissible in evidence and part of it can be accepted by the Court, if the Court is satisfied with its truthfulness;87 otherwise as a matter of prudence the evidence of such a

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witness should be discarded in toto.88 The evidence of a witness cannot be rejected in toto merely because prosecution chose to treat him as hostile and cross-examine him. It can be accepted to the extent his version is found to be dependable on a careful scrutiny thereof. 89 When a witness is cross-examined and contradicted with the leave of the Court by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the judge finds that in the process the credit of the witness has not been completely shaken, he may after reading and considering the evidence of the said witness, accept it in the light of the other evidence on record that part of his testimony which he found to be creditworthy and act upon it. In the instant case, the witness did not totally resile from his earlier statement. His not sticking to his statement made during investigation did not totally obliterate his evidence. 90 If some portion of the statement of the hostile witness inspires confidence, it can be relied upon. He can not be termed as wholly unreliable.91 Where a witness supported the prosecution case against his nephew in the Committal Court, but was declared later as hostile, his statement cannot be disbelieved. 92 Hostile witness is not necessarily a false witness.93 Granting of a permission by the court to cross-examine his own witness does not amount to an adjudication by the court as to the veracity of a witness. It only means a declaration that the witness is adverse or unfriendly to the party calling him, and not that the witness is untruthful.94 Cross-examination of a witness by the party calling him, does not make him unreliable witness so as to exclude his evidence from consideration altogether. 95 Merely because a witness becomes hostile it would not result in throwing out the prosecution case, but the Court must see the relative effect of his testimony.96 Merely because the prosecution obtains permission to crossexamine the witness by treating him as a hostile it would not efface the value of the evidence of the hostile witness. If such evidence is corroborated by other evidence, there is no legal bar to convict the accused on the basis of that evidence of the hostile witness. 97 Testimony of a hostile witness is acceptable to the extent it is corroborated by that of a reliable witness. 98 The evidence of a hostile witness is not necessarily to be rejected either in whole or in part. It is also not to be rejected so far as it is in favour of the party who called the witness, nor is it to be rejected so far as it is in favour of the opposite party. The whole of the evidence so far as it affects both parties favourably and unfavourably must be considered for whatever it is worth.99 Where the witness reiterated the prosecution version on material points and in the absence of cross-examination on those material points, he could be believed especially when the accused and the complainant were close relatives and there was no chance or reason to replace them by leaving the real culprits. Similarly, the testimony of the witness who had admitted the accused as assailants, during the cross-examination and admittedly having made statement relating to the prosecution version before the police also cannot be thrown away, particularly when there was sufficient evidence on the record to corroborate the injured eye-witness account.100 Lapse of time may however be considered in examining the discrepancies. 1 Where a party is allowed to cross-examine his own witness, the effect of that cross-examination must be to discredit that witness altogether and not merely to get rid of part of his testimony, and hence that witness's evidence must be excluded altogether. In the case of a witness for the prosecution, this means so far as it supports the case for the prosecution, for obviously the defence is entitled to rely on so much of his evidence as supports their case; otherwise a party who found that his witness had given evidence which supported his adversary's case could get rid of the evidence by declaring him hostile.2 The defence is entitled to rely on so much of the evidence of the hostile witness as is depended upon by the prosecution.3 Where the prosecution witness did not support the genesis of the prosecution, the accused can rely on his evidence.4 Thus, the testimony of a hostile witness cannot be rejected in straightway and any portion which stands in favour of the prosecution or the accused may be accepted.5 If a witness, on the ground that he is suspected to have turned hostile, is permitted by the Court to be cross-examined by the party who called him, the whole of the evidence of that witness does not become worthless. It is open to the Court to consider the evidence, and there is no objection to a part of that evidence being made use of in support of the prosecution or in support of the accused. 6Where

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a number of witnesses who had induced belief in the prosecution by their statements in the course of investigation that they could be used as eye-witnesses staged a complete volte-face in examinationin-chief or cross-examination and act ed as an echo of the defence lawyer., it was quite permissible for the trial Court to find out what portion of evidence was true and believable. 7 In a rape case when some witnesses turned hostile it would not be sufficient to discard evidence of other witnesses and the evidence of hostile witness has to be considered independently on its own merit and if any of their statements were corroborated by the evidence of other witnesses. 8 Where, a hostile witness was contradicted with reference to his earlier statement before the committing magistrate, the Supreme Court held the court was right in using the earlier statement of the hostile witness as substantive evidence.9 The Court must carefully analyse the evidence of a hostile witness and see whether that part of the evidence which is consistent with the prosecution case is acceptable or not. His evidence cannot be rejected entirely merely because he has turned hostile. 10 Where the Court gives permission to the prosecution to cross-examine its own witness declaring him as a hostile witness, it does not completely wash out his evidence. His evidence has to be read as a whole and it remains admissible in the trial as there is no legal bar to base a conviction upon the testimony of a hostile witness if it is found corroborated by other reliable evidence.11 It is not right to proceed on the basis that whatever is stated by a hostile witness which is not in favour of the party calling him should necessarily be believed as if it were an admission made and binding upon the party calling him.12 Where the witness completely turned hostile his evidence cannot at all be relied upon for any purpose.13 Where the hostile witness did not speak anything about the occurrence and there was no other direct evidence, the evidence of the hostile witness was of no use. 14 Merely because the witnesses have turned hostile, it does not demolish the prosecution case on a particular point, if there are other surrounding circumstances to support it.15 It would be wrong to rely on the evidence of a hostile witness as corroborative piece of the plea of defence of the accused16 but the evidence of a hostile witness cannot be rejected only on that count and can be used for the purpose of corroboration to the extent it corroborates the prosecution version17 or if same is corroborated by other reliable evidence.18 In case of gang rape where the husband, father and mother had turned hostile but they corroborated the testimony of the prosecutrix on point of disclosure of incident of gang rape committed on her by five persons in her own house, the conviction of the accused on the basis of sole testimony of the prosecutrix and corroboration of such evidence of hostile witnesses was held to be proper. 19 Where a witness produced by a party turned hostile to him but he admitted in his deposition that he had scribed the will and he identified the testator before the Sub-Registrar at the time of its registration and his signature were on the will and that he did not deny that he wrote the certificate of attestation at the end of the will, it was held that his such testimony was creditworthy and the Will was held to be duly attested and scribed by him, in accordance with law. 20 In a case of murder where the dead body of the deceased was discovered from the premises of the accused at the instance of the witness, the real sister of the accused, the evidence of the said witness though hostile was held to be acceptable to the extent of the recovery of the dead body by the police on her information. 21 Where the witness had given each and every detail of occurrence of the murder in his examination-in-chief as well as in the cross-examination on the first day of his examination but on the next day in his cross-examination he stated that he did not recognise the assailants due to darkness and he was got declared hostile as the next day he was made to say something in favour of the accused as he appeared to be won over, it was held that the evidence of such witness could not be discarded in toto simply because he was declared hostile as it was moonlit night on the night of the occurrence and not a pitch dark night and he had also sustained injuries and his presence at spot could not be doubted and the assailants were well known persons to him and his subsequent statement was due to influence of the accused. 22 Even if the panch witnesses were declared hostile the evidence relating to seizure of investigating officer who conducted the seizure of the stolen articles cannot be disbelieved. 23 The witnesses called by the Deptt. deposed against the Deptt. and it was alleged that they deposed falsely. The Apex Court held that, if they had deposed falsely, they should have been cross-examined. Only because their evidence was totally against the Deptt., the same per se would not mean that they

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had deposed falsely.24 Where a witness was neither declared hostile nor cross-examined, it was held that his testimony without corroboration was not sufficient to prove the prosecution case beyond reasonable doubt.25 81 Mohinder Singh v. State of Punjab, 2007 CrLJ 2478, 2485 (para 40) (P&H). 82 Alok Deb Roy v. State of Assam, 2004 CrLJ 3048, 3067, para 45 (Gau). The Court relied on State of U.P. v. Ramesh, AIR 1996 SC 2766 and Balu Sonbe Shinde v. State of Maharashtra, 2002 CrLJ 4650 : AIR 2002 SC 3137. 83 Karuppana Thevar v. State of T.N., AIR 1976 SC 980. See also State of Rajasthan v. Bhawani, AIR 2003 SC 4230 (para 9) : AIR 2003 SC 4230 : (2003) 7 SCC 291; Lella Srinivasa Rao v. State of A.P., AIR 2004 SC 1720 (para 14) : (2004) 9 SCC 713 : 2004 SCC 1479(Cri) . 84 Sheikh Zakir v. State of Bihar, AIR 1983 SC 911. See also State of Gujarat v. Balubhai Madhabhai Zala, 1995 Cr LJ 2588 (para 6.1) (Guj). 85 Syed Akbar v. State of Karnataka, AIR 1979 SC 1848 reversing the judgement of the Karn H.C.; Khujji v. State of M.P., AIR 1991 SC 1853; Dulal Chandra Ghosh v. State, 1988 Cr LJ 1835(Cal) ; Subhas Debnath v. State, 1985 Cr LJ 1373(Cal) ; Asokan v. State of Kerala, 1982 Cr LJ 173(Ker) ; Shankarlal v. State of M.P., 1982 Cr LJ 254(DB) ; Arogyanadham v. State A.P., (1985) 1 Andhra WR 124; Gurbax Singh v. State of H.P., 1977 Cr LJ 1676; Harpal Singh v. State of H.P., 1976 Cr LJ 162(HP) ; (though his earlier statement was under Section 164Cr. P.C.);Shyama v. State of Rajasthan, 1977 Raj LW 146 : 1978 Cr LJ 79(NOC) ; In re Saibana Thipanna,AIR 1966 Mys 248; Santlal v. State of Rajasthan, 1975 Raj LW 350; Zamir Ali v. State, 1982 All LJ 66(DB) ; Bir Singh v. State, ILR 1974 HP 948; relied on Rema Naik v. State, AIR 1965 Ori 31; Deodhari Koeri v. Emperor, AIR 1937 Pat 34; Chandrawati v. State, 1996 Cr LJ 975 (para 19) (Del); Zamir Ahmad v. State, 1996 Cr LJ 2354 (para 12) (Del); Raj Bahadur v. State, 1996 Cr LJ 2364 (paras 27 and 28) (Del); Premachand S. Bansode v. State of Maharashtra, 2007 CrLJ 142, 147 (para 22) (Bom). 86 Gulshan Kumar v. State, 1993 Cr LJ 1525 (paras 19 and 20) (Del); Kunwar v. State of U.P., 1993 Cr LJ 3421 (Paras 77,78). Also see Haneefa v. State, 1993 Cr LJ 2125 (para 10) (Ker); Radha Mohan Singh v. State of U.P., AIR 2006 SC 951, 954 (para 7); Jodhraj Singh v. State of Rajasthan, 2007 CrLJ 2942, 2944 (para 15) (SC). 87 Ramchandaran v. State of Kerala, 2005 CrLJ 1843, 1848 (para 9) (Ker). 88 Shiv Kumar v. State, 2004 CrLJ 3805, 3809 (para 20) (Mad) : 2004 Mad LJ 813(Cri) . 89 Radha Mohan Singh v. State of U.P., 2006 CrLJ 1121, 1124 (para 7) : AIR 2006 SC 951. 90 T. Shankar Prasad v. State of A.P., (2004) 3 SCC 753, 765 (para 24) : AIR 2004 SC 1242 : 2004 SCC 870(Cri) . See also The State v. Sejappa, 2008 CrLJ 3312, 3319 (para 29) (Kant). 91 Ashokkumar Uttamchand Shah v. P.M.A. Chanchad, AIR 1999 Guj 108 (para 17). See also Madhukar Damu Patil v. State of Maharashtra, 1996 Cr LJ 1062 (para 11) (Bom), relying on State of U.P. v. Chetram, AIR 1989 SC 1543 : 1989 Cr LJ 1785; Ratan Manoranjan Bose v. State of Maharashtra, 2007 CrLJ 415(NOC) (Bom) : 2007 (3) AIR Bom R 337. 92 Ananta Mohanto v. State of Orissa, AIR 1979 SC 1433; See also (1971) 2 Cut WR 121; Lutai v. State, 1976 Cr LT 869(All) . 93 Shatrughan v. State of M.P., 1993 Cr LJ 120. 94 Sat Paul v. Delhi Administration, AIR 1976 SC 294; Sarjug Prasad v. State, AIR 1959 Pat 66; Emperor v. Haradhan, AIR 1933 Pat 517; Sahdeo Tanti v. Gipti Pasan, AIR 1969 Pat 415; Syed Akbar v. State of Karnataka, AIR 1979 SC 1848; State of U.P. v. Girija Shanker Misra, 1985 Cr LJ 79(NOC) (Delhi) ; Azhar v. State, 1985 All LJ 384; Madho Ram Shakya v. State, 1984 All LJ 275; Rajaram v. State, 1978 Cr LJ 196(All) ; Shankarlal v. State of M.P., 1982 Cr LJ 254(MP) ; Badrinath v. State, AIR 1953 J&K 41; Jay Prakash v. State of Sikkim, 1982 Cr LJ 196(NOC) (Cal) ; Kalimuddin v. State, 1977 Cr LJ 261(NOC) (Cal) ; Babulal v. State of Rajasthan, 1977 Cr LJ 59; Agasti Mahananda v. Ramaprasad Padhi, (1969) 35 Cut LT 794; Ashique Khan v. State, 1974 Cr LJ 724(Pat) ; Bholanath v. State, 1976 Cr LJ 1409(Del) ; Ashok Kumar v. State, (1976) 1 Delhi 359; Bir Singh Majhi v. State of Assam, 1977 Cr LJ 1349; Mazahar Ali v. State, 1976 Cr LJ 1629; Bhagatram v. State of M.P., 1990 Cr LJ 2407; Laxman Sahu v. State of Orissa, 1990 Cr LJ 821; Bhagaban Barik v. State of Orissa, (1978) 1 Cut 202; Shyama v. State of Rajasthan, 1978 Cr LJ 79(NOC) : 1977 Raj LW 146; Bholanath v. State, 1976 Cr LJ 1409(Del) . 95 Dhanu v. State of Tripura, 1999 Cr LJ 1231, at p. 1239 (Gau). 96 Suresh Chand v. State of Haryana, 1976 Cr LJ 452. 97 Bhagwan Singh v. State of Haryana, AIR 1976 SC 202; See also Rabindra Kumar Day v. State of Orissa, AIR 1977 SC 170; Parimal Gowala v. State of Tripura, 2007 CrLJ 2394, 2400 (para 28) (Gau).

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98 State of Maharashtra v. Harishchandra Tukaram Awatade, 1997 Cr LJ 612(Bom) . Evidence of hostile witness not to be totally rejected, trustworthy and corroborated part can be relied upon, Pandappa Hanumappa Hanamar v. State of Karnataka, 1997 Cr LJ 2493(SC) . Also see Rajendra Singh v. State, 1997 Cr LJ 2668(All) ; Meena Gopalkrishna Mudiliyar v. State of Maharashtra, 1993 Cr LJ 3634 (para 6) (Bom); Om Prakash v. State of Haryana, 1994 Cr LJ 3351 (para 16) (P&H); conviction can be based on his corroborated testimony, Anil Rai v. State of Bihar, 2001 Cr LJ 3969 (para 37) (SC). 99 Rema Naik v. State, AIR 1965 Ori 31; relying on Sohrai Sao v. Emperor, AIR 1930 Pat 247; Profulla Kumar Sarkar v. Emperor, AIR 1931 Cal 401(FB) ; State v. Sashi Bhusan Hari Chandan, (1963) 1 Cr LJ 550(Ori) ; Nebti Mandal v. Emperor, AIR 1940 Pat 289; Purusotam Naik v. Chakradhar Das, AIR 1959 Ori 19; Emperor v. Haradhan, AIR 1933 Pat 517; Sarjug Prasad v. State, AIR 1959 Pat 66; State v. Naginder Singh, AIR 1953 Pepsu 97; Shridhar Mahadeo v. Emperor, AIR 1935 Bom 36; Gangadharam Pillai v. State, ILR 1951 Tra/Co 447; Emperor v. Jehangir, AIR 1927 Bom 501; Ammathayammal v. Official Assignee, AIR 1933 Mad 137; Upendar Mahakud v. State, 1985 Cr LJ 1767(Ori) ; Debi Prasad Padhi v. State, 1982 Cr LJ 2214(Ori) (DB); Gobinda Chandra v. Haru Chandra, 1968 Cr LJ 1352(Cal) ; Chakradhar Mohanty v. Nityananda Patra, ILR 1976 Cut 540; Chamara Pradhani v. State of Orissa, 1983 Cr LJ 1706(Ori) (DB). See also Balu Sonba Shinde v. State of Maharashtra, AIR 2002 SC 3137 (para 15) : 2004 CrLJ 4650 : (2002) 7 SCC 543, relied on in Nandeshwar Das v. State of Assam, 2004 CrLJ 4723, 4725 (para 10) : 2004 (24) All Ind Cas 105 : 2004 (3) Gau LT 117 : 2004 (3) Gauhati LR 482. 100 Mohinder Singh v. State of Punjab, 2007 CrLJ 2478, 2485 (paras 41 and 42) (P&H). 1 Gurbax Singh v. State of H.P., 1977 Cr LJ 1676; State of Orissa v. Dileshwar Bhai, ILR 1977 Cut 160; Golak Baliarsingh v. Purna Chandra Baliarsingh, ILR 1976 Cut 823. 2 Emperor v. Mokbul Khan, (1928) 56 Cal 145; Sohrai Sao v. King Emperor, (1929) 9 Pat 474, Jagir Singh v. State, AIR 1975 SC 1400. Prosecution case cannot be judged on the basis of testimony of hostile witnesses; Keshoram Bora v. State of Assam, AIR 1978 SC 1096 : (1978) 2 SCR 788; Khijiruddin v. Emperor, AIR 1926 Cal 136; Babu Nath Gond v. State, 1975 Mah LJ 779; Chandrika Prasad v. State, 1975 Rajadhani LR 551; State v. Ramesh Chandra, (1974) 1 Del 129; Bal Kari v. State of Rajasthan, 1976 Crl LJ 828 : 1975 Raj LW 435; Dharan v. State, 1975 WLN 371(Raj) . 3 In re Madhukar Dasarath Mendekar,1972 Cr LJ 978(Mys) ; relied on In re Saibanna Tipanna,AIR 1966 Mys 248; Profulla Kumar Sarkar v. Emperor, AIR 1931 Cal 401; Purustam Naik v. Chakradhar Das, AIR 1959 Ori 19; State of Mysore v. Ramaji Ramappa Malagi, (1972) 2 Mys. LJ 6. 4 Mukhtiar Ahmad Ausan v. State (NCT of Delhi), AIR 2005 SC 2804 (para 36) : (2005) 5 SCC 258 : 2005 CrLJ 2569. 5 Y. Subramaniam v. State , 2006 CrLJ (NOC) (Mad). See also Sarvesh Narain Shukla v. Daroga Singh, AIR 2008 SC 320, 325 (para 11) : (2007) 13 SCC 360. 6 Gangadharan Pillai v. State, ILR (1951) TC 447. 7 Balshiram Rambhau awate v. State of Maharashtra, 1978 Cr LJ 821. 8 State of Karnataka v. Mehaboob, 1987 Cr LJ 940(Kant) (DB). 9 Periyasami v. State of Madras, AIR 1967 SC 1027. 10 State of Gujarat v. Anirudhsing, AIR 1997 SC 2780 : 1997 Cr LJ 3397, following Khujji v. State of M.P., (1991) 3 SCC 627 : 1991 SCC 916(Cri) ; State of U.P. v. Ramesh Prasad Misra, (1996) 10 SCC 360 : 1996 SCC 1278(Cri) . Evidence of hostile witness is to be scrutinised carefully; relied on in Gurpreet Singh v. State of Haryana, AIR 2002 SC 3217, para 20 : (2002) 8 SCC 18 : 2002 CrLJ 4688; State of Rajasthan v. Bhera, 1997 Cr LJ 1237(Raj) ; Mohomed Bachhu Miah v. State of Tripura, 1994 Cr LJ NOC 197(Gau) ; not to be excluded entirely or rendered unworthy of consideration, Gura Singh v. State of Rajasthan, 2001 Cr LJ 487 (para 11) : AIR 2001 SC 330. 11 Pawan Kumar Rai v. State of Sikkim, 2005 CrLJ 289, 291, para 8 (Sikk). The Court relied on Karuppana Thever v. State of Tamil Nadu, AIR 1976 SC 980 : 1976 CrLJ 708. 12 State of Mysore v. Raju Shetty, AIR 1961 Mys 74; Nand Kishore v. Brij Bihari, AIR 1955 Raj 65; Promode Das v. State of Tripura, 2009 CrLJ 1, 15 (para 57). 13 Sait v. State, 1989 Cr LJ 2050(Mad) . 14 Kathi Odhabhai Bhimabhai v. State of Gujarat, 1993 Cr LJ 187 (para 5) (SC) : AIR 1993 SC 1193. 15 State of Bihar v. Lalu Prasad, 2008 CrLJ 2433, 2452 (para 79) (Pat). 16 Administrator Municipal Board, Gangapur v. Omprakash, 1982 Cr LJ 1398(Raj) .

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17 Chhotu Ram v. State of Rajasthan, 1995 Cr LJ 819 (para 7) (Raj), followed in Jugroo v. State of M.P., 2002 CrLJ 1050, 1054 (para 11) (AP) : 2002 (2) MPLJ 267 : 2002 (1) MPHT 458 : 2002 CrLR (SC&MP) 143. See also Yogendra Kumar v. State of U.P., 1999 Cr LJ 4685 (paras 9 and 10) (All); Koli Lakhmanbhai Chanabhai v. State of Gujarat, 2000 Cr LJ 408 (para 5) (SC) : AIR 2000 SC 210; Krishan v. State of Haryana, 2005 CrLJ 1909, 1911, para 9 (P&H). The Court relied on Bhagwan Singh v. State of Haryana, AIR 1976 SC 202 : 1976 CrLJ 203, 204; Shivkumar v. State, 2004 CrLJ 3805, 3809, paras 21 & 22 (Mad) : 2004 Mad LJ 813(Cri) ; Dharyashil v. State of Maharashtra, 2003 CrLJ 317, 321, para 7 (Bom) : 2002 All MR 2436(Cri) . 18 Jugroo v. State of M.P., 2002 CrLJ 1050, 1054, para 11 : 2002 CrLR (SC&MP) MPJ 143 : 2002 (1) MPHT 458 : 2002 MPLJ 267. 19 Sitaram Chaudhary v. State of Jharkhand, 2004 CrLJ NOC 288(Jhar) : 2004 AIR Jhar HCR 2029 : 2003 (4) JCR Jha 487. 20 Madhab Bohora v. Braja Kishore Nanda, AIR 2003 Ori 107, 113 (para 9). 21 Boby Mathew v. State of Karnataka, 2004 CrLJ 3003, 3013 (para 36) (Kant) : 2004 AIR Kant HCR 1980 : 2004 (5) Kant LJ 415. 22 Radha Mohan Singh v. State, 2005 CrLJ 167, 178 (para 64) (All). 23 Toorpati Majsaiah v. State of A.P., 2005 CrLJ 568, 572 (para 16) (AP). 24 M.Y. Bijlani v. U.O.I., (2006) 5 SCC 88, 94 (para 21) : AIR 2008 SC 3475. 25 Abhilakh Singh v. State of M.P., 2008 CrLJ 498(NOC) (MP) .

8. TURNING OF WITNESSES AS HOSTILE Time has become ripe to act on account of numerous experiences faced by the Courts on account of frequent turning of witnesses as hostile, either due to threats, coercion, lures and monetary considerations at the instance of those in power, their henchmen and hirelings, political clouts and patronage and innumerable other corrupt practices ingeniously adopted to smother and stifle truth and realities coming out to surface rendering truth and justice to become ultimate casualties. The time has come when serious and undiluted thoughts are to be bestowed for protecting witnesses so that ultimate truth is presented before the Court and justice triumphs and that the trial is not reduced to mockery. As a protector of its citizens, the State has to ensure that during a trial in Court the witnesses could safely depose without any fear of being haunted by those against whom he had deposed. Legislative measures to emphasise prohibition against tampering with witness, victim or informant have become the imminent and inevitable need of the day. 26 26 Zahira Habibullah Sheikh (5) v. State of Gujarat, AIR 2006 SC 1367, 1381-82 (paras 38, 39 and 40) : (2006) 3 SCC 374.

9. STATEMENTS UNDER SECTIONS 162 AND 164, Cr.P.C. Under the Amended Section 162Cr. P.C. (same under new code), proviso which came into effect on 11-1956, when the witness resiled from the statement made during investigation under Section 162 CrPC , with the permission of the court it can be used for cross-examining the witness. 27 Where the witnesses resiled from their earlier statements to police as to the motive for commission of murder of the wife by the husband, they were treated as hostile wholesale and their testimony was of no use. 28 The court would not give leave until it is satisfied that there is hostility or adverseness displayed by the witness to the very party on whose behalf he has come to give evidence. The witness cannot be cross-examined with the help of the statements made by him to the police unless he is declared hostile.29 The Public Prosecutor while cross-examining the hostile witness should not ask as to whether he had stated before the police as per the whole of the statement, as marking of the whole statement as an exhibit is not contemplated under Section 145. He should point out such statements which are

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contradictory to the present statements in the witness-box. 30Though an investigation by the Dy. S.P. under the prevention of corruption Act is illegal the statement recorded are not illegal and can be regarded as statement under Section 161, 162,Cr.P.C. In a subsequent legal investigation by the Superintendent of Police, it was held that the previous statements can be used for cross-examination, if the witness resiled from the statements.31 Statements recorded under Section 164Cr. P.C., though not substantive piece of evidence, can be used to corroborate or contradict its maker.32 27 State v. Balchand, AIR 1960 Raj 101; State v. Mohan Hira, AIR 1960 Guj 9; (witness need not declared hostile). 28 Subbiramani v. State, 1995 Cr LJ 3382 (paras 11 and 12) (Mad). 29 In re Kalu Singh Moti Singh,AIR 1964 MP 30; Babulal v. State, 1977 Cr LJ 2008(All) . 30 Annasab Melappa v. State, 1982 Cr LJ 1553(Kant) . 31 Bhanu Prasad v. State of Gujarat, AIR 1968 SC 1323. 32 Harbans Lal v. State, AIR 1967 HP 10.

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Ratanlal & Dhirajlal: Law of Evidence, Updated 23rd Edition/THE INDIAN EVIDENCE ACT (ACT 1 OF 1872)/PART III PRODUCTION AND EFFECT OF EVIDENCE/CHAPTER X OF THE EXAMINATION OF WITNESSES/S. 155.

CHAPTER X OF THE EXAMINATION OF WITNESSES S. 155. Impeaching credit of witness. The credit of a witness may be impeached in the following ways by the adverse party, or, with the consent of the Court, by the party who calls him:-10)  by the evidence of persons who testify that they, from their knowledge of the witness, believe him to be unworthy of credit; 8)  by proof that the witness has been bribed, or has accepted the offer of a bribe, or has received any other corrupt inducement to give his evidence; 5)  by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted; 33 3)  [* * *] Explanation.--A witness declaring another witness to be unworthy of credit may not, upon his examination-in-chief, give reasons for his belief, but he may be asked his reasons in crossexamination, and the answers which he gives cannot be contradicted, though, if they are false, he may afterwards be charged with giving false evidence. ILLUSTRATIONS 5a) 

A sues B for the price of goods sold and delivered to B.

C says that A delivered the goods to B. Evidence is offered to show that, on a previous occasion, he said that he had not delivered the goods to B. The evidence is admissible. 6b)  A is indicted for the murder of B. C says that B, when dying, declared that A had given B the wound of which he died. Evidence is offered to show that, on a previous occasion, C said that the wound was not given by A or in his presence. The evidence is admissible. 1. PRINCIPLE AND SCOPE

This section enables the parties to give independent testimony as to the character of a witness in order to indicate that he is unworthy of belief by the Court. Its provisions apply to both criminal and civil cases. The section indicates four ways in which the credit of a witness may be impeached (a) by the adverse party, or (b) with the consent of the Court by the party who calls him. They are:--

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11)  evidence of persons that the witness is unworthy of credit; 9)  proof that the witness (i) has been bribed; (ii) has accepted the offer of a bribe; or (iii) has received any other corrupt inducement. 6)  former statements inconsistent with the present evidence; and 4)  general immoral character of the prosecutrix in cases of rape or attempt to ravish. The Sub-clause (1) has an explanation, which is a re-echo of S. 153. Witnesses deposing to character can be asked in cross-examination to give reasons for their opinion. They are not liable to be contradicted in those reasons; but, if they are false, they can be charged with giving false evidence. The first three grounds are general. They indicate that the credit of a witness may be impeached, first of all, by the best of evidence, that is, his own former statements to the contrary; secondly, he can be shown to be unworthy of credit by the oral testimony of other persons; and, lastly, his credit can be completely overthrown by proving that he had accepted (a) a bribe, or (b) an offer of a bribe, or (c) any other corrupt inducement. The fourth ground is a special one. If the woman complaining of rape or attempt to ravish is proved to be a woman generally of immoral character, her story in the complaint will necessitate strong proof. This section should be strictly construed and narrowly interpreted, otherwise Courts would have to investigate, on most imperfect materials, questions which have no bearing upon the matter really in contest.34 The provisions of Section 155 have to be strictly construed. 35 This section is in addition to other provisions contained in Sections 138, 140, 145, 148 & 154 for impeaching the credit of a witness by cross-examination. Section 52 of the Act deals with relevancy of character evidence whereas this section prescribes the manner of impeaching the credit of a witness. Therefore, Section 155 cannot be construed as an exception to Section 52. Further Sections 155 and 146 are not in conflict with each other, as Section 146 deals with methods of impeaching the credit of a witness in a different way. Sections 138, 140, 145, 148 and 154 provide for impeaching a credit of a witness by cross-examination. 36 This section mainly deals with the modes of evidence for impeaching the credit of a witness other than by cross-examination in the witness-box and must be exercised immediately after examination-inchief.37When a statement was recorded by the order of a court having no jurisdiction, still such a statement can be made use of for purposes of Sections 145, 155 & 157 of the Evidence Act, as it was recorded by an official under the orders of the Court. The statement of a person does not cease to be his statement merely because it was written in the afore-mentioned circumstances. Even if the court has not passed an order for recording the statement, and the statement has been recorded such a statement would be made use of for purposes of Sections 145, 155 and 157. 38 An inquest report is not a substantive piece of evidence; it could only be considered as a previous statement of the investigating officer and his credit could be impeached with respect to that statement.39 33 Clause (4) has been omitted by the Indian Evidence (Amendment Act, 2002 (4 of 2003), S. 3 (w.e.f. 1.1.2003). Prior to its omission, clause (4) read as : "(4) when a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix was of generally immoral character." 34 Bhogilal v. Royal Insurance Co. Ltd., (1927) 30 Bom LR 818 : ILR 6 Ran 142 PC : AIR 1928 PC 54. 35 Rama Reddy v. V.V. Giri, AIR 1971 SC 1162. 36 G. Hussenaiah v. B. Yerraiah, AIR 1954 Andhra 39. 37 Kiranchandra Pal v. Bhondu, 1970 MPLJ 263. 38 State of Punjab v. Vishwajit Singh, AIR 1987 P&H 126. 39 Ramanand v. State, ILR 1974 HP 509.

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2. WITNESS BELIEVED TO BE UNWORTHY OF CREDIT [CLAUSE (1)] Clause (1) says that the credit of a witness may be impeached by the evidence of persons who from their knowledge of the witness believe the witness to be untrustworthy of credit. Sections 146 to 153 deal with how a witness's veracity can be tested by cross-examination. Section 155 does not allow evidence of bad character of a witness to be spoken to. 40 In order to impeach the character of a witness for veracity, witnesses may be called to prove that his general reputation is such that they would not believe him upon his oath. Such evidence can be given, and the practice is ancient and undoubted.41 Where the general reputation of a witness has been thus impeached, the party calling him may reestablish his credit by cross-examining the witnesses who have spoken against him as to their means of knowledge and the grounds of their opinion, or as to their hostile feelings towards the person whose testimony they have discredited, or as to their own character and conduct, or by calling other witnesses, either to support the character of the first witness or to attack in their turn the general reputation of the impeaching witnesses. How far this plan of recrimination may be carried is not yet formally determined, though the practice is said by some lawyers to be in conformity with the general rule of the civil law, in testem tets, et in hos, sed non datur ultra, that is, a discrediting witness may himself be discredited by other witnesses, but no further witnesses can be called to attack the characters of these last.42 The evidence that is to be adduced to discredit the witness should be confined to general reputation for truthfulness or general moral character and should not be given of particular acts of falsehood or immorality or any wrong doing. Explanation under Section 55 of this Act states that in Sections 52, 53, 54 & 55, the word 'character' includes both reputation and disposition; but except as provided in Section 54 evidence may be given only of general reputation and general disposition and not of particular acts by which reputation or disposition were shown. 43 "The impeaching witness cannot in direct examination give particular instances of other falsehood or dishonesty, since no man is supposed to come prepared to defend all the act s of his wife. But, in cross-examination he may be asked as to his means of knowledge of the other witness, his feelings of hostility towards him, or whether inspite of bad character in other respects, the impeached witness has not preserved his reputation for truth; and the answers to these questions cannot be contradicted. It has been said that the impeaching witness should come from the locality of the other, and not be a stranger sent expressly to learn the latter's reputation. The impeaching witness cannot, of course, be asked his opinion whether the witness is in fact speaking the truth about the issue before the Court." 44 Opinion evidence is, as a general rule not admissible, and Section 155(1) is an exception to that rule. To draw an inference against the credibility of a witness without anybody going into the witness-box in the manner contemplated by Section 155(1) would not be legitimate. 45 The testimony of a trap-witness and persons of shady character should not be rejected as tainted evidence without scrutiny. A conviction can be based on such testimony. 46 40 Maung San Myin v. Emperor, AIR 1930 Rang 49. 41 R v. Brown and Hedley, (1867) LR 1 CC 70. 42 TAYLOR, 12th Edn., S. 1473, p. 939; ADRIAN KEANE IN MODERN LAW OF EVIDENCE (2nd Edn.) Considers this an anomalous albict long established rule and opines that it is difficult to find a convincing justification for this rule. 43 See R v. Gunewardene, (1951) 2 KB 600 : (1951) 2 All ER 290. 44 PHIPSON ON EVIDENCE, 15th Edn. (2000), P. 265 (para 11-41).

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45 Dinkar Bandhu Deshmukh v. State, AIR 1970 Bom 438. 46 Ramsarup v. State, AIR 1967 Del 26.

3. WITNESS ACCEPTED BRIBE ETC. [CLAUSE (2)] It says that the credit of a witness may be impeached by proof that the witness has been bribed or has accepted the offer of a bribe, or has received any other corrupt inducement to give his evidence. The credit of a witness may be impeached on the ground that his evidence was obtained by corrupt inducement, and it was open to the defendant to contend that the application of a third degree method by the persistent questioning in the investigation constituted a form of unfair evil, the avoidance of which was a corrupt inducement to witness to say what was required of him. It would be open to the defendant also to attempt to establish this by evidence, and it was clear that an important witness for this purpose would be the counsel. There was also the possibility of certain contingencies in which the counsel's association with the enquiry may be unseemly.47 Section 153 exception (2) says that if a witness is asked any question tending to impeach impartiality and answers it by denying the fact suggested, he may be contradicted. So when a witness denies a suggestion that he accepted the offer of a bribe, then such statement can be contradicted. The Privy Council held that when the offer of a bribe was not shown to have been accepted, it would be no ground for impeaching the impartiality of a witness, but the fact that the witness accepted the bribe or the promise of a bribe would be a ground to impeach the credit of that witness and the second clause embodies that view.48 Sections 146, 148 & 155 would show that the credit of the witness can be said to have shaken if it can be shown that he is not a man of veracity, and not that he is of bad moral character. A black-marketeer is not necessarily untruthful, nor a non-black-marketeer necessarily a man of veracity. 49 A witness may be discredited as pointed out in exceptions 1 & 2 of Section 153, in regard to the proof of previous conviction when denied by the witness, or by evidence when the witness denied impartiality. For impeaching the credit of a witness, indecent and scandalous questions can be allowed in crossexamination provided there is necessity and foundation for the same. 50 47 Hussain Khan of Mamdot v. Iftikhar Hussain Khan of Mamdot, (1949) 2 Lah 844. 48 Bhooilal v. Royal Insurance Co. Ltd., AIR 1928 PC 54. 49 Chari v. State, AIR 1959 All 149. 50 Prakash Raja Ram v. State of Maharashtra, 1975 Cr LJ 1297(Bom) .

4. WITNESS'S INCONSISTENT STATEMENTS [CLAUSE (3)] This clause states that the witness may be impeached by proof of former statement inconsistent with any part of his evidence which is liable to be contradicted51; but the mode of using such former statement for the purposes of contradicting the witness is prescribed in Section 145 of the Evidence Act.52 If a witness disowns having made any statement which is inconsistent with his present stand, his testimony in the Court on that score would not be vitiated until the cross-examiner calls his attention to those parts of his statement which are to be used for contradicting him. 53 A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Only such of the inconsistent statements which is liable to be "contradicted" would affect the credit of the witness. Mere variations falling in narration of the incident by the witnesses, is not sufficient to discredit their testimony.54

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TAYLOR(8th Ed., Section 1324) states: "It may be important to distinguish between contradicting a witness and impeaching the credit of a witness--expressions which are sometimes used as synonymous, but between which a distinction appears to be made by the Evidence Act . The first of the modes in which the credit of a witness may be impeached is, that witnesses may be called to disprovesuch of the facts stated by him, whether in his direct or cross-examination as are material to the issue. The omission of this mode in the above section of the Evidence Act appears to have suggested doubts as to whether Indian Legislature did or did not intend to allow the testimony of a witness to be contradicted by other evidence disproving the facts stated by him. It has been shown that where these facts are relevant the Evidence Act assumes that evidence may be given to contradict and while declaring generally that evidence may not be given to contradict the answers to questions, which are relevant to the enquiry only insofar as they tend to shake the credit of a witness by injuring his character, the Act makes two exceptions; to this rule (exceptions 1 & 2 of Section 153)."55 This clause deals with previous inconsistent statements of a witness whose evidence is sought to be discredited under this clause. The previous statements may be of several types, like, statements given to the Police Officer coming under Section 162,Cr. P.C., statements recorded underSection 164,Cr. P.C., statements made during conversation which were recorded on tape. Section 145 of this Act deals with contradicting a witness by earlier statements in writing. 51 Narayanan v. Krishnan, 1981 Crl LJ 563(Ker) . See also Binay Kumar Singh v. State of Bihar, 1997 Cr LJ 362 : AIR 1997 SC 322. 52 State of Rajasthan v. Teja Ram, 1999 Cr LJ 2588 (para 32) (SC) : AIR 1999 SC 1776. 53 Binay Kumar Singh v. State of Bihar, AIR 1997 SC 322 : 1997 Cr LJ 362, Bhagwan Singh v. State of Punjab, AIR 1952 SC 214 : (1952) 1 MLJ 816(SC) . Witness not confronted with his former statement in cross-examination, his testimony not vitiated, Majid v. State of Haryana, AIR 2002 SC 382, (paras 14, 15 and 16) : (2001) 10 SCC 6 : 2002 CrLJ 938. Witness confronted with her former statement in cross-examination, Hasan Murtza v. State of Haryana, (2002) 3 SCC 1 (para 6) : AIR 2002 SC 762 : 2002 CrLJ 1022. 54 Rammi v. State of M.P., 1999 Cr LJ 4561 (paras 23-28) (SC) : AIR 1999 SC 3544. 55 R. v. Sakaram Mukundji, (1874) 11 Bom HCR 169.

5. LIABLE TO BE CONTRADICTED The words "which is liable to be contradicted" mean "which is relevant to the issue". 56 The Supreme Court held that the above statement in ILR 17 Cal 344 was too broadly laid down and the expression "which is liable to be contradicted" does not mean merely "which is relevant to the issue."57 56 Khadijah Khanum v. Adool Kazim Shirazi, (1899) 17 Cal 344 @ p. 347. 57 N. Sri Ramreddy v. Y.Y. Giri, AIR 1971 SC 1162.

6. SECTIONS 155 AND 145 The Supreme Court held that a perusal of Sections 145, 155 and 157 clearly indicates that there are two purposes for which a previous statement can be used (1) for cross-examination and contradiction and (2) for corroboration. When the defence wants to use the previous statement of a witness it could be only to contradict a witness and not to corroborate. 58 A statement made by a witness before a commission appointed under the Commission of Enquiry Act of 1952 cannot be permitted to be used to contradict the maker or impeach his credit. 59

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Section 155 does not lay down the mode of proof of a former statement, that is provided in Section 145 when the prior statement is sought to be tendered in evidence for impeaching the credit of the witness.60 Under this section though it is stated that a witness can be impeached by proof of former statements inconsistent with any part of his evidence, it does not lay down how the former statement is to be proved. While Section 145 refers to former statements in writing or reduced into writing, this section would also apply to oral statements. Where a party wants to rely on a previous statement of a person who is giving evidence, in order to contradict him, it is the duty of the cross-examiner to put the document to him so as to give him an opportunity to explain it. Thus Section 155 is controlled by Section 145 and it is not independent of it. 61 However, it was held that as Section 145 makes no mention of oral statements it cannot control Section 155. When former oral statements were put to the witness showing some inconsistency, the court may refuse to place any reliance on such inconsistency, when those persons to whom such oral statements were made were not examined and such questions were not put to those witness for explanation.62 It is a legitimate right of the accused to prove that the previous statements made by the witness were different and they should be made available to him for his defence for impeaching the credit of the witness as he has to draw the attention of the witness to his previous statements. 63 If the evidence is intended to suggest that the witness was not speaking the truth upon a particular point his attention must first be directed to the fact by cross-examination so that he may have an opportunity of giving an explanation.64 In the absence of any inherent incredibility (vice) no presumption adverse to a witness should be drawn on any matter unless it is put to him and he is given an opportunity to explain it.65 The previous deposition in an earlier proceeding can be used to contradict or corroborate his present statement in the court under Section 155 and Section 157 of the Evidence Act . 66 Even a former statement made by an informant to a person not legally competent to investigate, can be used for contradiction under Section 145 and for impeaching his credit under Section 155. 67 The fact that a particular witness was not believed in another case would not impeach the credit of a witness as such earlier judgement cannot be given in evidence for the purpose of discrediting the witness in the present proceedings.68 In a de novotrial before a successor Magistrate on the request of the accused, the statements of witnesses recorded by the predecessor were brought on record. On the admission of those witnesses in cross-examination that they had made those statements, it was held that the evidence previously given by those witnesses was not brought on record in strict conformity with the provisions of the Evidence Act. The provisions of Sections 145 and 155 not having been complied with, it was not open to the Magistrate to act upon those statements and to get them on the record as evidence in a criminal case.69 It was held that a recital as to the boundary in documents between third parties is not ordinarily admissible to prove possession or title as against a person who is not a party to the document, but this rule is subject to exception which can be classified under four heads, namely, if these documents come within the relevancy and admissibility contemplated under (a) Sections 155 and 157; (b) Section 32(3); 5c)  under Section 13; and (d) under Section 11 of the Evidence Act. If the recital of the document is deposed to by the executant of the document it becomes admissible under Section 157 to corroborate the evidence of the executant or under Section 155 to contradict such evidence.70 It was held by the Privy Council that a letter written by a witness is no evidence of the facts contained therein, but it can be put to use in cross-examination for discrediting him showing that what he had written was inconsistent with his evidence.71 The handwriting of a witness cannot be used for impeaching the credit of the witness, as the handwriting is not a "former statement" of the witness. 72 The Supreme Court held that a statement said to have been made by a witness who refused to affix his thumb impression could not be used for contradicting that witness. 73

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When a witness denied having made a statement, his previous statement admitting that fact, in a previous deposition can be taken in evidence though its value is weak and it is unsafe to act upon it without corroboration.74 58 Kehar Singh v. State, AIR 1988 SC 1883. 59 See also Mohammad Sarwar v. Emperor, AIR 1942 Lah 215. 60 Dama alias Damodar Jena v. State, ILR 1969 Cut 265. 61 Bal Gangadhar Tilak v. Srinivas Pandit, AIR 1915 PC 7; Jagrani Kunwar v. Durga Prasad, ILR 36 All 93(PC) ; Rani Amrit Kunwar v. Gur Charan Singh, AIR 1934 All 226; State v. Minaketan Patnaik, AIR 1952 Ori 267; Gopichand v. Emperor, AIR 1930 Lah 491; Arnup v. Kedar, AIR 30 Cal WN 835; Dama alias Damodar Jena v. State, ILR 1969 Cut 265. 62 Muktawandas Ajab Das v. R, AIR 1939 Nag 13; Ramratan v. State, AIR 1956 Raj 196. 63 Manilal Sahu v. State, AIR 1969 Ori 176; Doman Mahton v. Suraj Deo Prasad, AIR 1970 Pat 95. 64 Chunilal v. Hart Ford Fire Insurance Co., AIR 1958 Punj 440. 65 Sachindranath Chatterjee v. Nilima, AIR 1970 Cal 38. 66 Ponnuswami v. Kalyana Sundara, AIR 1930 Mad 770. 67 State v. Pareswar Ghasi, AIR 1968 Ori 20; State of Punjab v. Vishwajit Singh, AIR 1987 P&H 126; Ramkishun Sao v. R., AIR 1946 Pat 82. 68 Chandreshwar Prasad v. Bisheshwar, AIR 1927 Pat 61; In the matter of Juggappa, 4 Cal WN 684. 69 Saligram v. State of U.P., AIR 1956 All 138. 70 Rangayyan v. Innasimuthu Mudali, AIR 1956 Mad 226. 71 Judah v. Isolyne Sarojbashini Bose, AIR 1945 PC 174. 72 Kiranchandra Pal v. Bhondu, 1970 MPLJ 263. 73 State of Haryana v. Harpal Singh, AIR 1978 SC 1530. 74 Homeshwar Singh v. Kameshwar, AIR 1935 PC 146.

7. TAPE-RECORD The Supreme Court in Pratap Singh v. State of Punjab 75 reversing the decision in Pratap Singh (Dr.) v. State of Punjab 76 held that the tape-recorded statements can be admitted to discredit the witness in the witness box with his former inconsistent statement recorded on the tape; it is to be noted that AIR 1963 Punj 298 overruled a prior decision in Rupchand v. Mahabir Prasad 77 must be held to be good law wherein it was stated following the decision Andrews v. United States 78 a case of electrotelephonic communication, that a defendant who is endeavouring to shake the credit of a witness by proof of a former inconsistent statement, can depose that while he was engaged in conversation with the witness, a tape-record was in operation or can produce the said tape-recorder in support of the assertion that a certain statement was made in his presence. The Supreme Court held that a tape-recorded statement is admissible under Section 155(3), though the weight to be given to such evidence is however distinct and separate from the question of admissibility.79 It was held by the Supreme Court, that the conversation between the accused and the complainant which was recorded even by a Police Officer without their knowledge can be relied upon as such conversation would not attract the applicability of Section 162Cr. P.C. 80 75 AIR 1962 SC 72. 76 AIR 1963 Punj 298.

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77 AIR 1956 Punj 173. 78 105 Am LR 322. 79 Rama Reddy v. V.V. Giri, AIR 1971 SC 1162. 80 Yusufalli v. State of Maharashtra, AIR 1968 SC 147.

8. F.I.R. The F.I.R. can be made use of by the defence to impeach the informant's credit who had given the information to the police for recording the F.I.R. It can be tendered under any provision of Chapter II of the Evidence Act, such as Section 32(1) or Section 8 and it can be used only for purpose of corroborating, contradicting or discrediting the maker under the provisions of Sections 145, 155 & 157 provided he is examined in court and it cannot be used for any purpose with reference to other witnesses.81 Where the first informant did not mention the name of one of the accused in the F.I.R. though the said accused was known to him, evidence of the first informant would not come in aid of prosecution to prove the complicity of such accused in crime.82 81 Shankar v. State of U.P., AIR 1975 SC 757; Azimuddy v. R., ILR 54 Cal 237; Man Mohan Ghosh v. Emperor, (1931) 58 Cal 1312; Ramnaresh v. R., AIR 1939 All 242; Nisar Ali v. State, AIR 1957 SC 366; Aghnoo v. State, AIR 1966 SC 119; Nankhu Singh v. State, AIR 1973 SC 491; Hasib v. State of Bihar, AIR 1972 SC 283; Khan v. State, AIR 1962 Cal 641; Bhagirathi v. State, AIR 1965 Ori 99; Tikaram v. State, AIR 1957 All 755; Emperor v. Aftab Mohammad, AIR 1940 All 291. 82 Raju v. State of Maharashtra, AIR 1998 SC 275 : 1998 Cr LJ 493.

9. SECTION 162, Cr. P.C. Any statement made to a police officer during investigation when it is reduced to writing cannot be used as evidence, but it may be used for the purpose of refreshing the memory under Section 159 of the Evidence Act . The person making the statement can be questioned with a view to impeach his credit, but the Police Officer who recorded it or any other person in whose hearing the statement was made has to be examined under Section 155 on that part of the statement which was used as contradiction.83 Section 162(1),Cr. P.C. permits the prosecution to impeach the credit of his own witness by proof of his former statements made to the investigating officer. The defence also can use it in view of the proviso toSection 162 (1),Cr. P.C.84 It was held by the Supreme Court that Section 162,Cr. P.C., prohibits the use of statements of witness made before the police during investigation; but for a limited purpose of contradiction of a prosecution witness it can be used; it cannot be used for corroboration of a prosecution witness or for contradiction of a defence witness.85 The statement made by an identifier before a Magistrate contained in a identification memo is a former statement of the identifier and can be used for contradicting him under Section 145 or 155 and for corroborating him under Section 157, unless it is made in the presence of the police in which case it would be hit by Section 162,Cr. P.C. and would therefore be not admissible, for contradiction. 86 Where the material statement of the eye-witness that he had seen the accused setting fire to the shed was omitted by him in the police statement, it amounted to contradiction. 87 83 R. v. Uttamchand, (1874) 11 Bom HCR 120; R v. Tajkhan, ILR 17 All 57. 84 R. v. Najibuddin, AIR 1933 Pat 589.

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85 Sat Paul v. Delhi Administration, AIR 1976 SC 294. See also Madari Sikdar v. R., ILR 54 Cal 307; In re Packiriswami,AIR 1942 Mad 288; In re Saibanna Tipanna,AIR 1966 Mys 248; R. v. Vithu, AIR 1924 Bom 510; Tahsildhar Singh v. State, AIR 1959 SC 1012; Laxman Kalu v. State, AIR 1968 SC 1390; Prakash Chand v. State, AIR 1979 SC 406; Kehar Singh v. State (Delhi Administration), AIR 1988 SC 1883. 86 Asharfi v. State, AIR 1961 All 153; In re Saibanna Tipanna,AIR 1966 Mys. 248. 87 Guz Pedro Pacheco v. State, 1998 Cr LJ 4628 (paras 12, 14 and 15) (Bom).

10. SECTION 164, Cr. P.C. A previous statement of a witness recorded u/ Section 164,Cr. P.C. can be used for impeaching the credit of a witness though it may not be used as substantive evidence. 88 Where a person made a dying declaration but later survived, it was held that the statement though not admissible as a dying declaration under Section 32 of the Evidence Act such statement can be used for contradiction under Section 145 and for impeaching the credit of the witness under Section 155. 89 88 Bishen v. R. , ILR 50 All 242; R. v. Cherath, (1902) ILR 26 Mad 191; Niamat Khar v. R., AIR 1930 Lah 409; Bishen v. R., AIR 1927 All 705 : ILR 50 All 242; R. v. Sekander Ali Shah, AIR 1941 Cal 406; Mamand v. R., AIR 1946 PC 45; Brijbushan Singh v. R., AIR 1946 PC 38; Bhuboni Sahu v. R., AIR 1949 PC 257; Bisipati Padhan v. State, AIR 1969 Ori 289; Manik Gazi v. R., AIR 1942 Cal 36; Abdul Hakim v. State, 1957 Cr LJ 117(All) . 89 Kina Behara v. State, ILR 1968 Cut 660. See also State of U.P. v. Veer Singh, AIR 2004 SC 4614 (para 5).

11. IMMORAL CHARACTER OF VICTIM OF RAPE [CLAUSE (4)] Clause (4) has been omitted by Indian Evidence (Amendment) Act, 2002 (4 of 2003), Section 3 (w.e.f. 1.1.2003). When a man is prosecuted for rape or any attempt to ravish evidence can be given to impeach the credit of the prosecutrix about her general immoral character. But is not permissible to prove specific immoral acts either with the accused person or with others and she may decline to answer such questions but if she answers them in the negative, further evidence can be adduced to contradict her.90It was held that as the expression "generally immoral character" used in Cl. (4) pre-supposes that evidence showing general reputation of the woman as that of a prostitute, or that she had general reputation of going about and committing immoral act s with a number of men is admissible. 91 In HALSBURY'S LAWS OF ENGLAND (4th Ed., Vol. 11, Para 374, page 274) it is stated: "On charges of rape, attempted rape, assault with intent to rape and indecent assault, the character of the complainant is relevant to the issue of consent, and she may therefore be cross-examined (I) to show that she is of general bad character, for example that she is a common prostitute, or is of loose morals, or is in the habit of having intercourse on first acquaintance whether for money or not, or (2) that she has had intercourse with the defendant, on previous occasions, and witness may be called to give evidence in support of such imputations92. She may also be cross-examined as to acts of intercourse with other men, but since this goes to credibility rather than to the issue, the defendant is bound by her answers, and if such act s are denied, evidence may not be called to prove them. 93 In a case of rape the general immoral character of the complainant is relevant. The non-consent of the complainant is a material element; and the character of the woman as to chastity is of considerable probative value in judging of the likelihood of that consent. 94 The clause 4 of Section 155 of the Act has been deleted by Indian Evidence (Amendment) Act 2002 (4 of 2003). The object of the aforesaid amendment is not to allow the defence counsel to ask the question to the prosecutrix in a rape case about her character and to impeach her credibility. The granting of permission to show the blue video recording in Court room, in which the prosecutrix of a rape case was shown in indulging in undesirable sexual acts would certainly amount to impeach the general character of the prosecutrix and to embarrass her in Court which exactly was not permissible under the law.95

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90 See TAILOR ON EVIDENCE, 8th Ed., Section 363. 91 Wahid Ali v. Emperor, AIR 1932 Cal 523; Keramat v. R., AIR 1926 Cal 320. 92 R. v. Clarke, (1817) 2 Stark 241; R. v. Barker, (1829) 3 C&P 589; R. v. Martin, (1834) 6 C&P 562; R. v. Tissington, (1843) I Cox CC 48; R. v. Clay, (1851) 5 Cox CC 146; R. v. Cockcroft, (1870) 11 Cox CC 410; R. v. Holmes, (1871) LR I CCR 344; R. v. Riley, (1887) 18 QBD 481, CCR; R. v. Gretbanks, (1959) Crim LR 450; A witness for the defence is entitled to give reasons for his opinion; R. v. Bashir and Manzur, (1969) 3 All ER 692 : (1969) I WLR 1303; R. v. Krausz, (1973) 57 Cr App Rep 466, CA. See also R. v. Thompson, (1951) SASR 135 (S. Aust. FC). 93 R. v. Hodgson, (1812) Russ & Ry 211, CCR; R. v. Cockcroft, (1870) 11 Cox CC 410; R. v. Holmes, (1871); LR 1 CCR 334; R. v. Riley, (1887) 18 QBD 481, CCR; R. v. Cargill, (1913) 2 KB 271, CCA. See also R. v. Bashir and Manzur, (1969) 3 All ER 692 : (1969) I WLR 1303. As to questioning the complainant about specific acts, see R. v. Hodgson, supra; R. v. Mercer, (1842) 6 Jur 243. 94 Cunnigham, 360. 95 Dilbhajan Singh v. State of Punjab, 2004 CrLJ 3152, 3153 (para 7) (P&H) : 2004 (2) Crimes 588 : 2004 (2) Rec CrR 472.

12. REASONS FOR BELIEVING A WITNESS UNWORTHY OF CREDIT [EXPLANATION] In the examination-in-chief a witness cannot be asked the reasons for his belief that another witness is unworthy of credit. Such questions can only be asked in cross-examination. But it is very dangerous in cross-examination to ask a witness his reasons for believing a witness to be untrustworthy. He is, by such a question, enabled to state any unfavourable fact without fear of contradiction. 96 96 Cunnigham, 360.

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Ratanlal & Dhirajlal: Law of Evidence, Updated 23rd Edition/THE INDIAN EVIDENCE ACT (ACT 1 OF 1872)/PART III PRODUCTION AND EFFECT OF EVIDENCE/CHAPTER X OF THE EXAMINATION OF WITNESSES/S. 156.

CHAPTER X OF THE EXAMINATION OF WITNESSES S. 156. Questions tending to corroborate evidence of relevant fact, admissible. When a witness whom it is intended to corroborate gives evidence of any relevant fact, he may be questioned as to any other circumstances which he observed at or near to the time or place at which such relevant fact occurred, if the Court is of opinion that such circumstances, if proved, would corroborate the testimony of the witness as to the relevant fact which he testifies. ILLUSTRATION A, an accomplice, gives an account of a robbery in which he took part. He describes various incidents unconnected with the robbery which occurred on his way to and from the place where it was committed. Independent evidence of these facts may be given in order to corroborate his evidence as to the robbery itself. 1. PRINCIPLE AND SCOPE

This section states that questions tending to corroborate any relevant fact can be put in respect of circumstances which the witness observed at or near the time or place at which such relevant fact occurred. There is a condition imposed that such questions can be put only when the court is of the opinion that the circumstances, if proved would corroborate the testimony of the witness as to the relevant fact which he testifies. The illustration given explains the intendment of the section. The frame of the section indicates what questions are to be asked in examination-in-chief. In most cases, it paves the way for cross-examination, which, if successful, brings out contradiction; but which, if unsuccessful, must inevitably result in corroboration. Like contradiction, corroboration is meant to test the truthfulness of a witness. The Legislature has indicated how and when a witness may be contradicted (Ss. 145, 153 and 158). We have now to see in what circumstances a witness may be corroborated. First of all, he may be asked questions tending to corroborate evidence of a relevant fact (S. 156); secondly, former statements made by him may be proved to corroborate later testimony to the same fact (S. 157); thirdly, when any statement relevant under S. 32 or S. 33 is proved, all matters may be proved either to contradict or corroborate it. (S. 158). Under Section 11(2), of this Act facts not otherwise relevant are relevant if by themselves or in connection with other facts they make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable. This section is not intended to prove relevant facts, but to corroborate the evidence of a witness. MARKBY ON EVIDENCE (P. 109-110) observes: "This section, in effect, declares evidence of certain facts to be admissible. If this section had not been inserted, the judge would have had to determine

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the relevancy of these facts by reference to Section 7 and 11; and he might perhaps have been influenced by the practice in England, which has been against the admission of such evidence." 97 When the court is not inclined to reject the evidence of a witness to be false but has some doubts, it may find it necessary to have corroboration and in order to enable it to act on that evidence, it may seek corroboration from other independent evidence or circumstance. 98 Evidence of similar facts though not admissible to prove a main fact, may be received for purpose of corroboration. 1 Corroboration, in order to be of any value, must be on material particulars and the facts relied on for corroboration must be established by reliable and independent evidence. Those facts must be such as to lend assurance to the crucial issue which is in question. 2 In a corruption case, no conviction can be based even on the complainants' quite credible evidence, unless it is corroborated by independent material.3 97 See the commentary on Cl. (2) of Section 11. 98 Yudhishtir v. State of M.P., AIR 1971 SCC 684(Cr.) . 1 R. v. Kennaway, (1917) 1 KB 25; R. v. Chitson, (1909) 2 KB 945. 2 Sarla Devi v. Birendra Singh, AIR 1961 MP 127. 3 M.G. Thatte v. State of Maharashtra, 1993 Cr LJ 2878 (para 8) (Bom).

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Ratanlal & Dhirajlal: Law of Evidence, Updated 23rd Edition/THE INDIAN EVIDENCE ACT (ACT 1 OF 1872)/PART III PRODUCTION AND EFFECT OF EVIDENCE/CHAPTER X OF THE EXAMINATION OF WITNESSES/S. 157.

CHAPTER X OF THE EXAMINATION OF WITNESSES S. 157. Former statements of witness may be proved to corroborate later testimony as to same fact. In order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact, at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved. 1. PRINCIPLE AND SCOPE

This section states that in order to corroborate the testimony of a witness in respect of a fact his former statement which was made at or about the time when the fact took place can be given in evidence or the former statement given before any authority legally competent to investigate the fact may also be given and proved. Section 145 and 155(3) deal with the former statement of a witness which can be used for purpose of contradicting him. Normally, a witness cannot corroborate himself. 4 The expression "legally competent to investigate the fact" is used in the latter part of the section. According to this section two classes of former statement may be proved in order to corroborate the testimony of the witness. The first part relates to former statements made by such witness relating to the same fact at or about the time when the fact took place. The second class of former statements must have been made before any authority legally competent to investigate the fact. Generally, the statements made immediately on the occurrence of an event contain truth, for no time has elapsed for concoctions to creep in. Similarly, statements solemnly made in the presence of a legally competent authority bear the impress of truth. Statements like these are, therefore, a legitimate means of corroboration. They support the credibility of the person whose evidence is corroborated. Corroboration should as a general rule come from an independent source but under this section a former statement of a witness which is contemporaneous in point of time between the occurrence of a fact and the making of the statement can be given for purpose of corroboration of his testimony. In this regard illustrations (a) to Section 6 and illustrations (f) & (k) to Section 8 have to be looked into. Section 6 illustration (a) says "A is accused of the murder of B by beating him. Whatever was said or done by A or B or the bystanders at the beating shortly before or after it as to form part of the transaction is a relevant fact". Section 8 Ills. (f) says "The question is whether A robbed B. The facts that, after B was robbed, C said in A's presence--"The police are coming to look for the man who robbed B" and that immediately afterwards A ran away are relevant. Section 8 Illus. (k) says "The question is whether A was robbed. The fact that soon after the alleged robbery he made a complaint relating to the offence, the circumstances under which, and the terms in which, the complaint was made, are relevant." In all the above illustrations the former statements made by a witness at about the same point of time can be used under this section to corroborate his testimony.

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The Supreme Court observed: "There are only two things which are essential for Section 157 to apply. The first is that a witness should have given testimony with respect to some fact. The second is that he should have made a statement earlier with respect to the same fact at or about the time when the fact took place or before any authority legally competent to investigate the fact. If the witness to be corroborated also says in his testimony that he had made the former statement to some one that would add to the weight of the evidence of the person who gives evidence in corroboration, just as--if the witness to be corroborated says to any body, that makes the statements of any witness appearing as a corroborating witness as to the former statement of little value. But in order to make the former statement admissible under 157 it is not necessary that the witness to be corroborated must also, besides making the former statements at or about the time the fact took place, says in court in his testimony that he had made the former statement. 5 A previous statement of a witness is admissible in evidence in certain specified circumstances and for certain specified purposes. It may be admissible as part of res gestae under Section 6, 7, 8, 9 & 14 or under Section 33 or under Section 145 or under Section 157 or as an admission. 6 Though the narration of a complainant about the incident to some of her colleagues is not res gestae and hence not admissible under Section 6 of the Evidence Act, if the same was corroborated by her colleagues, it is admissible under Section 157.7 4 R. v. Nga Myo, AIR 1938 Rang 177(FB) ; R. v. Christie, (1914) AC 545; Lim Yam Hong & Co. v. Lam Choon & Co., AIR 1928 PC 127. 5 Ram Ratan v. State of Rajasthan, AIR 1962 SC 424, overruling Misri (Mst.) v. Emperor, AIR 1934 Sind 100; Nazar Singh v. State, AIR 1951 Pepsu 66; see also Dwaraka Nath v. Lal Chand, AIR (1965) SC 1549; Lakhoo v. State of M.P., 1985 Cr LJ 569 MP. 6 Kamaeswar Prasad Singh v. Rex, 1951 All LJ 149. 7 Chander Kala (Smt.) v. Ramkishen, AIR 1985 SC 1268.

2. PREVIOUS STATEMENTS SHOULD HAVE BEEN MADE BY THE SAME WITNESS This section cannot be invoked for making use of statements made by some body else. 8 The F.I.R. cannot be utilised to contradict or corroborate any witness other than the maker under Section 145 or 157.9 Where A made a statement to B earlier and A was not asked when he was examined earlier about that statement, but B in his evidence stated about A's statement to him, it was held that A should have been given an opportunity to explain that statement and in the absence of such opportunity the statement of A which was said to have been made to B is inadmissible in evidence. 10 It was held in a case of perjury under Section 193,I.P.C., a false confession is not false evidence. The accused is not a witness for the purpose of the definition of "evidence" in Section 3 of the Evidence Act.Section 157, has no application in such a case. This section applies where a witness is sought to be examined with reference to his earlier statement. 11 When a statement of a witness in court is not believed, his former statement cannot be used in support of the evidence of other prosecution witnesses. 12 Where the evidence of the complaint was not free from blemishes, the former statement though admissible cannot be put as corroboration of an untruthful witness.13 Where a dispute between A & B was whether A had agreed to make a purchase from B on a certain date, a statement in support of A's allegation in a letter written by B to a third party was held inadmissible for purpose of corroboration.14 The force of any corroboration by means of previous consistent statements must evidently depend upon the truth of the proposition that he who is consistent deserves to be believed. If that proposition

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be not universally true, what becomes of the virtue of previous consistent statements? One may persistently adhere to falsehood once uttered, if there is a motive for it and should the value of such a corroboration ever come to be rated higher than it now is, nothing would be easier than for designing an unscrupulous persons to procure the conviction of any innocent men, who might be obnoxious to them by first committing offence, and afterwards making statements, to different people and at different times and places implicating those innocent men. 15 8 Ambika Charan v. Kumed, ILR (1928) Cal 893. 9 Nisar Ali v. State, AIR 1957 SC 366; Balagangadhar Tilak v. Shrinivas Pandit, AIR 1915 PC 7; Tara Singh v. State, AIR 1951 SC 441; State of Gujarat v. Hiralal Devji, AIR 1964 Guj 261; Bhagirathi v. State of Orissa, AIR 1965 Ori 99. 10 Awadh Behari v. State of M.P., AIR 1956 SC 738. 11 Public Prosecutor v. K. Sanjeevamma, AIR 1959 AP 567. 12 Moti Singh v. State of U.P., AIR (1964) SC 900. 13 Gauranga Charan Mohanty v. State of Orissa, (1968) 1 SCWR 23 : 1968 SCD 175. 14 Gillie v. Posho Ltd., (1939) 2 All ER 196. 15 Rey v. Malapabinkapana, (1874) 11 BHC 196, 198.

3. TESTIMONY OF APPROVER "From the position occupied by an approver witness, his evidence is necessarily regarded with very great suspicion as being tainted, and that although he may on the main facts connected with the commission of the offence be truthful and reliable, it is when he comes to implicate any particular person that his evidence should be accepted with the greatest caution. Nothing is easier for a man than to narrate events with accuracy, and yet more so when coming to describe the act s of a particular person, to change his personality so as to exculpate a guilty friend, and to implicate an innocent person or an enemy".16 Hence, it is a rule that corroboration to the evidence of an accomplice must proceed from an independent and reliable source; and that previous statements made by the accomplice himself, though consistent with the statements made by him at the trial, are insufficient for such corroboration. 17 Previous statements of an accomplice may be proved under this section, and may be corroborative. 18 16 Queen Empress v. Bepin Biswas, (1984) 10 Cal 970, 973. 17 Reg v. Malapa bin Kapana, (1874) 11 BHC 196. 18 Barkat Ali v. Crown, (1916) PR No. 2 of 1917 (Cr).

4. EVIDENCE OF WARRANT EXECUTANT The question as to whether the evidence of the person who executes the warrant requires corroboration depends on the facts of each case and no legal distinction can be made merely because the person who executes the warrant happens to be the person who makes the complaint under the proviso of Section 6 of Bombay Prevention of Gambling Act (4 of 1887). 19 19 State of Gujarat v. Jaganbhai, AIR 1966 SC 1633 : 1966 CrLJ 1227.

5. STATEMENT A statement may be written or verbal, on oath or in ordinary conversation. A witness's account books duly kept in the ordinary course of business, may be used under this section. 20

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The Supreme Court observed: "The word 'Statement' used in Section 157 of the Evidence Act is used in its primary meaning and there is nothing in the section which in any way requires that any element of communication to another person should be imported into the meaning of the word "statement" used therein...... A 'Statement' under Section 157 of the Evidence Act means only "something that is stated" and the element of communication to another person is not necessary before "something that is stated" becomes a "statement" under that section. Notes of attendance made by a solicitor at a conversation would be statements within the meaning of Section 157 and would be admissible to corroborate the solicitor's evidence under Section 157. Refreshing memory under Section 159 of the Evidence Act is confined to statements in writing made under the conditions mentioned in that section while corroborating under Section 157 may be by statements in writing or even by oral statements. That is why there is difference in the language between Section 157 and 159. But that difference does not lead to any conclusion which would cut down the meaning of the word "statement" under Section 157 to those statements only which are communicated to another person." 21 Tape recorded statement is also a statement which can be corroborated. 22 The Privy Council held that where a sale deed recited circumstances leading to the same including the fact that a year before a partition was asked for but was refused, the sale deed would be admissible under Section 157 though not for proving refusal of partition yet as corroborating evidence given by the vendor and his witnesses upon other material matters.23 Where a writer of a letter was examined as a witness, the contents of that letter would amount to a previous statement of the witness and can be used under Section 157 though it cannot be used as a substantive evidence. 24 Entries in a diary in a solicitor's office are admissible as corroborative evidence.25 20 STOKES Vol. II, p. 931, fn1. 21 Bhogilal Chunilal v. State of Bombay, AIR 1959 SC 356. 22 Rama Reddy v. V.V. Giri, AIR 1971 SC 1162. 23 Radhoga Baloba v. Abu Rao Bhagwant Rao, AIR (1929) PC 231. 24 Balabhadra v. Nirmala Sundari Devi, AIR (1954) Ori 23. 25 Md. Yusuff v. D, AIR 1968 Bom 112.

6. EFFECT OF SECTION 162, CRIMINAL PROCEDURE CODE The general rule laid down in Section 157 is controlled by the special provisions of Section 162,Criminal Procedure Code so far as statements to the police taken under Section 161,Criminal Procedure Code, are concerned.Section 162 prohibits the use of the record containing the statement of a witness to the police as evidence against the accused as well as proof of such statement by oral evidence.26 Such statements cannot be used as corroboration under this section. 27 Cases which laid down that the record was inadmissible but oral evidence as to the nature of those statements could be given to corroborate the testimony of a witness are no longer of any authority in virtue of the amended Section 162,Criminal Procedure Code .28 The general provisions of the Evidence Act contained in Section 157 are controlled by the special provisions of Section 162,Cr.P.C. which is a special enactment. Therefore, it is important to determine whether an information is really first information and therefore can be used underSection 157 or it is hit by the Section 162. If it falls under Section 157 or it is hit by the Section 162. If it falls Section 162,Cr.P.C. it cannot be used except for the limited purpose mentioned there in that is for contradicting the witness.29After the amendment of Section 162,Cr.P.C. any statement if it falls underSection 162, unless it comes within its proviso, it would prevail over Section 157 and 145 Evidence Act . 30 Where the witness, who is sought to be corroborate by the former statement, had the opportunity of seeing and knowing the facts prior to her giving evidence still they would be admissible to corroborate her evidence.31 The Allahabad High Court held that a statement made to one person would connote the idea that the narration is addressed to that person and implies an animus or intention to

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communicate the subject matter of the statement to such a person, that is the meaning for the expression 'statement' used in Section 162,Cr.P.C. The expression 'statement' inSection 157 has a wider connotation than it has in Section 162,Cr.P.C. 32 A statement of a witness recorded by the investigating officer during the inquest would come under Section 162,Cr.P.C. It can be admitted for purposes of contradiction under Section 145 of the Evidence Act, but how far it would be admissible for corroboration underSection 157 is a doubtful question.33 The Supreme Court held that a Panchanama cannot be treated as a statement made to the Panch witnesses and not to the police officers, as otherwise it would be easy for the police officers to circumvent the provisions of Section 162,Cr.P.C. by formerly askingPanch witnesses to be present and contending that the statements were made to the Panch witnesses and not to themselves.34 The Bombay High Court held that the previous statements of the panchas which are to be found in the pretrap and post-trap Panchanamas in a corruption case do not fall within the Phrase 'statement made to the police officer' as contemplated by Section 162,Cr. P.C. and that the contents of suchPanchanamaswould not come within the ban of that section and such previous statements could be legitimately used for corroboration under Section 157, Evidence Act . 35 If Panchanama was drawn, not during the course of police investigation, it would not be hit by the provisions of Section 162,Cr.P.C. if it was made during investigation it would be hit bySection 162,Cr.P.C. 36 26 Rakha v. Crown, (1925) 6 Lan 171, disproving Mam Chand v. Crown, (1924) 5 Lah 324. 27 Jagwa Dhanuk v. King Emperor, (1925) 5 Pat 63; King Emperor v. Manung The Division, (1926) 4 Ran 72 FB; Rakha v. Crown, (1925) 6 Lah 171, disapproving Mam Chand v. Crown, (1924) 5 Lah 324; King Emperor v. Nga Lun Thoung, (1935) 13 Ran 570 FB. 28 The following cases are no longer of any authority Emperor v. Hanmaraddi, (1914) 16 Bom LR 603 : ILR 39 Bom 58; Fanindra Nath Banerjee v. Emperor, (1908) 36 Cal 281; Muthujumaraswami Pillai v. King Emperor, (1912) 35 Mad 397, FB. 29 In re Rangarajulu,AIR 1958 Mad 368; Naginlal Nandlal v. State of Gujarat, (1962) 1 Cr LJ 142(Guj) (DB); Rakha v. Crown, AIR 1925 Lah 399; Emperor v. Najibuddin, AIR 1933 Pat 589; Valibhai Omarji v. State of Gujarat, AIR 1963 Guj 145; R. v. Akbar, ILR 34 Bom 599; R. v. Narayan, ILR 32 Bom 111(FB) ; Nikha Singh v. State, AIR 1952 Punb 186. See CONTRA Bashir Hussain v. Gulam Mohamed, AIR 1966 Bom 253; Fanandra v. R, 36 Cal 281; Muthukumaraswamy Pillai v. R, (1912) 35 Mad 397; R. v. Hanmaraddi, ILR 39 Bom 58; Baldeo v. R, 61 IC 785. 30 V.K. Belurkar v. State of Maharashtra, 1975 Cr LJ 517(Bom) (FB). 31 State v. Dukhi Dei, AIR (1963) Ori 144; relying on Hem Raj Devilal v. State of Azmer, AIR 1954 SC 462. 32 Shyamlal Sharma v. King Emperor, AIR (1949) All 483(FB) . See also Y.K. Belurkar v. State of Maharashtra, 1975 Cr LJ 517(FB) (Bom). 33 Pandurang v. State of Hyderabad, AIR (1955) SC 216. 34 Ramakishan v. Bombay State, AIR 1955 SC 104. 35 Belurkar v. State of Maharashtra, 1975 Cr LJ 517(Bom) (FB) overruling Dilip Sadashiv Apte v. State, ILR 1974 Bom 613. See also Yali Bhai Omarji v. State, AIR 1963 Guj 145; Y.A. Abraham v. Superintendent of Police, 1988 Cr LJ 1144(Ker) . 36 R.C. Lam v. State of Emperor, AIR 1932 Bom 181; Mohanlal Badadhai v. Emperor, 1941 Guj 149; Yalibhai Omarji v. State of Gujarat, AIR 1963 Guj 145; Hamidulla v. State of Gujarat, 1988 Cr LJ 981(Guj) (DB); Pritam Singh v. State, AIR 1972 All 744; Miyabhai Pirbhai v. State of Gujarat, AIR 1963 Guj 188.

7. STATEMENTS IN DOCUMENTS AND DEPOSITIONS Where the document contained recitals and it is not between the parties to a suit, if the executant of the document is examined as a witness, the recitals contained therein may be used to corroborate his testimony under Section 157.37 37 Kunda Singh v. Rangi Ram, AIR (1950) Pepsu 7; Rangayyan v. Innasimuthu Mudali, AIR 1956 Mad 226.

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8. PREVIOUS DEPOSITIONS Where the plaintiffs wanted to establish their pedigree showing that A and B were brothers, it was held that a statement to that effect made by one of the plaintiffs in a deposition long before the present suit was admissible in evidence.38 In a suit for damages for malicious prosecution the depositions recorded in the criminal court can be made use of only under Section 157 and 158 of the Evidence Act. 39 38 Jadu Nath Sarkar v. Mahendra Nathrar, 12 Cal WN 266. 39 B.S. Wabhusan v. State, AIR 1952 Ori 289; Jamal Momin v. R., AIR 1925 Pat 381.

9. PLEADINGS Plaint in a previous suit can be described as a previous statement of a witness. When the plaintiff comes to give evidence in court in another matter, he can be corroborated with the statements in plaint in the previous suit.40 40 Firm Ralla Yam Raj Kumar v. Union of India, AIR 1952 Punj 340.

10. INQUEST REPORT The Supreme Court held that any statement by any witness during investigation is hit by Section 162 but an inquest report is not a statement of a witness at all but is only a memo of what the investigating officer had himself found and observed at the spot and so, Section 162 would have no application and there is no reason to disbelieve such a statement in an inquest report. 41 41 Rameswar Dayal v. State of U.P., AIR 1978 SC 1558. See also Adi Bhumiant v. State, AIR 1957 Ori 216.

11. POST MORTEM CERTIFICATE The Post Mortem (Certificate) Report can be used only for corroboration of his evidence under Section 157 or to contradict him under Section 145.42 Before the Post Mortem Report can be used to corroborate there must be evidence in the deposition of a witness which can be corroborated under Section 157.43 The operation notes dictated by the surgeon to his junior doctor soon after the operation was performed can be used as corroborative piece of evidence to the doctor's evidence under Section 157 or can be used for refreshing his memory under Section 159. 44 42 Rangappa Goundan v. Emperor, ILR 59 Mad 349; In re, Ramaswamy,AIR 1938 Mad 336; Hadi Kirsani v. State, AIR 1966 Ori 21; Vidyamati v. State, AIR 1951 HP 82; Jagdeo Singh v. State, 1979 Cr LJ 236(All) ; Ganpat Raoji v. State, 1980 Cr LJ 853(Bom) ; State of Rajasthan v. Jawan Singh, 1971 Cr LJ 1656(Raj) . 43 Govind v. State of Gujarat, AIR 1967 Guj 288. 44 1972 WLN 867 (Raj).

12. PANCHNAMA The contents of a panchnama itself are not admissible in evidence unless stated by the concerned witness in the Court. A panchnama can be used to corroborate the version of its author as per provisions under Section 157.45 45 Dashrath v. State of M.P., 2008 CrLJ 640(NOC) (MP) .

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13. KIDNAPPING Where the informant resiled from his statement made to the father of the victim of kidnapping as to the names of kidnappers and the number of the vehicle used in the offence, it was held to be hearsay but would be admissible under Section 157 as corroborative evidence to the testimony of the father that the informant told him that his son was kidnapped.46 46 Vijender v. State of Delhi, (1997) 6 SCC 171 : 1997 SCC 857(Cri) .

14. SEXUAL OFFENCES A statement made by the victim prosecutrix to her husband immediately after the incident is admissible as a former statement of the witness under Section 157 to corroborate her testimony latter as to the same fact.47 It was held that in cases of rape, evidence of the witnesses based on earlier statements made by the victim to them regarding the offence furnishes corroborative evidence, the weight to be attached to the evidence is another matter, depending upon the facts and circumstances of each case.48 Statement by a girl victim of an unnatural offence to her mother 16 hours after the occurrence and that too after persistent questioning, was held not admissible to corroborate her evidence at the trial.49 Where the statement of the prosecutrix made under Section 164,Cr.P.C. supported the prosecution story, but her evidence indicated her conduct and circumstances showing that she was a consenting party of the rape, it was held that her prior statement underSection 164,Cr.P.C. would not amount to corroboration to her evidence in material particulars. 50 47 Sheikh Zakhir v. State of Bihar, AIR 1983 SC 911; State v. Balakrishna Mahanto, (1965) 31 Cut LT 1044 (Statement to the Mother); Gobind Rana v. State, 28 Cut LT 385 (Statement to the bother); 1978 Raj Cr C 419 (Statement to her father and uncle); Radhya Sham v. State of J&K, 1988 Cr LJ 447(J&K) ; Yellappa Laxman v. Basavanatah Sidabasappa Patil, (1972) 2 Mys LJ 39; Gopi Shankar v. State of Rajasthan, AIR 1967 Raj 159; Bandu v. State of Maharashtra, 1996 Cr LJ 285 (para 10) (Bom); State of H.P. v. Ram Dass, 1999 Cr LJ 2802 (para 10) (HP); State of Karnataka v. Manjanna, 2000 Cr LJ 3471 (para 7) (SC) : AIR 2000 SC 2231; Tarachand v. State of Rajasthan, 2001 Cr LJ 3604 (para 19) (Raj); Balaji Laxman Itkar v. State of Maharashtra, 2008 CrLJ 3224, 3226 (para 11) (Bom); Mohd. Kalam v. State of Bihar, (2008) 7 SCC 257, 259 (para 8); Rameshwar v. State of Rajasthan, (1998) 7 SCC 177. 48 P.P. v. Mohini Sankar Dass, (1956) An WR 572. 49 State v. Satya Pal, (1960) 10 Raj 250. 50 Raksnit Khosla v. State, ILR 1969 Del 653.

15. DYING DECLARATION Where a person made a dying declaration but later survived, that statement in the dying declaration is admissible under Section 157, though not under Section 32 of the Evidence Act . Such statement can be used for purpose of corroboration under Section 157. 51 51 Maqsoodan v. State of U.P., AIR 1983 SC 126 : 1982 All LJ 1524; Siddu v. State, 1978 Cr LJ 255(NOC) : 1978 MPLJ 820(DB) ; Namdeo v. State of Maharashtra, 1976 Cr LJ 871(Bom) ; Kina Behara v. State, ILR 1968 Cut 660; Emperror v. Ram Sattu, 4 Bom LR 434; Gentela Vijayavardhan Rao v. State of A.P., AIR 1996 SC 2791 (para 17); Ramprasad v. State of Maharashtra, 1999 Cr LJ 2889 (para 15) (SC) : AIR 1999 SC 1969; Sunil Kumar v. State of M.P., AIR 1997 SC 940 : 1997 CrLJ 1183; State of U.P. v. Veer Singh, AIR 2004 SC 4614 (para 5).

16. STATEMENT OPPOSED TO PUBLIC POLICY In a letter by a Police Officer to his superior expressing that a certain person would make a certain statement if a certain sum of money is given, it was held that such a statement in the letter is not

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properly receivable in evidence under Section 157 or for any other purpose, as it is opposed to public policy.52 52 Bhogilal v. Royal Insurance Co. Ltd., AIR (1928) PC 54.

17. LEGALLY COMPETENT TO INVESTIGATE As long as an authority legally competent to deal with the matter investigates, the requirement of Section 157 would be satisfied.53 The word 'investigate' used in Section 157 is wide in its import. The restricted meaning given to the word 'investigation' in Section 157of the Cr.P.C. cannot be attached to it. The word 'investigation' merely means in this section a fact finding process, and is not confined to the one conducted by the police for the collection of evidence.54 An Inspector of the Criminal Investigation Department is 'an authority legally competent to investigate' within the meaning of this section. 55 A report of a commissioner appointed to inspect and submit a report, can be relied on as corroborative evidence of the inspection when he is examined in court, though he was not examined as a commissioner under Order XXVI, Rule 10, Cl. (2), C.P.C.56 Statements of persons recorded under Section 9 of Railway Property (Unlawful Possession) Act of 1966 can be used for corroboration under Section 157.57 A Deputy Superintendent of Police is an officer legally competent to investigate the fact of a murder and dacoity within this section.58 53 Bhagwan Singh v. State of Punjab, AIR 1952 SC 214; Sarju v. State of W.B., (1961) 2 Cr LJ 71(Cal) . 54 Sarju v. State of W.B., (1961) 2 Cr LJ 711; State of Orissa v. Pareswar Ghasi, AIR 1968 Ori 20. 55 Muthu Kumaraswami Pillai v. King Emperor, (1912) 35 Mad 397(FB) . 56 J.A. Taban v. Khair-ul-Nasa, AIR 1970 Del 205. 57 Babulal v. State, 1977 Cr LJ 2008(All) . 58 In re Thachroth, 45 MLJ 279.

18. STATEMENT UNDER SECTION 161, Cr.P.C. Where the witnesses filled up omissions in their statement under Section 161,Cr.P.C. while giving testimony in the Court, the same would not amount to making improvement and only the contradictions between the two can be proved and utilized by the accused and not the omissions. 59 A statement under Sections 161 , CrPC is not a substantive piece of evidence.

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59 Mohd. Islam v. State of U.P., 1993 Cr LJ 1736 (para 32) (All). 60 Rajendra Singh v. State of U.P., (2007) 7 SCC 378, 385-86 (paras 7 and 11) : AIR 2007 SC 2786.

19. STATEMENT UNDER SECTION 164, Cr. P.C. The privy council held that a statement under Section 164,Cr.P.C., though can never be used as substantive evidence of the facts stated, can be used to corroborate underSection 157 or to contradict under Section 145 of the statement made in court. 61 Where a statement under Section 164,Cr.P.C. was recorded by a Registrar who was deputed for that purpose, it was held that the statement was admissible under the second part ofSection 157.62 A statement of a witness under Section 164,Cr.P.C. recorded by a Magistrate was admissible in evidence to corroborate the statement made by the witness before the committing Magistrate though the witness resiled in the sessions court from the

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evidence given before the committing Magistrate.63A statement or a confession by an accused recorded under Section 164,Cr.P.C. when the accused turned an approver, can be used for corroboration underSection 157, Evidence Act and Section 24 of the Evidence Act is not a bar for using those statements for the purpose of cross examining the approver. 64 61 Bhuboni Sahu v. Emperor, AIR 1949 PC 257. See also Brij Bhushan Singh v. Emperor, AIR 1946 PC 38; Kanai Lal v. State, AIR 1950 Cal 413; Harnam Kisha v. Emperor, AIR 1935 Bom 26. 62 Kina Behara v. State, ILR 1968 Cut 660. 63 Vellaiah Kone v. King Emperor, ILR 45 Mad 766 : AIR 1923 Mad 20; Manar Ali v. Emperor, AIR 1934 Cal 124; Manik Gazi v. R., 1942 Cal 36; Bisipati Padhan v. State, AIR 1969 Ori 289; See CONTRA, State v. Hotey Khan, AIR 1960 All 521; Emperor v. Akbar, ILR 34 Bom 599. 64 Birendra Chandra v. State of Assam, AIR 1957 Assam 168.

20. STATEMENT UNDER SECTION 202, CrPC The statement of the prosecution witness rendered during the course of inquiry under Section 202 , CrPC can be used to corroborate only his own evidence during trial and not the evidence of other witnesses.65 65 Sashi Jena v. Khadal Swain, AIR 2004 SC 1492 (para 11) : (2004) 4 SCC 236 : 2004 CrLJ 1394. The Court referred to its own 4-Judge Bench decision in Moti Singh v. State of U.P., AIR 1964 SC 900, page 901 : (1964) 1 CrLJ 727.

21. FORMER STATEMENT IN COMMITTAL COURT The Supreme Court observed "Where a witness turns hostile in cross examination, his former statement in the examination in chief could be used for corroboration of his statement in the examination in chief or for contradiction of his statement in the cross-examination if the former statement could be brought under Section 157 by transmitting it into substantive evidence by the application of Section 288Cr.P.C. Where the witness turns hostile from the start there is no question of corroboration and his former statement can be used only for contradiction underSection 145." 66 Even where a former statement was recorded by a person or court not having jurisdiction, it can still be made use of for purposes of Section 145, 155 and 157. 67 Statements made in an enquiry by the Court of Wards for the purpose of according consent to an adoption, the statement are not made before the authority legally competent to enquire into the fact of giving of the authority to adopt.68 The investigation must be by a person legally competent. He must have power to investigate under some law statutory or otherwise. There being no provision of law or rule under which a Sarpanch is legally competent to hold the test identification parade, his report of identification parade cannot be relied upon under Section 157 as a former statement to corroborate the testimony of the informant, though it can be used for contradiction under Section 145 or for impeaching the credit of the witness under Section 155. 69 A verified application made by a guardian containing the ward's date of birth cannot be treated as a statement made before an officer legally competent to investigate nor is it a statement at or about the time of the existence of the fact of birth; and so cannot be used under this section nor to prove the age of the ward though it can be used for re-freshing the memory under Section 159.70 66 Bhagwan Singh v. State of Punjab, AIR 1952 SC 214. See also Biswabhushan Naik v. State of Orissa, 1952 Ori 289; State v. Hardial Singh, AIR (1953) Pepsu 66; Narayan Ganapati v. State, AIR 1959 Bom 552. 67 State of Punjab v. Vishwajit Singh, AIR 1987 P&H 126. 68 See also Oriental G.S.L. Insurance Co. v. Narasimha, ILR 25 Mad 183. 69 State v. Pareswar Ghasi, AIR 1968 Ori 20; Kumara Muthu v. Emperor, AIR 1919 Mad 487; Emperor v. Ramchandra, AIR 1928 Cal 732; Tobarak Mondal v. King, AIR (1949) Cal 629; Thakurji v. Parmeshawar Dayal (Statement before collector), AIR 1960 All 339.

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70 Gopinath v. Satish Chandra, AIR 1964 All 53.

22. FIRST INFORMATION REPORT The F.I.R. is not substantive piece of evidence and can only be used to corroborate the statement of the maker under Section 157 or to contradict it under Section 145 of the Evidence Act . It cannot be used as evidence against the maker if he becomes an accused, nor to corroborate or contradict other witnesses.71 Where the first informant had turned hostile and testified that he had made no statement to the police and had rather signed on dotted lines, it was held that such an F.I.R. could not be used to corroborate the first informant or to discredit the other prosecution witnesses before whom the deceased had made the dying declaration.72In certain cases where the maker of the information which was recorded as F.I.R. had died as a result of the injuries received then it would be admissible as substantive evidence under Section 32 of the Evidence Act. 73 It was held by the Supreme Court that the fact that the F.I.R. was lodged within 35 minutes of the occurrence at a police station which is at a distance of two miles from the place of the occurrence and the fact that names of the accused and also of the witnesses were mentioned therein lends considerable corroboration to the testimony of the maker who is examined as a witness, as regards the participation of the accused in the occurrence. 74 A complaint in a corruption case is a F.I.R. and is admissible for corroboration of evidence of the maker under Section 157. 75 When the maker of the FIR is examined in court and the report is not tendered by the prosecution in accordance with the provisions of Section 157 Evidence Act it cannot be relied on for any purpose. 76 When the prosecution has neither produced in evidence the person who made the first report in the Thana nor the person who wrote it out at the Thana, the first report cannot be referred to in evidence. 77 When there is delay in giving the F.I.R., unless the delay is explained it has no corroborative value at all.78 When the maker of the F.I.R. is alive it is admissible only under Section 157 to corroborate his statement, and if he is dead it would be admissible under Section 32 of this act. 79 Where the information regarding the commission of an offence was given to the police on two different dates by two different persons, and one was earlier to the other it was held that the later report is not a statement made to a Police Officer in the course of investigation but it is an independent first information report and so can be used by the prosecution. 80 In a case of murder allegedly committed by the accused of his wife, he made an FIR before the police that his wife was lying dead in their hut. In absence of any evidence showing the complicity of the accused in the crime, merely on the statement of the accused in the FIR, it could not be presumed that he had murdered his wife.81 71 Nisar Ali v. State of U.P., AIR 1957 SC 366; Aghnoo Nagesia v. State of Bihar, AIR 1966 SC 119; Emperor v. Nazeer Ahmed, AIR 1945 PC 18; Damodar Prasad v. State of Maharashtra, AIR 1972 SC 622; Pundlik v. State, AIR 1951 MP 72; Hasib v. State of Bihar, AIR 1972 SC 283; Kalu Mandal v. State, AIR 1950 Cal 412; Dhirendra Nath v. State, AIR 1952 Cal 621; Maganlal Radha Kishen v. Emperor, AIR 1946 Nag 173; Abdul Latif v. Emperor, AIR 1941 Cal 533; A.W. Khan v. State, AIR 1962 Cal 641; Ram Naresh v. Emperor, AIR 1939 All 242; In re Rangarajulu Naidu,AIR 1958 Mad 368; Suka Misra v. State, AIR 1951 Ori 71; Thommi Anthoni v. Sirkar Prosecutor, AIR 1950 Tra Co 41; Sonkarlinga Tewan v. Emperor, AIR 1930 Mad 632; Emperor v. Dubai, AIR 1942 Pat 113; Bhagirathi v. State, AIR 1965 Ori 99; State v. Shiv Singh, AIR 1962 Raj 3; Shanker v. State of U.P., AIR 1975 SC 757; B.G. Singh v. State, ILR 1974 HP 948; Padan Pradhan v. State of Orissa, 1982 Cr LJ 534(Ori) ; Mazidar Rahman v. State of Assam, 1977 Cr LJ 1293; State of Gujarat v. Hiralal Deivji, AIR 1964 Guj 261; Balgangadhar Tilak v. Srinivas Pandit, AIR 1915 PC 7; Tara Singh v. State, AIR 1951 SC 441; Miyana Hasan Abdulla v. State of Gujarat, AIR 1962 Guj 214; Sagar Chandra Saha v. State, AIR 1962 Cal 85. 72 George v. State of Kerala, AIR 1998 SC 1376 : 1998 Cr LJ 2034; Bijoy Singh v. State of Bihar, (2002) 9 SCC 147 (para 5) : AIR 2002 SC 1949 : 2002 CrLJ 2623; Andrews v. State of Kerala, (2002) 10 SCC 126 (para 4). 73 Inchan v. Emperor, (1943) Cal 647. 74 Dargahi v. State of U.P., AIR 1973 SC 2695; Satyawir v. State, AIR 1958 All 746.

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75 Y.K. Belurkar v. State of Maharashtra, (1975) Cr LJ 517(Bom) FB. 76 Damodar Prasad Chandrika Prasad v. State of Maharashtra, AIR 1972 SC 622. 77 State v. Gajraj, ILR (1952) Raj 910. 78 1974 All Cr R 21. 79 Maqsoodan v. State of U.P., AIR 1983 SC 126. 80 Emperor v. Lalji Rai, AIR (1936) Pat 11. 81 Bapurao Irbhan Tayade v. State of Maharashtra, 2002 CrLJ 1280, 1282 (para 9) : 2002 (4) All CrLR 1007 : 2002 All MR 778(Cri) .

23. AT OR ABOUT THE TIME WHEN THE FACT TOOK PLACE These words mean that the statement must be made at once or at least shortly after when a reasonable opportunity for making it presents itself. What is a reasonable time is a question of fact in each case. The object of the section is to admit statements made at a time when the mind of the witness is still so connected with the events as to make it probable that his description of them would be accurate. In STEPHEN'S DIGEST OF LAW OF EVIDENCE (10th Ed. p. 170) it is stated that the expression "at or about the time" means reasonably soon after the alleged offence or very shortly after. 82 The Supreme Court observed: "There can be no hard and fast rule about the "or about" condition in Section 157." The main test is whether the statement was made as early as can reasonably be expected in the circumstances of the case and before there was opportunity for tutoring or concoction".83 Any former statement made by a witness at or about the time when the incident took place becomes usable as of corroborative value. Though such statements are not part of the main transaction, they have a probative value for corroborative purpose if such statements have been made without delay. Delay restricts its utility to confronting the maker for contradicting him. Such a statement would have no corroborative value.84 Where the witness disclosed to his brother-in-law about his version of the occurrence and there was nothing to indicate that he was either tutored or influenced by anybody during the interregnum, such a statement could be treated as corroborative piece of evidence.85 A child victim of rape stated to her mother shortly after the occurrence about the incident. The mother also stated what her child stated to her shortly after the incident. It was held by the Supreme Court, that the statement of the mother amounts to corroboration of the evidence of the child victim; it was further held the previous statement of an accomplice or a complainant is legally admissible as corroboration provided the conditions prescribed by Section 157 Evidence Act, viz., "at or about the time etc." are fulfilled; the weight to be attached to it is another matter. It may be in some cases the evidentiary value of the two statements emanating from the same tainted source may not be high, but in view of Section 118 its legal admissibility as corroboration cannot be questioned. 86 Statements by victims of rape to her husband immediately after the incident and for other cases see also under the head sexual offences.87 Annoyance was caused to a woman teacher by the Principal by cutting jokes in the presence of others. It was held that her conduct in narrating all that transpired to some of her colleagues is not res gestae under Section 6 but the same when corroborated by other witnesses is clearly admissible under Section 157.88 The Lahore High Court has held that the proximity of time must be established. 89 If time for reflection passes between the event and the subsequent statement, it not only can be of very little value but may be actually dangerous as such statements can be easily brought into being. Such delayed statements are inadmissible. The section says that the statement must be made "at or about the time" and not" "at any time after the event."90 Where the occurrence took place at 7 A.M. and dying

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declaration was recorded at 12-30 P.M. and the person survived, it was held that his statement must be deemed to have been recorded at or about the time of occurrence, and could be used for corroboration of his testimony in court.1 Where a statement was made more than 12 hours after the occurrence, it was held that the maker (witness) was in a precarious condition and as there was no opportunity for tutoring or concoction, it can be taken that the statement was made at about the time when the fact took place and hence admissible under Section 157. 2 Where the question arose in 1944 whether A and B were partners in a business in 1936, A deposed that he was an employer and B was an employee. In 1936 A handed over a letter to B's lawyer wherein it was stated so. It was held by the Privy council that the document of 1936 could not corroborate the evidence given 8 years later and it was a most contemporary document which correctly stated the terms agreed upon between the parties. 3 The statement of a girl victim of rape to her mother made 16 hours after the occurrence that too after persistent questioning was held not admissible to corroborate her evidence.4 Where in a murder case the witness hearing the gun shot reached the spot soon after the incident and saw the deceased lying on the ground in badly injured condition and the brother of the deceased standing there and on enquiry the brother of the deceased told him that the accused had killed his brother by firing upon him due to non-payment of rangdaritax (Goonda-tax), it was held that though the witness had not seen the incident but his evidence would be admissible in evidence to corroborate the testimony of the eye-witness under Section 157 of the Act . 5 82 Reg v. Lillyman, (1896) 2 QB 167. 83 Rameshwar Kalyan Singh v. State of Rajasthan, AIR 1952 SC 54. See also Mahabir Singh v. State of Haryana, 2001 Cr LJ 3945 (para 23) (SC) : AIR 2001 SC 2503. 84 Nathuni Yadav v. State of Bihar, AIR 1997 SC 1808. 85 State of Tamil Nadu v. Suresh, AIR 1998 SC 1044 : 1998 Cr LJ 1416 (para 29) (SC), reversing Cri A Nos. 782-83 of 1989, decided on 8.2.1991 (Mad). 86 Sheikh Zakir v. State of Bihar, AIR 1983 SC 911; In re, Boya Chinnappa,ILR 1951 Mad 973; Bachu v. King, ILR 1951 Cal 219. 87 State of Rajasthan v. Rameshwar, AIR 1951 Raj 30; Bhupati Ghosh v. King, (the witness came several hours after the occurrence and his statement is not admissible) AIR 1950 Cal 327; State of Bihar v. Srilal Kejriwal, AIR 1960 Pat 459 (approvers statement soon after the crime); State of Orissa v. Parvatisam, AIR 1963 Ori 58; State of Mysore v. Kantappa, (1964) Mys LJ 393; D.B. Deshmukh v. State, AIR (1970) Bom 438; Khali Sahu v. State, (1975) 41 Cut LT 751; 1978 Raj Cr C 419, (Rape victim's statements to her father and uncle); 1983 Raj Cr C 363 (Rape victim's statements to her father and uncle). 88 Chander Kala v. Ram Kishan, AIR 1985 SC 1268. 89 Manghat Rai v. Emperor, AIR 1928 Lah 647. 90 Appadurai, In re,ILR (1945) Mad 821. 1 1984 All Cr. R. 459. 2 Kina Behera v. State, ILR 1968 Cut 660. 3 Hurberi P. James v. Ghulam Hussein, AIR (1949) PC 151. 4 State v. Satya Pal, (1960) 10 Raj 250. 5 Ramashray Yadav v. State of Bihar, AIR 2006 SC 201, 204 (para 9) : 2006 CrLJ 133, 136 (paras 9 & 10). The Court relied on Chander Kala v. Ram Kishan, AIR 1985 SC 1268 : (1985) 4 SCC 212 : 1985 CrLJ 1490.

24. CASES In 1874 five out of six persons who were named as having committed a murder were arrested and after inquiry before a Magistrate were tried before the Court of Sessions and convicted. At the time of

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the inquiry before the Magistrate, the sixth person absconded, and evidence was recorded by the Magistrate in his absence. In their examination before that officer, the witnesses deposed to the absconder having been one of the participators in the crime charged against the prisoners then under trial. In 1886, the absconder was apprehended and tried before the Court of Session upon the charge of murder. Of the witnesses examined at the first trial, only one was living. He was examined and his deposition given in 1874 was also admitted. It was held that the deposition taken in 1874 of the surviving witnesses was admissible under this section as corroboration of his evidence given at the trial of the prisoner.6 The principle underlying the rule of corroboration is that he who is insistent deserves to be believed. Therefore previous statements of the victims who has turned hostile and does not support the case of prosecution cannot be used as corroboration under Section 157. 7 Before corroborative evidence is admitted, evidence sought to be corroborated must be given first. 8 In order that a former statement be admissible under Section 157 it is not necessary that the witness sought to be corroborated must also say in court that he had made a former statement. 9 Where the witness who is sought to be corroborated by the former statement, had the opportunity of seeing and knowing the faces prior to her giving evidence still they would be admissible to corroborate her evidence.10 6 Queen Emperor v. Ishri Singh, (1886) 8 All 672. 7 Pratap Singh v. State of M.P., (1972) Cr LJ 172. 8 Kshetrimayum v. Union Territory of Manipur, 1968 Cr LJ 690, 693 (Mani). 9 Rama Ratan v. State, 1962 SC 424 Overruling Misri (Mst.) v. Emperor, AIR (1934) Sind 100; Nazar Singh v. State, AIR 1951 Pepsu 66; Radha Kishan v. State of Rajasthan, 1973 Cr LJ 481(Raj) . 10 State of Orissa v. Dukhi Dei, AIR 1963 Ori 144 relying on Hem Raj Devilal v. State of Azmer, AIR 1954 SC 462.

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Ratanlal & Dhirajlal: Law of Evidence, Updated 23rd Edition/THE INDIAN EVIDENCE ACT (ACT 1 OF 1872)/PART III PRODUCTION AND EFFECT OF EVIDENCE/CHAPTER X OF THE EXAMINATION OF WITNESSES/S. 158.

CHAPTER X OF THE EXAMINATION OF WITNESSES S. 158. What matters may be proved in connection with proved statement relevant under Section 32 or 33. Whenever any statement, relevant under Section 32 or 33, is proved, all matters may be proved, either in order to contradict or to corroborate it, or in order to impeach or confirm the credit of the person by whom it was made, which might have been proved if that person had been called as a witness and had denied upon cross-examination the truth of the matter suggested. 1. PRINCIPLE AND SCOPE

Sections 32 and 33 of the Act permit the putting in of statements, oral or written, or statements made in a judicial proceeding, by a person who cannot be examined as a witness. The Legislature intends by this section to submit such statements to the tests of contradiction and corroboration, in the same way as if those statements were made by the witness in the box. STEPHEN in his Digest (Art. 135) states: "The object of this section is to expose statements to every possible means of contradiction or corroboration in the same manner as that of a witness before the court under cross-examination, the reason being that statements admissible under Section 32 and 33 are exceptional cases and it is but just and reasonable that such statements should as far as possible be subject to the various modes of attacking or corroborating them. No sanctity attaches to the statements simply because a person is dead; his credibility may be impeached or confirmed in the same manner as that of a living witness." A statement made by a widow in her gift-deed was sought to be put in evidence to contradict her earlier statement. It was held that the statement in the gift deed was relevant for purpose of contradicting her earlier statement. However on facts it was held that the statement in the gift deed did not directly contradict her earlier statement.11 Under this section prior statements of a deceased person can be admitted both for corroboration and contradiction. 12 Where the deposition of a witness after his death was admitted in another proceeding under Section 33, and was sought to be proved through another witness, and the witness was asked what information the deceased gave him soon after the occurrence, it was held that such question was admissible under this section to corroborate the deposition of the deceased witness.13 Where the deceased person stated five years back that his vision was poor and blurred and in the present proceeding the deceased stated the names of the assailants in his dying declaration, it was held that the previous statement five years back is admissible to contradict the statement in his dying declaration which is admissible under Section 32. 14 In a suit for malicious prosecution the depositions recorded in a criminal court can be made use of as substantive evidence, if the parties agreed to treat those depositions as evidence in the suit or if they are admissible under Section 33 of the Evidence Act . Otherwise the deposition in the criminal case can be made use of only under Sections 157 and 158 of the Evidence Act. 15 11 Ramrati Kuer v. Dwarika Prasad Singh, AIR 1967 SC 1134.

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12 Sudhershana v. Sitharamamma, 1933 Mad WN 1148. 13 Fool Kissory v. Nobin Chunder, ILR 23 Cal 441. 14 State v. Sheo Babu Singh, 1964 All LJ 1134. 15 S.T. Sahib v. Hasan Ghani Sahib, AIR 1957 Mad 646.

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Ratanlal & Dhirajlal: Law of Evidence, Updated 23rd Edition/THE INDIAN EVIDENCE ACT (ACT 1 OF 1872)/PART III PRODUCTION AND EFFECT OF EVIDENCE/CHAPTER X OF THE EXAMINATION OF WITNESSES/S. 159.

CHAPTER X OF THE EXAMINATION OF WITNESSES S. 159. Refreshing memory. A witness may, while under examination, refresh his memory by referring to any writing made by himself at the time of the transaction concerning which he is questioned, or so soon afterwards that the Court considers it likely that the transaction was at that time fresh in his memory. The witness may also refer to any such writing made by any other person, and read by the witness within the time aforesaid, if when he read it he knew it to be correct. When witness may use copy of document to refresh memory. Whenever a witness may refresh his memory by reference to any document, he may, with the permission of the Court, refer to a copy of such document: Providedthe Court be satisfied that there is sufficient reason for the non-production of the original. An expert may refresh his memory by reference to professional treatises. 1. PRINCIPLE AND SCOPE

Section 157 states that the former statements whether oral or documentary can be proved to corroborate the testimony of the witness whereas this section allows the witness to refresh his memory by a reference to an earlier document. TAYLOR ON EVIDENCE (Section 1406) observes: "A witness is sometimes permitted to refresh and assist his memory by the use of written instrument, memorandum or entry in a book. But this course,-except in the case of scientific witness referring to professional books as the foundation of their opinion,--can only be adopted where the writing has been made, or its accuracy recognised, at the time of the fact in question, or, at furthest, so recently afterwards, as to render it probable that the memory of the witness had not then become defective." "A witness may refresh his memory in the witness-box by reference to any writing made or verified by himself concerning the facts to which he testifies provided that it was made or verified by him while the facts were fresh in his memory.16 The principle is one of practice only and not part of the substantive law.17 The reason for the rule was stated to be that a witness should not suffer from a mistake and may explain an inconsistency.18 If a witness has become blind, the document may be read over to him." 19 (PHIPSON ON EVIDENCE, 15th Edn. (2000), page 267 (para 11-45)). It was held by FIELD J. that in the interests of truth it would be desirable to recognise the full benefit of recollection of the witness as to the whole of the facts; writing is a more reliable means of preserving the truth than simply memory; that to revive a faded memory, this section permits a witness to refresh

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his memory respecting the facts about which he speaks, by anything written by himself contemporaneously with the transaction in which he testifies or soon afterwards when the facts were fresh in memory, a witness may also refresh his memory by referring to writing made by any other person very shortly after the date on which the event in question occurred and read by him shortly after the event if, when he heard it he knew that the same was correctly stated in writing. 20 Section 159 and 160 should be read together for a proper understanding of their scope. When a witness gives his evidence in court about the facts which might have taken place sometime before, Section 159 says he can refresh his memory by referring to the document, whereas section. 160 says that he can testify the facts contained in the document by looking into the document. The only condition under Section 160 is that he had no recollection of the facts but he is sure that whatever contained in the document was correctly recorded. There is some distinction between Section 159 and Section 160 though the object is the same for the both the sections. 16 R. v. Mills & Rose, (1962) 46 Cr App R 336 at 342; Groves v. Redbart, (1975) Crim LR 158. 17 R. v. Governor of Gloucester Prison, ex p. Miller, (1979) 1 WLR 537. 18 Halliday v. Holgate, (1868) 17 LT 18, per MONTAGUE SMITH J. 19 Catt v. Howard, (1820) 3 Stark R 3; Vaughan v. Martin, (1796) 1 Esp 440. 20 Emperor v. Jhubboo Mahton, (1882) 8 Cal 739, 742.

2. SECTIONS 159 & 160--COMPARED SECTION 159 1. The witness refreshes his memory by looking into document and gives his evidence in the ordinary way. 2. The document is not tendered in evidence. So the witness's memory or recollection is the evidence, after looking into the document. 21 Dharma v. State, AIR 1966 Raj 74. The mere handing over of a document to a witness for the purpose of refreshing his memory does not make the document a piece of evidence in the case. 22 Tribhuvan Ojha v. Ramchandra Dube, (1934) 14 Pat 233. 3. The witness can even refer to a copy of the document with the permission of the court. 4. There is no evidentiary value of the document.

SECTION 160 1. The memory of the witness is not refreshed with the help of the document. 2. The document is tendered in evidence. So the document is the evidence of facts contained therein and which were spoken to by the witness. The document would be tendered only when the witness states that (1) he had no specific recollection of the facts stated in the document and (2) that he is sure that the facts were correctly recorded in the document. Even if he omits to say in evidence that he had no recollection of facts and that he is sure that the facts were correctly recorded, it would not make the document inadmissible, provided he states on oath that the facts were correctly stated in the document. 23 Pratap Singh v. Emperor, AIR 1926 Lah 310. 3. The copy of the document cannot be tendered. But see commentary under Section 160. 4. There is some evidentiary value because of its being tendered in evidence. 24 Man Mohan Singh v. Bhanwarlal, AIR 1964 MP 137, 146.

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3. MAY REFRESH HIS MEMORY The section says that a witness may refresh his memory as stated. He is not bound to do so; and the accused cannot compel him to do it.25 25 In the matter of the Petition of Kali Churn Chunari,(1881) 8 Cal 154.

4. ANY WRITING In this section it is stated that the witness can refresh his memory by referring to any writing. The word "any writing" includes also printed matters.26 It is immaterial what the document is, whether it be a book of account, letter, tradesman's bill, notes made by the witness, or any other document which is likely to assist the memory of the witness. Where the question was whether a candidate appealed to voters on the ground of religion, short and long-hand notes made by persons who heard the speeches were permitted to be used by them for refreshing memory.27 Their contents can also be brought on record by direct oral evidence in the manner prescribed by Section 160. A witness may refresh his memory by referring to any writing made by himself at the time of the transaction concerning which he is questioned.28 Where a Commissioner's inspection report in respect of a property was cancelled and a party sought to examine witness, not in the capacity of a Commissioner but an ordinary witness, he could be allowed to refer to his report to refresh his memory as he was being examined after a long lapse of time. 29 26 See General Clauses Act 10 of 1897Section 3 (58); Ram Chandra v. Emperor, AIR 1930 Lah 371. 27 Ziyaudin Burhanuddini v. Brij Mohan Ramdass, AIR 1975 SC 1788. 28 In Re Subramanian,1979 Mad LJ 546(Cri) . 29 V.P. Padmanabhan Nair v. M/s Grasim Industries, Mavoor, AIR 1997 Ker 356. See also State of Karnataka v. K. Yarappa Reddy, 2000 Cr LJ 400 (paras 21-22) (SC) : AIR 2000 SC 185.

5. HOROSCOPE The Privy Council in Banwarilal v. Mahesh , (1918 P.C. 118) held that a horoscope can be used to help the witness in proving the date of birth stated in it under Section 159 or Section 160. 30 30 Shanker Gir v. Chinnuji, AIR 1923 Nag 164; Harbahadur Lal v. Chandraj Bahadur, AIR 1918 Oudh 371; Savitri Bhai v. Sitaram, AIR 1986 MP 218.

6. AGE CERTIFICATE An age certificate given by a person can be used to refresh his memory. 31 31 Venkata Rangappa v. Subba Raya Goundan, 33 IC 142.

7. ACCOUNT BOOKS It was held by the Supreme Court that where a witness has to depose to a large number of transactions contained in an account book or some other documents, there is nothing wrong in allowing him to refer to the account books and documents to refresh his memory while answering the questions put to him; he cannot be expected to remember every transaction and its details, he can

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use it to refresh memory under Section 159, though he had no recollection of those transactions, provided he is sure that those facts are correctly recorded in the account books or documents. In such case Section 160 specifically permits him to testify to those facts. 32 Though account books produced at a late stage are not admitted in evidence, the party may be allowed to refresh his memory by reference to them and such procedure is proper.33In a prosecution under Section 409,I.P.C., it was held that loose sheets of accounts which are used by the auditor when he audited the accounts would be admissible underSection 63(3) or to refresh his memory under Section 159 or Section 160 of the Evidence Act .34 32 State of A.P. v. Ganeshwara Rao, AIR 1963 SC 1850. 33 Jewanlal Daga v. Nilmani Choudhary, AIR 1928 PC 80 : 55 IA 107. 34 State of Orissa v. Harish Chandrakar Mohapatra, AIR 1966 Ori 189.

8. POST MORTEM REPORT A medical man in giving evidence may refresh his memory by referring to a report which he has made of his post-mortem examination, but the report itself cannot be treated as evidence. 35 (See cases under the same head noted in Section 157, such reports can be used under Section 159 also). 35 Roghuni Singh v. R, (1882) 9 Cal 455; Loku Basappa Pujari v. State, (1959) 61 Bom LR 1271.

9. PANCHANAMAS Even if a panchanama contained a statement made by a witness as to the crime committed, it is not admissible in evidence, a panch witness can make use of it for the purpose of refreshing his memory, where the panchanama is made by the police but is immediately read over to the panch and admitted by him to be correct.36 However, it can be used in evidence if the concerned witness states the same in the Court.37 When a search was conducted by the police in the presence of the witnesses which is obligatory, and a panchanama was prepared, it was held that it cannot be used to corroborate the evidence either of the Police Officer or of the Panch, and it cannot be referred by the witness panch to refresh his memory, as it is hit by Section 162, Cr PC, and Section 159 is not intended for that purpose. 38 However, it was held that a search witness attesting the Mahajan prepared immediately after the raid can be used under Section 159 by the attesting witness to refresh his memory, and can also be used as corroboration of his evidence under Section 157. 39 See also commentary under the head Panchanama in Section 157. 36 Emperor v. Mahadeo Dewoo, (1945) 47 Bom LR 992 : AIR 1946 Bom 189; Dashrath v. State of M.P., 2008 CrLJ 640(NOC) (MP) . 37 Dashrath v. State of M.P., 2008 CrLJ 640(NOC) (MP) . 38 State of Gujarat v. Raji Bhai, AIR 1960 Guj 24; Mia Bhai v. State of Gujarat, AIR 1963 Guj 188; Kajaji Ramji v. State of Gujarat, 1966 CrLJ 331(Guj) ; Ramdeo v. State, (1963) 2 Cr LJ 198(All) (DB); Tanu Kayputra v. State, 1977 CrLJ 119(NOC) (Cal) . 39 1972 Mad LJ (Cri) 321 (Mys).

10. POLICE DIARIES Police diaries are not admissible as substantive evidence or for corroborating the Police Officer, but are admissible for the only limited purpose of contradicting him or for refreshing his memory. 40

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40 Dalsingh v. King Emperor, ILR 44 Cal 876(PC) : AIR 1917 PC 25; Queen Empress v. Mannu, ILR 19 All 390(FB) ; Achhaibat Singh v. Emperor, 22 Cr LJ 374(Pat) .

11. SPECIAL DIARY The special diary may be used by the Police Officer who made it, and by no witness other than such officer, for the purpose of refreshing his memory.41 This case was approved by the Privy Council in Dalsingh v. R. 42 41 Queen-Empress v. Mannu, (1897) 19 All 390(FB) ; King-Emperor v. Nga Lun Thoung, (1935) 13 Ran 570(FB) . 42 AIR 1917 PC 25. See also: Dadan Gazi v. R, (1906) 33 Cal 1023; Experora v. Dharam Vir, AIR 1933 Lah 498.

12. DYING DECLARATION The dying statement of a deceased person may be proved in the ordinary way by a person who heard it; and the writing may be used for the purpose of refreshing the witness's memory. 43 43 In the matter of the Petition of Samiruddin,(1882) 8 Cal 211.

13. AT THE TIME OF THE TRANSACTION In PHIPSON ON EVIDENCE, 15th Ed. (2000), Para 11-49, Page 271 it is observed: "Whether a document is contemporaneous is a matter of fact and degree. 44 The document must have been written either at the time of the transaction or so shortly afterwards that the facts were fresh in witness's memory45. This definition was accepted by SACHS L.J., in delivering the judgment of the Court of Appeal in R. v. Richardson 46. He added that it provided a measure of elasticity and "should not be taken to confine the witness to an over-short period." A delay of a fortnight may not be fatal 47, but an interval of four weeks48 or three months,49 has been held to exclude." Where a doctor wants to refresh his memory from the slip of paper which his pleader gave him, as to the injuries on the person of the complainant, it must be shown that the writing was made by the deponent at the time when he examined the complainant, or so soon after that and the court considers it rightly that the transaction was at that time fresh in his memory. 50 Notes containing a summary of discussions held at different times prepared by a party which do not in any manner serve his interest cannot be considered self-serving notes and are admissible to corroborate the maker under Section 157 and he can refresh his memory by looking at them under Section 159.51 "In R. v. Da Silva, 52 the Court of Appeal considered whether the judge has a discretion to permit a witness to refresh his memory, after commencing his evidence, from a document that is not contemporaneous. The Court said : "In our judgment, therefore, it should be open to the judge, in the exercise of his discretion and in the interests of justice, to permit a witness who has begun to give evidence to refresh his memory from a statement made near to the time of events in question, even though it does not come within the definition of contemporaneous, provided he is satisfied : 12)  that the witness indicates that he cannot now recall the details of events because of the lapse of time since they took place; 10)  that he made a statement much nearer the time of the events and that the contents of the statement represented his recollection at the time he made it; 7)  that he had not read the statement before coming into the witness-box;

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5)  that he wished to have an opportunity to read the statement before he continued to give evidence. We do not think that it matters whether the witness withdraws from the witness-box and reads his statement, as he would do if he had the opportunity before entering the witness-box, or whether he reads it in the witness-box. What is important is that if the former course is adopted, no communication must be had with the witness, other than to see that he can read the statement in peace, Moreover, if either course is adopted, the statement must be removed from him when he comes to give his evidence and he should not be permitted to refer to it again, unlike a contemporaneous statement which may be used to refresh memory while giving evidence." 53 (PHIPSON ON EVIDENCE, 15th Edn. (2000), pages 271-272 (para 11-51)). 44 R. v. Simmonds, (1967) 51 Cr. App. R. 316 at 330. 45 Burrough v. Martin, (1809) 2 Camp. 112; Whitefield v. Aland, (1849) 2 C&K 1015; Talbot v. Cusack, (1864) 17 Ir.C.L.R. 213; R. v. Mills and Rose, (1962) 46 Cr. App. R. 336 at 342. 46 (1971) 1 WLR 889, 894. 47 R. v. Langton, (1877) 2 QBD 296. 48 R. v. Graham, (1973) Crim. LR 628; R. v. Kinloch, (1795) 25 How. St. Tr. 892 (several weeks). 49 R. v. Woodcock, (1963) Cri. LR 273. 50 Pannalal Shaw v. Nani Gopal Biswas, AIR 1949 Cal 103. 51 Hari Das Mundhra v. State, (1962) 1 All 451. 52 (1990) 90 Cr App R 233. Cf. earlier dicta in R. v. Cheng, (1976) 63 Cr App R 20 CA. 53 Ibid., at 238. See also R. v. S. Ribble Magistrates ' Court, ex p. Cochrane,(1996) 2 Cr App R 544, where the Divisional Court expressed the view that the statement should not necessarily be removed from the witness.

14. INADMISSIBLE DOCUMENTS For the purpose of refreshing the memory under this section, it is not necessary that the document which is looked into should be legally admissible in evidence e.g., unstamped document, 54 or insufficiently stamped document,55 or any statement falling under Section 162,Cr PC.56 The reason being that such documents would not be tendered in evidence and no question of their admissibility would arise. But a Court should not take cognizance of the terms of a document which is inadmissible in evidence and has been referred to by a witness merely in order to refresh his memory as to a date. 57 In PHIPSON ON EVIDENCE, 15th Edn. (2000), Para 11-48, Page 270 it is observed: "The document need not be admissible per se. Thus the fact that an invalid lease,58 or an irregular deposition,59 may be referred to and used for this purpose does not make it evidence in the case. 60 54 Birchall v. Bullough, (1896) 1 QB 326; or an Maugham v. Hubbard, (1828) 8 B&C 14; invalid lease Bolton v. Tomlin, (1836) 5 A&E 856. 55 Tribhuvan Ojha v. Ramchandra, (1934) 14 Pat 233. 56 Bhondu v. R., AIR 1949 All 364. See also Emperor v. Mahadeo Dewoo, AIR 1946 Bomb 189; Abdulla v. Emperor, AIR 1933 Lah 716. 57 Bhogilal v. Royal Insurance Co. Ltd., (1927) 6 Ran 142 : 30 Bom LR 818(PC) : AIR 1928 PC 54. 58 Bolton v. Tomlin, (1836) 5 A&E 836. 59 R. v. Mann, (1885) 49 JP 743.

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60 Alcock v. Royal Exchange Assurance, (1849) 13 QB 292; Payne v. Ibbotson, (1859) 27 LJ Ex. 341.

15. COPY OF THE DOCUMENT MARKBY on Evidence (P. 111) observes: " Section 159, deals with a case in which the witness refreshes his memory. He is sure not only that the facts were correctly recorded, but of the facts themselves, and prepared to swear that they existed, and this explains why in Section 159 reference to a copy is allowed, but not in Section 160." 61 The Act does not require that this copy shall have been made by the witness himself, or in his presence, or so as to enable him to swear to its accuracy62. A register which is not a secondary evidence of the contents of a bond may be referred to by a witness for the purpose of refreshing his memory.63 61 See also Abdul Satar v. Emperor, ILR 49 Cal 573. 62 STROKES, Vol. II, p. 932, f.n.3. 63 Taruck Nath Mullick v. Jeamat Nosya, (1879) 5 Cal 353.

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Ratanlal & Dhirajlal: Law of Evidence, Updated 23rd Edition/THE INDIAN EVIDENCE ACT (ACT 1 OF 1872)/PART III PRODUCTION AND EFFECT OF EVIDENCE/CHAPTER X OF THE EXAMINATION OF WITNESSES/S. 160.

CHAPTER X OF THE EXAMINATION OF WITNESSES S. 160. Testimony to facts stated in document mentioned in Section 159. A witness may also testify to facts mentioned in any such document as is mentioned in Section 159, although he has no specific recollection of the facts themselves, if he is sure that the facts were correctly recorded in the document. ILLUSTRATION A book-keeper may testify to facts recorded by him in books regularly kept in the course of business, if he knows that the books were correctly kept, although he has forgotten the particular transactions entered. 1. PRINCIPLE AND SCOPE

The principle of Section 159 is carried a step further in Section 160. A witness may refresh his memory by a document even though he has no specific recollection of the facts themselves; but he must be sure that the facts were correctly recorded in the document. MARKBY ON EVIDENCE (p. 111) observes: "A, a grocer, sues B for the price of goods sold sometime previously, in small quantities, on a great many different occasions, in fact, on an ordinary running account. The shop-man is called, who says that, though he knows B to be a customer, he has no recollection of the particular transactions, but they are all contained in a book which he holds in his hand. The book is not admissible in evidence, but if the conditions as to the writing and so forth of the entries in the book as stated in Section 159, be satisfied, then under Section 160, the witness may look at the book and if he is prepared to state upon oath that the entries are correct, he may read them out of the book." "It is not essential that the witness has any independent recollection of the facts recorded in the document used to "refresh" memory."64 (PHIPSON ON EVIDENCE, 15th Edn. (2000), page 272 (para 11-52)). That a document may be used as the refresher of memory it is by no means necessary that the witness, after having seen it, should have an independent recollection of the facts mentioned therein or connected therewith. It will suffice if he remembers that he has seen the paper before, and that, when he saw it, he knew its contents to be correct, or even if, entirely forgetting the circumstances themselves, and the fact of his having seen the paper, he can still, in consequence of recognising his signature or writing upon it, vouch for the accuracy of the memorandum, or swear to the particular fact in question.65 The Supreme Court, however held that the witness need not, in so many words state specifically that he has no specific recollection of the facts or that he is sure that the facts were correctly recorded; it would be sufficient if it appears from his evidence that the conditions prescribed by Section 160 are fulfilled.66

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A witness testifying to large number of transactions contained in account books or in other documents can be permitted to testify by referring to them.67 The Supreme Court repelling the contention that it would be an abuse of the provisions of Section 159, if the approver was allowed to refresh his memory by referring exclusively to the account books and various documents, observed: "In our opinion, where the witness has to depose to a large number of transactions, and those transactions are referred to or mentioned either in the account books or in other documents, there is nothing wrong in allowing this witness to refer to the account books and the documents, while answering the questions put to him in his examination. He cannot be expected to remember every transaction in its details, and Section 160 specifically permits a witness to testify the facts mentioned in the documents referred to in Section 159 although he has no recollection of the facts themselves, if he is sure that the fats were correctly recorded in the documents." Having no specific recollection of the facts he can only testify regarding the contents of the document before him and explain that he recorded correctly what the deponent said at the time. 68 A witness may refresh his memory from a writing made by another person and inspected and signed by him, at the close of the day on which it was made, when it brings to his mind neither any recollection of the facts mentioned therein nor of the writing itself but when it nevertheless enables him to testify to a particular fact from the conviction of his mind on seeing the writing which he knows to be genuine. 69 If the witness had not correctly recorded the words used by the speaker but only his impression, then the notes made by him would be inadmissible to prove the words used. 70 The notes of a speech taken at the time by a Police Officer should be proved in the following way: The Police Officer should describe his attendance at the place where the speech was made by the accused and the making of the relevant speech and give a description of its nature so as to identify his presence there and his attention to what was going on. After that it is quite enough if he says: "I wrote down that speech and this is what I took down." 71 If the police officer had not refreshed his memory under Section 159 from those notes and did not testify orally as to the speech then it would not be admissible in evidence.72 When the transcribed notes of the police were given to the adverse party, it was held that the notes cannot be said to be inadmissible merely because they were in shorthand which the adverse party cannot decipher and they can be made use of under Section 160. 73 The Supreme Court observed: "though these reports had not been used for the purpose of refreshing the memory of any witness under Section 159, they were used under the Section 160 of the Act . It might be implied that the witnesses had no specific recollection of the facts. The witnesses being in a position to correctly record the facts in the document, both the conditions required by Section 160 had been complied with, though the report was strictly speaking not substantive evidence as such; and the document could only be used as a part of the oral evidence sanctified by the oath." 74 In HALSBURY 4th Ed., Vol. 17, Para: 274, Page: 191 it is stated: "The document need not have been made by the witness personally, but if it was not made by him it must have been checked by him while the facts were fresh in his memory.75 Documents may be used by a witness to refresh his memory even if they would not be admissible in evidence if tendered as such.76 Documents may be read over to a witness who has become blind to refresh his memory.77 For cases in which the delay in making the document was held to be too long. 78 64 See R. v. Bryant & Dickson, (1931) Cr App R 146, 150; Maugham v. Hubbard, (1828) 8 B & C 14; R. v. Guinea, (1841) Ir Cir Rep 167; R. v. St. Martin's, (1834) 2 A & E 210; Topham v. McGregor, (1844) 1 C & K 320. 65 TAYLOR, 12th Edn., S. 1412, pp. 896-897. 66 Kanti Prasad v. Purushottam Das, AIR 1969 SC 851 : (1969) 3 SCR 400. See also Krishnama v. R., AIR 1931 Mad 430; Pratap Singh v. R., AIR 1926 Lah 310; Dharma v. State, AIR 1966 Raj 74. 67 State of Andhra Pradesh v. Ganeswara Rao, AIR 1963 SC 1850. 68 Partap Singh v. Crown, (1925) 7 Lah 91 : AIR 1926 Lah 310.

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69 Abdul Salim v. Emperor, (1921) 49 Cal 573. 70 Per WALLIS J., in Mylapore Kirishnasami v. Emperor, (1909) 32 Mad 384, 395. 71 Public Prosecutor v. Venkatarama Naidu, ILR (1944) Mad 113 : AIR 1943 Mad 542. 72 Omprakash v. Emperor, AIR 1930 Lah 867; Emperor v. Balaram Das, AIR 1922 Cal 382. 73 Lakshminarayan v. Returning Officer, AIR 1974 SC 66, 80. 74 Kantiprasad v. Purushotham Das, AIR 1969 SC 851 approving Public Prosecutor v. Venkatarama Naidu, AIR 1943 Mad 542. 75 Rambert v. Cohen, (1802) 4 Esp 213 (receipt which witness saw given money was paid); Burrough v. Martin, (1809) 2 Camp 112 (log book examined by witness from time to time shortly after events in it were recorded). See also Anderson v. Whalley, (1852) 3 C&K 54; Burton v. Plummer, (1834) 2 A&E 341 (entries copies daily from waste book to ledger and checked by the witness); Lord Bolton v. Tomlin, (1836) 5 A&E 856 (document assented to in witness's presence); Smith v. Morgan, (1839) 2 Mood & R 257 (deposition signed by witness after examination by bankruptcy commissioner), following Vaughan v. Martin, (1796) 1 Esp 439. See also Wood v. Cooper, (1845) 1 C&K 645; R v. Mullins, (1848) 32 Cox 526 (reports dictated by witness and afterwards read over and signed by him); Dyer v. Best, (1866) LR 1 Exch 152 (witness who had read in newspaper shortly afterwards of event at which he had been present allowed to refresh his memory from newspaper as to date of event); Niscox v. Batchelor, (1867) 15 LT 543; R. v. Langton, (1877) 2 QBD 296 (time sheet used every week by witness in paying wages); R. v. Dexter, (1899) 19 Cox CC 360 (transcript of shorthand note made by clerk and afterwards read over to witness); R. v. Bass, (1953) 1 QB 680 : (1953) 1 All ER 1964, CCA (police notes of interview made after interview); R. v. Mills, (1962) 3 All ER 298. (1962) 1 WLR 1152, CCA (notes made by police officer from tape recording of conversation which the officer heard); and B. v. B., (1962) Times, 29th May. 76 Jacob v. Lindsay, (1801) 1 East 460 (unstamped receipt); Catt v. Howard, (1820) 3 Stark 3; Maugham v. Hubbard, (1828) 8 B&C 14; Lord Bolton v. Tomlin, (1836) 5 A&E 856 (invalid lease); Birchall v. Bullough, (1896) 1 QB 325 (unstamped document). 77 Catt v. Howard, (1820) 3 Stark 3. It is uncertain whether this would be so if the document is not proved to have been made or checked by the witness while the facts were fresh in his memory. 78 See Anon(1753) 3 Term Rep 752; Doe d Church and Phillips v. Perkins, (1790) 3 Term Rep 749 at 752; Jones v. Stroud, (1825) 2 C&P 196 (six months too long); Steinkeller v. Newton, (1838) 9 C&P 313.

2. DISTINCTION BETWEEN Section 159 AND 160 It was held the M.P. High Court that the witness refreshes his memory by looking into the document under Section 159 and gives evidence in the ordinary way; under Section 160 the memory of the witness is not refreshed with the help of the document, but the document itself could be tendered and the witness testifies to the facts mentioned therein if he has no specific recollection of facts and if he is sure that the facts were correctly recorded in the document. Regarding the notes of speech taken by witness at the meeting, if he admits that the notes contain his impression of the speech delivered the notes are inadmissible to prove the words used and cannot be used as such. 79 Where a witness merely refreshed his memory by looking into a certified copy of a document, and spoke to the various details of the dates etc., such procedure was not hit by Section 159. If that document was insisted to be tendered in evidence then the conditions of Section 160 have to be complied with, then only that document can acquire some evidentiary value. 80 See also commentary under Section 159. 79 Manmohan Singh v. Banwarilal, AIR 1964 MP 137 relying on Jagan Nath v. Emperor, AIR 1932 Lah 7; Sodhi Pindi Das v. Emperor, AIR 1938 Lah 629; Mylapore Krishnasami v. Emperor, AIR 32 Mad 384. 80 Ashwini Kumar v. Union Territory of Tripura, 1969 Tri 26.

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Whether the expression "a witness may also testify to facts mentioned in any such document as is mentioned in Section 159" is wide enough to permit the witness to depose to a fact by referring to a copy of the original, is a question open to some argument. In PHIPSON ON EVIDENCE 15th Ed. (2000), Para 11-47, Pages 269-270 it is observed: "As to the use of copies of the original writing, the result of the cases seems to be as follows : 6a)  Where the copy was made or verified by the witness while the facts were fresh in his recollection, it may be used, on the footing of a duplicate or a quasi-original. Thus a sale was allowed to be proved by a clerk who refreshed his memory from a ledger, copied under his supervision from a waste-book kept by himself 81 ; and a surveyor has been allowed to refer to a printed copy of a written report made by him to his employers, which report was substantially but not literally transcribed from rough notes taken by him at the time.82 A police officer was allowed in a trial in 1975 to refer to a statement made for committal proceedings from detailed notes kept during observations in 1972; the defendant had absconded and the police officer's notebook had been lost.83 7b)  Where the original is in existence, and the witness has no recollection of the facts otherwise than from it, a copy may not be used, and the original must be used. 84 6c)  Where the original has been lost or destroyed, a copy proved to be correct either by the witness or some third person may be used. Thus a journalist has been allowed to refresh his memory from a copy of the paper 14 years old, although he had no recollection of the facts, proof being given by the editor that the manuscript was lost, and that the paper as a copy of it, and proof being given by the witness, that he had no doubt the facts stated therein were true.85 5d)  Where the copy is either not proved to be correct,86 or consists of an imperfect extract made by the witness,87 or has been revised and transcribed with the help of the solicitor to the case,88 it cannot be used to refresh memory, whether the original is in existence or not." Under Section 159 reference to a copy is permissible only with the permission of the Court. Section 160 says nothing as to such permission; but since Section 160 refers to Section 159, it follows such permission is required to enable the witness to refer to the copy. 81 Burton v. Plummer, (1834) 2 A & E 341. 82 Horne v. MacKenzie, (1839) 6 C & F 628; contra, Murray v. Mahon, (1884) 18 Ir TLR 8. 83 R. v. Cheng, (1976) 63 Cr App R 20 CA. In Att.-Gen.'s Reference No. 3 of 1979,(1979) 69 Cr App R 411, it was held that a police officer who took jottings during the course of an interview and within a short time made a full note in his notebook incorporating and expanding the jottings should have been permitted to refresh his memory from the notebook. Such a course may fall foul of the provisions of Code of Practice C under the Police and Criminal Evidence Act 1984: R. v. Chisnell, (1992) Crim LR 507 (where the Court of Appeal upheld the exercise of discretion to permit the use of a statement made from notes which had been lost). 84 Doe v. Perkins, (1790) 3 TR 749; Tanner v. Taylor, (1756) 3 TR 754; R. v. St. Martin 's,(1834) 2 A & E 210; R. v. Harvey, (1869) 11 Cox 546. 85 Topham v. McGregor, (1844) 1 C & K 320; Burton v. Plummer, ante, per PATTESON J.; Talbot v. Cusack, (1864) 17 Ir CLR 213. Contra, Jones v. Stroud, (1825) 2 C & P 196. 86 Alcock v. Royal Exchange Assurance, (1849) 13 QB 292; Talbot v. Cusack, (1864) 17 Ir CLR 213. 87 Doe v. Perkins, (1790) 3 TR 749, explained by PATTESON J. in R. v. St Martin 's,(1834) 2 A & E 210. 88 Anon., cited by Lord KENYON in Doe v. Perkins, (1790) 3 TR 749.

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Ratanlal & Dhirajlal: Law of Evidence, Updated 23rd Edition/THE INDIAN EVIDENCE ACT (ACT 1 OF 1872)/PART III PRODUCTION AND EFFECT OF EVIDENCE/CHAPTER X OF THE EXAMINATION OF WITNESSES/S. 161.

CHAPTER X OF THE EXAMINATION OF WITNESSES S. 161. Right of adverse party as to writing used to refresh memory. Any writing referred to under the provisions of the two last preceding sections must be produced and shown to the adverse party if he requires it; such party may, if he pleases, cross-examine the witness thereupon. 1. PRINCIPLE AND SCOPE

This section states that, whenever a witness is testifying to the documents or any writing, according to the provisions of Section 159 and 160, if the opposite party requires the document, it must be produced for the inspection of the opposite party; this is a right given to the opposite party under this section; if the opposite party wants to cross-examine the witness with reference to those documents, he can do so.

2. RIGHT TO INSPECTION AND CROSS-EXAMINATION BY OPPOSITE PARTY FIELD. J., observed: "The opposite party may look at the writing to see what kind of writing it is, in order to check the use of improper documents; but I doubt whether he is entitled, except for this particular purpose, to question the witness as to other and independent matters contained in the same series of writings."1 It was further held that the opposite party had a right to look into any particular writing either before or at the moment when the witness uses it for refreshing his memory, in order to answer a particular question; but if the opposite party neglects to exercise that right, he cannot continue to retain it through out the whole examination of the witness. It was held that sometimes an inspection of the documents may be necessary to ascertain its true character; it is a check against the use of improper document, when a document is once put into the hands of the opponent, it is hardly possible to devise a method by which his vision may be restricted or confined to those portions which were referred to by the witness for the purpose of refreshing his memory.2 In the case of police diaries, which are privileged documents, the accused is entitled to see that portion only which was referred to for refreshing the memory and no more. 3 The accused would not have a right to call for such diaries or use them, unless they are used by Police Officer to refresh his memory or the court uses them for contradicting such Police Officer. 4 Where a defence witness uses a private notebook for refreshing his memory and deposing, the prosecution can insist on the production of that document for using it in cross-examination. 5 In all cases where documents are used to refresh the memory of a witness, it is usual and reasonable--and if the witness has no independent recollection of the fact, it is necessary--that they should be produced at the trial, and that the opposite counsel should have an opportunity of inspecting them, that, on cross or re-examination, he may have the benefit of the witness's refreshing his

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memory by every part. Neither is the adverse party bound to put in the document as part of his evidence, merely because he has looked at it, or examined the witness respecting such entries as have been previously referred, to, but, if he goes further than this, and asks questions about other parts of the memorandum, it seems that he thereby makes it his own evidence. 6 In HALSBURY 4th Edn., Vol. 17, Para 275, Page 192 it is stated: "Production of the document at the trial:-- Where a witness uses a document in the witness box to refresh his memory, the document may be seen by the opposing party7. If only part of the document is used, then all of the document which is relevant to the facts in issue must be made available to the other party. 8 Thus, documents should not be fastened in such a way that other parts, besides those referred to by the witness, cannot be read. 9 Where a witness has used a document to refresh his memory before going into the witness box, it should be produced if he has no independent recollection of the facts, and it is customary, though not necessary, to produce it in all cases in order to make it available to the other party. 10 However, it is not customary to produce proof of evidence which a witness has made on a previous occasion and from which he refreshes his memory before going into the witness box. The other party may not see the document at all where the witness is unable to refresh his memory even with its assistance, or where it is used only for the purpose of enabling a witness to identify handwriting11, except for the purposes of examination as to the handwriting. 12 1 In re Jhuboo Mahton, (1882) 8 Cal 739. 2 R. v. Mannu , ILR 19 All 890 (FB). 3 Hafiz Mohammad Sani v. Emperor, AIR 1931 Pat 150; Subhash Chandra v. Union of India, 1988 Crl LJ 1077. 4 Gurcharan Singh v. State, (1984) 2 Del 627 : 1985 Cr LJ 56(NOC) (Del) . 5 Republic of India v. G.A.N. Rajan, AIR 1967 Ori 115; See also, Hardy's trial, 24 How ST 824. 6 TAYLOR, 12th Edn., S. 1413, p. 897. 7 See Senat v. Senat, (1965) P, 172, (1965) 2 All ER 505. 8 Loyd v. Freshfield and Kaye, (1826) 2 C&P 325. 9 Betts v. Betts and Broadrick, (1917) 33 TLR 200. 10 Sinclair v. Stevenson, (1824) 1 C&P 582; Howard v. Canfield, (1836) 5 Dowl 417; Deputy v. Truman, (1843) 2 Y&C Ch Cas 341; Beech v. Jones, (1848) 5 CB 696. 11 Sinclair v. Stevenson, (1824) 1 C&P 582; Russell v. Rider, (1834) 6 C&P 416. 12 Holland v. Reeves, (1835) 7 C&P 36; R v. Duncombe, (1838) 8 C&P 369; Peck v. Peck, (1870) 21 LT 670.

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Ratanlal & Dhirajlal: Law of Evidence, Updated 23rd Edition/THE INDIAN EVIDENCE ACT (ACT 1 OF 1872)/PART III PRODUCTION AND EFFECT OF EVIDENCE/CHAPTER X OF THE EXAMINATION OF WITNESSES/S. 162.

CHAPTER X OF THE EXAMINATION OF WITNESSES S. 162. Production of documents. A witness summoned to produce a document shall, if it is in his possession or power, bring it to Court, notwithstanding any objection which there may be to its production or to its admissibility. The validity of any such objection shall be decided on by the Court. The Court, if it sees fit, may inspect the document, unless it refers to matters of State, or take other evidence to enable it to determine on its admissibility. Translation of documents. If for such purpose it is necessary to cause any document to be translated, the Court may, if it thinks fit, direct translator to keep the contents secret, unless the document is to be given in evidence: and, if the interpreter disobeys such direction, he shall be held to have committed an offence under Section 166 of the Indian Penal Code (XLV of 1860). 1. PRINCIPLE AND SCOPE

This section deals with the production of documents when summoned by a court. It is obligatory on the part of the person to produce when summoned by the court, the document which is in his possession and power notwithstanding any objection he may have with regard to its production or admissibility as the word "shall" is used in the section. While producing the documents he can raise his objection for its production or admissibility. When an objection is raised, the court shall decide about the validity of the objection. The second paragraph of the section provides that when a document, in respect of which an objection to production or admissibility is raised, refers to matters of State, the court has no power to inspect the document. With regard to other documents in respect of which privilege is claimed, the Court, if it thinks fit, may inspect the documents. The principle underlying in this section is similar to the rule of English law, namely when a witness is served with a summons to produce documents (Subpoena Duces Tecum), he is bound to attend the court with the document required to be produced. If he is having any objection, the court shall decide the validity of such objection.13 The jurisdiction of the court to decide the validity of the objections covers not only the objections raised under Section 123 and 124, but also other objections. 14An objection to the production or admissibility of evidence specified in Section 162 of the Evidence Act, relates to all claims of privilege provided by the relevant sections of Chapter IX of part III of the Act . Section 123 is only one of such privileges, so the jurisdiction is given to the court to decide the validity not only of the objection raised under Section 123 but of all other objections as well. 15 When a witness is summoned to produce a document which is in his possession or power, he must bring it to court, notwithstanding any objection that he may have with regard to its production or admissibility. Under the provisions of O. XVI, R. 6 of the Civil Procedure Code, a person may be

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summoned to produce a document without being summoned to give evidence. He may either attend the court personally or may depute another to produce it. In neither case is he liable to be cross-examined (S. 139). If the document be in his possession or power, he is bound under this section, to bring the document with him to Court notwithstanding any objection he may have to its production or admissibility. Having brought it to court, he is entitled to raise his objection to its production or admissibility. The Court has then to decide the validity of any such objection. For the purpose of deciding on the validity of the reason that may be offered for withholding them, the court may receive evidence,16 and in so doing it is entitled to inspect the document. If the document in question happens to be in a language not known to the Presiding Officer, he may get it translated, and call upon the translator to keep its contents secret (vide paragraph 3). The court has always had the power to inquire into the objections raised for the disclosure of the documents and then decide whether or not it should call for the documents. 17 It was at one time held that the jurisdiction of the Court is confined to the narrow limits provided by the second clause of Section 162 namely, it is open to court to take evidence to decide the character of the documents but it cannot inspect and peruse the document. 18 The statement that the court cannot inspect and peruse the document is no longer good law in view of the decision in AIR 1982 SC 149. (See discussion infra under the head 'whether the court has right to inspect the document when privilege is claimed in public interest.) A person summoned under Section 162, Evidence Act to produce a document is bound to bring it to the court or to send it through another, and a claim for privilege in respect of it can be made at the time of production of the document which will be determined by the court under Section 162, Evidence Act .19 Ordinarily a document is bound to be produced when summoned by the Court, unless it relates to the affairs of the State. It is the supreme duty of the court to protect the privilege when it exists, but in order to determine the validity of the objection, the court has power to inspect in the appropriate cases.20 13 Orient Papers Mills v. Union of India, AIR 1979 Cal 114. See also People's Union for Civil Liberties v. Union of India, AIR 2004 SC 1442 (paras 72 and 73) : (2004) 2 SCC 476. 14 Orient Papers Mills v. Union of India, AIR 1979 Cal 114. 15 Orient Papers Mills v. Union of India, AIR 1979 Cal 114. 16 Venkatachella Chettiar v. Sampathu Chettiar, (1908) 32 Mad 62, 64. 17 Robinson v. State of South Australia, AIR 1932 PC 254; Conway v. Rinmer, (1968) 1 All ER 874(HC) ; State of Punjab v. Sodhi Sukhdev Singh, AIR 1961 SC 493; S.P. Gupta v. Union of India, AIR 1982 SC 149. 18 State of A.P. v. Ramu Naidu, (1964) 2 An LT 251. 19 In Re Mantu Bhai Mehta,AIR 1945 Bom 122; Bhal Chandra v. Chanbasappa, AIR 1939 Bom 237; Harayana Swamy v. State, AIR 1953 Mad 228; Public Prosecutor v. M.S. Menoki, AIR 1939 Mad 914; Gangaram v. Habibulla, ILR 58 All 364; Chandu Bhai v. State, AIR 1962 Guj 290. 20 Iqbal Ahmad v. State, AIR 1954 Bhopal 9; Tilak v. State, AIR 1959 All 543.

2. WHETHER THE COURT HAS RIGHT TO INSPECT THE DOCUMENT WHEN PRIVILEGE IS CLAIMED ON GROUND OF PUBLIC INTEREST In regard to the question whether the court can inspect the document there is divergence of opinion.

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According to the first view where an officer is summoned to produce an official document he is bound to produce it in court. The officer claiming privilege for a document, that he is summoned to produce, must appear and produce the document in court and must satisfy the court that his claim is wellfounded. It is for the court to decide whether the claim should be allowed or not. But once the court holds that the document is one with regard to which privilege can be claimed, in other words, that it is a communication made to a public officer in official confidence or that it is an unpublished official record relating to affairs of State which it would not be in the public interest to disclose, the question whether privilege should be claimed for it or not, is entirely within the discretion of the officer-in-charge of the document, The court for the purpose of deciding whether the claim to privilege is well-founded or not is not entitled to look at the document. It must decide the question of the validity of the objection without looking at the document.21 The view was reiterated in State of Punjab v. Sodhi Sukh Deo Singh, 22It was held that where a privilege is claimed at the Stage of inspection and the Court is required to adjudicate upon its validity the relevant provisions of the Evidence Act under which the privilege is claimed, as well as the provisions of Section 162 which deal with the manner in which the said privilege has to be considered are equally applicable; if the court is precluded from inspecting the privileged document under the second clause of Section 162,the said prohibition would apply as much to a privilege claimed by the State through its witness at the trial as to a privilege similarly claimed by it at the stage of inspection. The provisions of Order 11, Rule 19(2), C.P.C. must therefore, be read subject to Section 162 of the Evidence Act . The second view is that the court is competent to hold a preliminary enquiry and determine the validity of the objection to the production and this necessarily involves an enquiry into the question as to whether the document relates to the affairs of the State. 23 It is the duty of the court to protect the privilege when it exists, but in order to determine the validity of the objection, the court has got the power to inspect the document and then decide.24 It was held by the Supreme Court that the court has residual power to look into the document and decide whether the disclosure of the documents is in the interest of the public, and that the statement of the head of the department that the disclosure would injure public interest is not final. 25 The House of Lords held that the documents which were opposed from disclosure, should be produced for inspection as it would not be possible to decide whether the balance of public interest lay for or against disclosure.26 21 In Re Mantu Bhai Mehata,(1943) 46 Bom LR 802; Dinabai Petti v. Dominion of India, (1950) 53 Bom LR 229. 22 AIR 1961 SC 493. 23 Amarchand v. Union of India, AIR 1964 SC 1658; State of A.P. v. Ramu Naidu, (1962) 2 An LT 251; State of Maharashtra v. O.V. Pawer, 1986 Cr LJ 1467(Bom) (DB); Subba Rao v. Brahmananda Reddy, AIR 1967 AP 155; Choudary v. Chandkakati, 1060 Assam 210; State of U.P. v. Raj Narain, AIR 1975 SC 865; S.P. Gupta v. Union of India, AIR 1982 SC 149 : 1981 Supp SCC 87; see commentary 123 and 124 of this Act. 24 Om Prakasash Gupta v. State, (1967) 1 All 239. 25 S.P. Gupta v. State, AIR 1982 SC 149, para 1184 : 1981 Supp SCC 87 overruling State of Punjab v. Sodhi Sukh Deo Singh, AIR 1961 SC 493. 26 Burmah Oil Co. v. Bank of England, 1980 AC 1090. See also Lonrho Ltd. v. Shell Petrolium Co. Ltd., (1980) 1 WLR 627.

3. ADMISSIBILITY The word "Admissibility" involves all sorts of objections to production relevancy, and admissibility or even claiming any privilege in respect of the document. 27 Where a copy of a document in respect of which privilege is claimed by the defendant, is filed by the plaintiff, the court, without deciding the claim of privilege cannot call upon the defendant to admit or deny the same.28

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When the question of the conduct of a public servant is in issue, it was held that privilege cannot be claimed by the State to screen such conduct from judicial scrutiny. 29 The photocopies of the income tax returns which depicted information which was admitted to be not depicted in the original income tax returns, were held to inadmissible. 30 27 Mehta v. Nanevathi, (1983) 2 Bom Court R 45. 28 Union of India v. Rajkumar Gujral, AIR 1967 Punj 387. 29 Niranjan Das Sehgal v. State of Punjab, AIR 1968 Punj 255. 30 Janki Vashdeo Bhojwani v. Indusind Bank Ltd., (2005) 2 SCC 217, 224 (para 23) : AIR 2005 SC 439.

4. WRIT OF CERTIORARI AND PRIVILEGE In an application for certiorari under Art. 226 of the Constitution, when notice to produce the record was issued by the Court, the respondent without producing records filed a counter affidavit and produced some document for evidence on behalf of the State. It was held that the State should have produced the records forming the subject-matter of the writ of certiorari; the Government cannot claim absolute privilege and withhold the production.31 When the court directs the production of a document subject to any objection, it might be taken that such a direction will not be interfered with in revision by the High Court. In Criminal cases, the protection under Section 126 afforded to communications by a client to lawyers cannot be availed of against an order to produce the document, the document must be produced, and then under this section it will be for the court, after inspection of the document, if it deems fit, to consider and decide any objections regarding its production or admissibility. 32 31 P. Joseph John v. State, AIR 1953 Tra/Co 363 (FB); Ramanana v. State of A.P., AIR 1971 AP 196. 32 Gangaram v. Habib Ullah, (1935) 58 All 364.

5. INSTANCES OF PRIVILEGED AND NOT PRIVILEGED DOCUMENTS When a clerk of the sales tax department was summoned to produce certain documents, the Sales Tax Officer claimed privilege. It was held that, in view of the provisions of Section 25(1) of the Sales Tax Act, the Officer was justified in claiming the privilege. 33 In regard to the transcript of public speeches, it was held that the fact, that the record was made by a Police Officer, did not render it privileged documents. 34 Statements made and documents produced by assessees before the Income-tax Officer for the purpose of showing the income of such assessees do not refer to matters of State.35 Report of a conciliator, regarding his findings in an industrial dispute, was held not a privileged document or confidential document. 36 This section is applicable to both official and private documents. 37 33 Pratap v. State, (1967) 69 Punj LR 222. 34 Rama Srinivasan v. Shanmugan. 35 Venkata Chella Chettiar v. Sampathu Chettiar, (1908) 32 Mad 62; Jadobram Dey v. Bulloram Dey, (1899) 26 Cal 281. 36 Haralal Sadasheorao Bande v. State Industrial Court, Nagpur, AIR 1967 Bom. 174. 37 In Re Mantu Bhai Mehta, AIR 1945 Bom, 122; Joseph John v. State, AIR 1953 Tra/Co. 363 (FB); Balchandra Dattatraya v. Chanbasappa Mallappa, AIR 1939 Bom 237.

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Ratanlal & Dhirajlal: Law of Evidence, Updated 23rd Edition/THE INDIAN EVIDENCE ACT (ACT 1 OF 1872)/PART III PRODUCTION AND EFFECT OF EVIDENCE/CHAPTER X OF THE EXAMINATION OF WITNESSES/S. 163.

CHAPTER X OF THE EXAMINATION OF WITNESSES S. 163. Giving, as evidence, of document called for and produced on notice. When a party calls for a document which he has given the other party notice to produce, and such document is produced and inspected by the party calling for its production, he is bound to give it as evidence if the party producing it requires him to do so. 1. PRINCIPLE AND SCOPE

When a party issues notice to the other party to produce any document, the other party has to produce the same if the document is in his possession or power. When it is produced by the opposite party and it is inspected by the party calling for its production, he is bound to give it as evidence if the opposite party requires him to do so.38 TAYLOR ON EVIDENCE (12th Ed. Section 1817, p. 1126) observes: "The production of papers, upon notice does not make them evidence in the cause unless the party calling for them inspects them, so as to become acquainted with their contents; in which case he is obliged to use them as his evidence, at least if they be in any way material to the issue. The reason for this rule is, that it would give an unconscionable advantage to a party to enable him to pry into the affairs of his adversary, without at the same time subjecting him to the risk of making whatever he inspects evidence for both parties." This section is applicable, and the party is bound to give the opponents the document as evidence in the case, if three conditions are fulfilled. The first condition is that the document should be required by the party to be produced in evidence. The second condition is that it should be inspected by the party who had given the notice. The third condition is that the party producing the document should require the party calling for it to put in evidence. Where only the first of these conditions has been satisfied, but the others have not been satisfied, the document cannot be treated as evidence of the party. 39 When the three conditions are fulfilled, no further proof is necessary before its admission in evidence.40 However, it was held that this section does not render proof of the document which is to be exhibited, unnecessary or alter the normal incidence of the burden of proof as contained in other sections of the document.41 The Privy Council dealt with a case where the defendant wanted to prove her defence from the account books of the plaintiff and so gave notice for production of the account books. After inspection only certain extracts were taken from those books as defence evidence leaving the rest. The Privy Council observed: "It would be a monstrous thing if the party sued were allowed to call for the accounts of the plaintiff, and extract from them just such items as prove the matters of defence on her part and were not to allow those items which make in favour of the plaintiff. The High Court held that the books must be admitted in toto. Their Lordships think that the High Court was entirely right." 42 Relying on the last observation of the Privy Council, it has been held that when the party inspects the documents, the entire document should be taken in evidence. 43 Records of statements made not on oath in the course of a departmental inquiry by Government, are not public documents. But, when the

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defence had called for their production and they were, thereupon, produced and inspected and used for the cross-examination of the prosecution witnesses, it was held that the Crown could insist on the entire statements being put in under this section.44 It was held that in the Presidency Town of Calcutta, the accused has no right for the copies of the statements of witnesses made to police during the investigation, which have been reduced to writing. But, the accused can call for the document under Section 163 which is subject to the remaining provisions of the Evidence Act . Therefore, only such portion of the record of the previous statement as can be used under Section 154 or 157 of the Evidence Act will be relevant. 45 The party inspecting the document is bound to give it as evidence only if the party producing the same requires him to do so.46 Objection to the mode of proof must be taken before the document is exhibited and not for the first time in the appellate court.47 The High Court of Madras raised, but did not decide, the question whether S. 163 was applicable to documents produced under the discovery procedure enacted in this rule or whether it only applied to documents produced after the trial had begun.48But the Allahabad High Court has held that the notice to produce documents mentioned in Section 163 of the Evidence Act clearly referred to a notice to produce as mentioned in Order XI, which may be given by a party privately to the other party concerned, and that the applicability of Section 163 of the Evidence Act was not affected by the mere fact that due to the non-production by the other party, an order to produce the documents had to be passed by the Court.49 This section is applicable to both Civil and Criminal proceedings. 50 In criminal matters, production of a document at the instance of one party or the other cannot bind the party that got it on the record, unless it is proved in accordance with the provisions of law. Mere production of a document, therefore, is not sufficient to treat it as evidence unless it is duly proved. 51 38 Union of India v. Firm Vishudh Ghee Vyapar Mandal, AIR 1953 All 689; Mahomed v. Abdul, (1903) 5 Bom LR 380. 39 Liladhar Ratanlal v. Holkarmal Sohanlal, AIR 1959 Bom 528. 40 Govt. of Bengal v. Shanthi Ram Mondal, 1930 Cal 370; Kishan Ghule v. Puransa, AIR 1928 Nag 119. 41 Rajgopala Iyengar v. Ramanuja Iyengar, 1923 Mad WN 292 : AIR 1923 Mad 607. 42 Rajeshwari Kuar v. Rai Bal Krishan , ILR 9 All 713 PC. 43 Mahammad Khan v. Abdul Rehman, (1903) 5 Bom LR 380; Kisan Ghule v. Puransa, AIR 1928 Nag 119; Govt. of Bengal v. Shanti Ram Mandal, AIR 1930 Cal 370; Emperor v. Makhan Lal, AIR 1940 Cal 167. 44 Government of Bengal v. Shantiram Mandal, (1930) 58 Cal 96 : AIR 1930 Cal 370. 45 Natabar Jana v. State, AIR 1955 Cal 138. 46 Shri Narain v. Chunnilal, AIR 1957 Raj 159; Badri Prasad v. Shantilal Seth, AIR 1941 Lah 228; Union of India v. Firm Vishudh Ghee Vyapar Mandal, AIR 1953 All 689; Calvert v. Flower, (1836) 7 C&P 380; Stroud v. Stroud, (1963) 1 WLR 1080. 47 State of Maharashtra v. Bankat Lal Murlidhar Bhatt, ILR 1977 Bom 312. 48 Rajgopal Iyengar v. Ramanuja Ayengar, AIR 1923 Mad 607. 49 Union of India v. Firm Vishudh Ghee Vyapar Mandal, AIR 1953 All 689. 50 Govt. of Bengal v. Santhi Ram Mandal, AIR 1930 Cal 370; R. v. Makhan, AIR 1940 Cal 167. 51 State of Rajasthan v. Babulal, AIR 1965 Raj 90.

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Ratanlal & Dhirajlal: Law of Evidence, Updated 23rd Edition/THE INDIAN EVIDENCE ACT (ACT 1 OF 1872)/PART III PRODUCTION AND EFFECT OF EVIDENCE/CHAPTER X OF THE EXAMINATION OF WITNESSES/S. 164.

CHAPTER X OF THE EXAMINATION OF WITNESSES S. 164. Using, as evidence of document production of which was refused on notice. When a party refuses to produce a document which he has notice to produce, he cannot afterwards use the document as evidence without the consent of the other party or the order of the Court. ILLUSTRATION A sues B on an agreement and gives B notice to produce it. At the trial A calls for the document and B refuses to produce it. A gives secondary Evidence of its contents. B seeks to produce the document itself to contradict the secondary evidence given by A, or in order to show that the agreement is not stamped. He cannot do so. 1. PRINCIPLE AND SCOPE

If a party having a document in his possession refuses to produce it when called upon at the hearing to do so, he is not at liberty afterwards to give the document in evidence for any purpose without (1) the consent of the other party, or (2) the order of the court. This is meant as a penalty for unfair tactics. The Civil Procedure Code, O. XI, R. 15, makes a similar provision. The illustration under this section makes clear the principle and the object of the section. "The party who refused to produce the writing could not afterwards be at liberty to give it in evidence. 52 WIGMORE ON EVIDENCE (Section 1210, Vol. 3, p. 381) observes: "This section is in one sense a proper penalty for unfair tactics; but the original refusal may also be regarded as a judicial admission, in advance, of the correctness of the first party's evidence to this extent." This section does not contemplate the production of a document for inspection. It contemplates that one party should call upon another in Court to produce a document of which the first party has given the other notice to produce. It does not give him any right, at any stage of the case, to call upon his opponent to produce the document and, after inspecting it, use it or not as he sees fit. It is doubtful if this section applies to criminal proceedings.53 If a party has a document in his possession he will not be permitted to prove its contents in the crossexamination of the witness.54 Where a landlord could not produce the rent deed, when ordered to do so, on the ground that it was not traceable but, later, on finding it, applied for its admission for evidence, it was held that the rent deed could not be disallowed by the Rent Controller on a technical ground; that, in order to resolve the controversy between the parties, and to do full justice the Rent Controller should have allowed the production of the rent deed, and the other side could have been compensated by ordering payment of cost.55 52 Doe v. Hodgson, (1840) 12 A&E 135.

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53 Shyam Das Kapur v. Emperor , ILR (1932 60 Cal 341 : AIR 1933 Cal 65. 54 Sivasubramania v. Theerthapathi, AIR 1933 Mad 451. 55 (1971) 1 Rent LR 58 (Punj).

2. Sections 164 AND 89 OF EVIDENCE ACT SECTION 89 of this Act states that the court shall presume that every document, called for, and not produced after notice to produce, was attested, stamped, and executed in the manner required by law. The presumption under Section 89 is based on the principle that no one shall be allowed to take advantage of his own wrong. Once a presumption is drawn under Section 89, it cannot be easily rebutted by the production of the document at a later stage. Section 164 provides that the party cannot use that document as evidence without the consent of the other party or the order of the court. 56 This section has been held not to apply to criminal cases; 57 but the correctness of this view is doubtful.58 56 Kashibai Mastand v. Vinayaka Ganesh, AIR 1956 Bom 65. 57 Sham Das Kapur v. Emperor, AIR 1933 Cal 65. 58 Emperor v. Makhan Lal, AIR 1940 Cal 167.

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Ratanlal & Dhirajlal: Law of Evidence, Updated 23rd Edition/THE INDIAN EVIDENCE ACT (ACT 1 OF 1872)/PART III PRODUCTION AND EFFECT OF EVIDENCE/CHAPTER X OF THE EXAMINATION OF WITNESSES/S. 165.

CHAPTER X OF THE EXAMINATION OF WITNESSES S. 165. Judge's power to put questions or order production. The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross-examine any witness upon any answer given in reply to any such question: Providedthat the judgment must be based upon facts declared by this Act to be relevant, and duly proved: Provided alsothat this section shall not authorize any Judge to compel any witness to answer any question, or to produce any document which such witness would be entitled to refuse to answer or produce under Sections 121 to 131, both inclusive, if the question were asked or the document were called for by the adverse party; nor shall the Judge ask any question which it would be improper for any other person to ask under Section 148 or 149; nor shall he dispense with primary evidence of any document, except in the cases hereinbefore excepted. 1. PRINCIPLE AND SCOPE

This section is intended to arm the Judge with the most extensive power possible for the purpose of getting at the truth. The effect of this section is that in order to get to the bottom of the matter before it, the Court will be able to look at and enquire into every fact whatever. 59 Each party in a case is interested in setting up his own case and demolishing the one set up by his adversary. There is danger in some cases that the whole truth may not come out before the Court. The Judge, in order to discover, or to obtain proper proof of relevant facts, may exercise very wide powers indeed; but they all pivot upon the ascertainment of relevant facts. He may approach the case from any point of view, and is not tied down to the ruts marked out by the parties. He can ask (1) any question he pleases, (2) in any form, (3) at any time, (4) of any witness, (5) or of the parties, (6) about any fact relevant or irrelevant. No party is entitled to object to any such question or order, or to cross-examine the witness without the leave of the Court. But out of the evidence so brought out, the Judge can only use that which is relevant and duly proved. There are three exceptions to the very wide powers given to the Judge. The witness cannot be compelled to answer (1) any question or to produce any document contrary to Ss. 121 to 131; or (2) any question contrary to S. 148 or 149; and (3) the Judge shall not dispense with primary evidence of any document except as provided before. In civil as well as in criminal proceedings the Legislature has vested ample powers in the courts to exercise this power (Civil Procedure Code, O. X, Rr. 2, 4; O. XVI, R. 14; S. 311,Criminal Procedure Code). SIR JAMES STEPHEN, while presenting the report of the Select Committee, at the time of passing of this enactment ( Indian Evidence Act ) observed; "It is absolutely necessary that the judge should not

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only hear what is put before him by others, but that he should ascertain by his own inquiries how the facts actually stand. In order to do this, it will frequently be necessary for him to go into matters which are not themselves relevant to the matters in issue, but may lead to something that is, and it is in order to arm judges with express authority to do this thatSection 165, which has been so much objected to, has been framed." In his introduction to the Evidence Act (p. 162, 163) SIR JAMES STEPHEN stated "A judge or Magistrate in India frequently has to perform duties which in England would be performed by Police Officers or attorneys. He has to sift out the truth for himself as well as he can, and with little assistance of a professional kind. Section 165 is intended to arm the judge with the most extensive power possible for the purpose of getting at the truth. The effect of this section is that, in order to get to the bottom of the matter before the court, he will be able to look at and enquire into every fact whatever. BEST ON EVIDENCE (8th Ed. Section 86 p. 70) observed: "The Judge has a certain latitude allowed him with respect to the rules of forensic proof. He may ask any question in any form, and at any stage of the cause and to a certain extent even allow parties or their advocates to do so. This, however does not mean that he can receive illegal evidence at pleasure; for if such be left to the jury, a new trial may be granted even though the evidence were extracted by questions put from the Bench, but it is a power necessary to prevent justice being defeated by technicality to secure indicative evidence, and in criminal cases to assist in fixing the amount of punishment, and it should be exercised with discretion....Discretion is a science or understanding to discern between falsity and truth, between wrong and right, between shadow and substances, between equity and colourable glosses and pretences, and not to do according to their wills and private affections." "In a great number of cases--probably, the vast numerical majority--the judge has to conduct the whole trial himself. In all cases he has to represent the interests of the public much more distinctly than he does in England. In many cases he has to get at the truth, or as near to it as he can, by the aid of collateral inquiries, which may incidentally tend to something relevant; and it is most unlikely that he should ever wish to push an inquiry needlessly, or to go into matters not really connected with it. We have accordingly thought it right to arm Judges with a general power to ask any questions, upon any facts of any witness, at any stage of the proceedings irrespective of the rules of evidence binding on the parties and their agents and we have inserted in the bill a distinct declaration that it is the duty of the Judge, especially in criminal cases not merely to listen to the evidence put before him, but to inquire to the utmost into the truth of the matter. We do not think, that the English theories, that the public have no interest in arriving at the truth and that even criminal proceedings ought to be regarded mainly in the light of private questions between the prosecutor and the prisoner, are at all suited to India, if indeed they are the result of any thing better than carelessness and apathy in England. "In India, in an enormous mass of cases, it is absolutely necessary that the Judge should not only hear what is put before him by others, but that he should ascertain by his own inquiries how the facts actually stand. In order to do this, it will frequently be necessary for him to go into matters which are not themselves relevant to the matter in issue, but may lead to something that is, and it is in order to arm Judges with express authority to do this that this has section has been framed. 60 If a criminal Court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording machine by becoming a participant in the trial evincing intelligence, act ive interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves. Courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in relation to proceedings, even if a fair trial is still possible, except at the risk of undermining the fair name and standing of the Judges as impartial and independent adjudicators.61 The relative inactivity of the Judge is a feature of English proceedings going back to the middle ages. Speaking of the medieval trial, Pollock and Maitland said that it often reminds one of a cricket match; "The judges sit in court, not in order that they may discover the truth, but in order that they may answer the question, "How's that?"; this passive habit seems to grow upon them as time goes on. It

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was indeed the original method of criminal trial in all European countries, being the regularisation of the primitive come back, but only in England has it survived essentially in its original form. 62 Section 165 of the Evidence Act confers vast and wide powers on Presiding Officers of Court to elicit all necessary materials by playing an act ive role in the evidence collecting process. They have to monitor the proceedings in aid of justice in a manner that something which is not relevant, is not unnecessarily brought into record. Even if the prosecutor is remiss in some ways, it can control the proceedings effectively so that ultimate objective i.e., truth is arrived at. This becomes more necessary where the Court has reasons to believe that the prosecuting agency or the prosecutor is not acting in the requisite manner. The Court cannot afford to be wishfully or pretend to be blissfully ignorant or oblivious to such serious pitfalls or dereliction of duty on the part of the prosecuting agency. The prosecutor who does not act fairly and facts more like a counsel for the defence is a liability to the fair judicial system, and Courts could not also play into the hands of such prosecuting agency showing indifference or adopting an attitude of total aloofness. 63 The Courts' this inherent power to call for any witness at any stage either suo motu or on the prayer of the party cannot be taken away by omission of O. XVIII, R. 2(4) in the CPC by the Amending Act 46 of 1999. 64 It the Court act s contrary to the role it is expected to play, it will be destruction of the fundamental edifice on which the justice delivery system stands. People for whose benefit the Courts exist shall start doubting the efficacy of the system.65 Where the Court allowed the plaintiff to cross-examine the witnesses on an application moved by him to that effect and on which the defendant endorsed his no objection, the provisions of Sections 165 of Indian Evidence Act were held to be inapplicable.66 59 STEPHEN, 162; Ramachandra Reddy,1957 Andhra 742. 60 Proceedings of the Legislative Council. 61 Zahira Habibulla H. Sheikh v. State of Gujarat, AIR 2004 SC 3114 (para 38) : (2004) 4 SCC 158, relying on Jennison v. Baker, (1972) 1 All ER 997, 1006 : (1972) 2 QB 52 : (1972) 2 WLR 429(CA) . See also Himanshu Singh Sabharwal v. State of M.P., AIR 2008 SC 1943, 1946-47 (para 8) : (2008) 3 SCC 602. 62 PER GLANWILLE WILLIAMS, quoted in Ibrahim Husen v. State, AIR 1969 Goa 68. 63 Zahira Habibulla H. Sheikh v. State of Gujarat, AIR 2004 SC 3114 (para 46). See also Himanshu Singh Sabharwal v. State of M.P., AIR 2008 SC 1943, 1949-50 (para 16) : (2008) 3 SCC 602. 64 Salem Advocate Bar Association v. Union of India, (2005) 6 SCC 344, 368 (para 32) : AIR 2005 SC 3353. 65 Zahira Habibullah Sheikh (5) v. State of Gujarat, (2006) 3 SCC 374, 391 (para 22) : AIR 2006 SC 1367. 66 George Thomas v. Srividya, AIR 2003 Mad 290, 297 (para 28).

2. POWER OF JUDGE TO CALL WITNESS The trial Judge has the power to call a witness not called by either the prosecution or the defence, without their consent, if he considers that that course is necessary in the interests of justice 67 The Court has unrestricted power to recall or to re-examine any witness at any stage before judgment for just decision of the case. Even if the judgment is reserved and while writing judgment the Court finds that any material point is omitted and consideration of which is necessary or the paper is required to be proved, the Court can pass examination or re-examination of the witnesses. 68 Recall and examination of a witness under O. 18, R. 17, CPC read with Section 165 of the Evidence Act is the exclusive power of the Court to be exercised in exceptional circumstances. In the instant case, the petitioner applied for recall of a witness whereas six months time granted for the disposal of the case had expired and sufficient opportunity for cross-examination had already been given, dismissal of the application was held to be proper.69 Where in a suit for declaration of title to property the defended, claiming himself to be the owner, applied for recalling the plaintiff whom he alleged to be a labourer working on his land and receiving

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charges for the same so as to prove the receipts issued by him (the plaintiff), rejection of his application was held to be illegal.70 This section, and Section 540Cr.P.C. (old), which corresponds toSection 311of Cr.P.C. of 1973, empowers the judge to call any witness or to produce any document in the interest of justice.Section 540(old) Cr.P.C. (now 311 Cr. P.C.) andSection 165 Evidence Act, confer a wide discretion on the court to act, as the exigencies of justice required.71 The powers under Section 540,(old) Cr.P.C. though wide enough, must not be exercised to the disadvantage of the accused, particularly after his defence is over. 72 It would be an improper exercise of power of the court under Section 540,(old) Cr.P.C. to do so merely because the evidence on record supported the case of the prosecution and it would not help the accused in any way. Unless there is absolute necessity for doing justice in the case, the power should not be exercised to examine a person as a court witness.73 The power under Section 540,(old) Cr.P.C. is to be exercised to arrive at a just decision, and it does not mean a decision in favour of the accused.74 A liberal interpretation has to be given in favour of the court's powers under this section, and they can be exercised at any time during the proceedings.75 The Supreme Court held that the ban imposed by Section 162,Cr.P.C. in regard to the previous statements of the witnesses made to the police during investigation, does not operate against the powers of the court under Section 165 of Evidence Act . The language ofSection 162,Cr.P.C. though wide, is not explicit or specific enough to extend the prohibition to the use of the wide and special powers of the court to question a witness, expressly and explicitly given by Section 165 of the Act, in order to secure the ends of justice. A narrow and restrictive construction ofSection 162,Cr.P.C. to confine it to the use of statements to the proceedings before the court would reconcile or harmonize the two provisions and also serve the end of justice. 76 Although a statement made by an accused person to a Police Officer on which the defence wished to rely is shut out by Section 162,Criminal Procedure Code a court having a case diary in its possession, at the request of the defending counsel, would be justified in putting a question to a Police Officer to elicit what the accused told him purely in the interest of the accused, within its wide powers under this section.77 A Judge can himself look into previous statements of witnesses recorded in the police diary, even though the defence neither requested him to do so nor applied for copies of such statements and if the interests of justice demand, the Judge may himself under this section, put questions to witnesses to bring out discrepancies of a vital nature between such statements and the evidence of those witnesses in court.78 Under the Criminal Procedure Code, the accused has no right to get copies of the statements of witnesses made to police during investigation, which were reduced to writing and were entered in the police diary; but, the Magistrate can order the granting of such copies under the provisions ofSection 145 read with Section 165 Evidence Act, without making the accused go through the formalities of Section 163 of the Evidence Act, i.e., issuing notice for production, provided the Magistrate feels that it should be granted in the interest of justice.79 Whenever all the facts necessary for a proper determination of the points in issue have not been elicited, inadvertently or otherwise by the Public Prosecutor or the defence counsel, it behoves the judge to exercise his, power under Section 165, and get elucidated what is left obscure or unintelligible.80 The Court cannot cross-examine the prosecution witness beyond the extent of its powers under Section 165, as it would create, a reasonable apprehension that a fair and impartial trial may not be possible. The exercise of the power should be judicious. 81 When the accused is undefended, the only way in which the court may protect the accused in such a situation is to put necessary questions itself to the prosecution witness, on all matters requiring clarification, in exercise of its wide powers under Section 165.82 It is not the province of the Court to examine the witnesses, unless the pleaders on either side have omitted to put some material question or questions, and the Court should, as a general rule, leave the witnesses to the pleaders to be dealt with as laid down in Section 138.83

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The commentaries show clearly that the object of allowing the judge to ask irrelevant questions under this section is to obtain "indicative evidence" which may lead to the discovery of relevant evidence. 84 The judges are not computers. In assessing the value to be attached to oral evidence, they are bound to call into aid their experience of life.85 A reference to this section is irrelevant in respect of judicial precedents and the binding nature of decisions of co-ordinate and superior authority.86 67 R. v. Liddle, (1928) 21 Cr. App Rep 3, CCA; R. v. McMohan, (1923) 24 Cr App Rep 95, CCA. 68 Chhotey Badri Prasad v. State of U.P., 2006 CrLJ 711, 712 (para 8) (All). 69 Y. Shanmugam v . S. Umamaheswaran, AIR 2008 (NOC) 646(Mad) . 70 Satinder Singh v. Sukhdev, AIR 1999 HP 72 (para 8). 71 Jamatraj Kewalji v. State of Maharashtra, AIR 1968 SC 178, following Rex v. Harris, (1927) 2 KB 587; Govind Raghunath v. B.A. Kakade, ILR 1975 Bom 829; State of Sikkim v. Permba Sherpa, 1981 Cr LJ 856(Sikkim) . 72 In re, K.Y.R.S. Mani,AIR 1951 Mad 707; Shreelal Kajaria v. State, AIR (1964) Bom 165; In re Y. Mahadevan,(1964) 2 Mad LJ 587. 73 In re, K.K. Narayanan Namiar,AIR 1942 Mad 223. 74 Kesava Pillai v. Emperor, AIR (1929) Mad 837. 75 In re, Narayanan Nambiar,AIR 1942 Mad 223; State v. Shaikh Mohamad Abdulla, (1964) 2 Cr LJ 88(J&K) ; Ratnakar Das v. State, AIR 1966 Ori 102; Ram Jeet v. State, AIR 1958 All 439. 76 Raghunandan v. State of U.P., AIR 1964 SC 463. 77 Molagan,(1953) Mad 284. 78 Emperor v. Lal Miya, (1943) 1 Cal 543 : AIR 1943 Cal 521. 79 Natabar Jana v. State, AIR 1955 Cal 138; Sunil Kumar Datta v. State of W.B., AIR 1963 Cal 431. 80 Damisetti Subbanna v. State of A.P., 1976 CrLJ 1242 AP; Mukta Kumar Ghosh v. State of W.B., 1975 Cr LJ 838(Cal) ; Subbanna v. State, (1975) 2 An WR 255. 81 State of Mysore v. Hanmantha, AIR 1966 Mys 231. 82 Sessions Judge Nellore v. Ramana Reddy, 1972 CrLJ 1485(AP) . 83 Noor Bux Kazi v. R, (1880) 6 Cal 279, 283. 84 Krishna Ayyar v. Balakrishna Iyyar, (1933) 57 Mad 635. 85 Chaturbhuj Panda v. Collector, Raigarh, AIR 1969 SC 255. 86 Tribhuvan Das v. Ratilal Motilal Patel, AIR 1968 SC 372.

3. ASK ANY QUESTION IN ANY FORM Under the Anglo-Saxon System of Law followed in this country, if the judge is of the opinion that the case has not been properly dealt with, he can put as many questions as he likes, relying on the provisions of Section 165 of the Evidence Act, in order to discover the truth; but, by and large, he should leave it to the parties to examine their witnesses.... The presiding judge has to be careful so as not to identify himself with any party.87 No doubt under Section 165 a court has got power to put any question it pleases in any form at any time to any of the witnesses or the parties about any fact relevant or irrelevant, but that power is to be exercised in order to discover or obtain proper proof of relevant facts. 88 The powers of the Presiding Judge of the trial Court are unbridled. It is the bounden duty of the Judge to take active part in the trial

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to elicit the truth.89A Sub-Inspector of Police supported the prosecution story in his examination-in-chief but in cross-examination he deposed against the prosecution. He was neither re-examined by the prosecutor nor any question was put by the Court under Section 165 of the Evidence Act for seeking clarification and also providing him an opportunity to explain the situation. In such a situation the remark passed by the Magistrate against him was directed to be expunged. 90 The Court while exercising powers under S. 165 of the Act should guard itself against causing prejudice to the defence or to the prosecution. But that is no reason to pre-empt the right of a party to adduce proper and relevant evidence which through any inadvertence one party would have missed or overlooked at an earlier stage.91 It is the duty of prosecution to bring the contradiction on record by confronting the hostile witness with his previous statement made to the police and if the prosecution fails to do so, it is the duty of Court to put such questions as are necessary to ascertain the truth 92 but in the course of judgment, under Section 165 the Court cannot permit the prosecution to re-introduce evidence to cover up obvious lacuna.93Section 165 confers vast and unrestricted powers on the trial Court to put any question he pleases in any form at any time, to any witness or to the parties, about any fact, relevant or irrelevant, in order to discover relevant facts. The use of the word 'any' could only have been inspired by legislative intent to confer unbridled power on the trial Court to use the power whenever it deems necessary to elicit the truth. A trial judge is expected to act ively participate in the trial. If a judge felt that a witness had committed an error or a slip, it is his duty to ascertain whether it was so, for to err is human and the chances of erring may accelerate under stress of nervousness during cross-examination.94 A judge is expected to actively participate in the trial, elicit necessary materials from witnesses at the appropriate context which he feels necessary for reaching the correct conclusion, even during their cross-examination and even when a witness in a bit of confusion. 95 The evidence, which comes on record pursuant to the question put by the Court in exercise of powers under Section 165 of the Evidence Act, is outside the scheme for recording of evidence under Sections 137 and 138 of the Evidence Act. It is a sui generismechanism to be invoked by the Judge in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties about any fact relevant or irrelevant, etc. That part of evidence can neither be described as examination-in-chief, cross-examination or re-examination as such, within the meaning of Sections 137 and 138 of the Evidence Act . The evidence which comes before the Court in the form of questions put by the Court under Section 165 of the Evidence Act, nevertheless in a piece of admissible evidence. Indeed, the adverse party against whom the witness has given evidence pursuant to the Court question is entitled to cross-examine on matter referred to in the answer given in reply to any such question. Thus, understood, it cannot be contended that the version given by the prosecutix pursuant to the Court questions asked in exercise of power under Section 165 of the Evidence Act, in the instant case, would amount to improvisation when juxta posed with the evidence in the examination-in-chief of that witness. Therefore, the evidence so given pursuant to Court question will have to be tested on its own merits. 96 87 Ibrahim Husen v. State, AIR 1969 Gao 68; See also Mohinder Singh v. State, (1970) 2 Del 854. 88 Nepal Chandra Roy v. Netai Chandra Das, (1971) 3 SCC 303. 89 Popathal Jethabhai Shah v. State of Maharashtra, 2007 CrLJ 605(NOC) (Bom) : 2007 (4) AIR Bom R 67. 90 Jakaram Jummani v. State of M.P., 2008 CrLJ 19(NOC) (MP) . 91 Suja P. Chacko v. State of Kerala, 1994 Cr LJ NOC 292(Ker) . 92 State of Rajasthan v. Bhera, 1997 Cr LJ 1237(Raj) . 93 Omprakash Shankarlal Sharma v. State of Maharashtra, 1993 Cr LJ 3175 (para 4) (Bom). 94 State of Rajasthan v. Ani, AIR 1997 SC 1023 : 1997 Cr LJ 1529, following Ram Chander v. State of Haryana, AIR 1981 SC 1036 : 1081 Cr LJ 609. 95 State of Rajasthan v. Ani, AIR 1997 SC 1023 : 1997 Cr LJ 1529, following Chander v. State of Haryana, AIR 1981 SC 1036 : 1981 Cr LJ 609. 96 Popathal Jethabhai Shah v. State of Maharashtra, 2007 CrLJ 605(NOC) (Bom) : 2007 (4) AIR Bom R 67.

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4. ABOUT ANY FACT RELEVANT OR IRRELEVANT The Calcutta High Court observed that, while theoretically, the powers of the judge are limitless and unfettered, certain principles have to be recognised, which he must follow as to the manner in which he exercises the power. It need hardly be pointed out that he must not take sides, but he must not also "descend into the arena" and show the zeal of a combatant. If he does so, and questions witnesses in the spirit of beating them down or encouraging them to give an answer, his action may have an intimidating or inflatory effect upon them, and their evidence may not be the evidence they would have given, if not so intimidated or encouraged... The judge may always intervene, in the course of examination by counsel, to put a question in a clear form, or to have an obscure answer clarified, or to prevent a witness being unfairly misled; but if he does more, and stops counsel again and again to put a long series of his own questions, he makes an effective examination or cross-examination impossible and diverts the trial from its natural course." 97 The judge should exercise powers under Section 165 and put relevant questions for the purpose of ascertaining the truth. No duty is cast on the judge under Section 165 to put questions for the purpose of filling up the lacunae in the matter of examination and/or cross-examination of the witness. 98 97 Sunil Chandra Roy v. State, AIR 1954 Cal 305 (paras 32 & 33) relying on Yuill v. Yuill, (1945) 1 All ER 183; Noor Bux Kazi v. Emperor (1880) 6 Cal 279; Yusuf H. Yusuf H. Abbas v. Bhagwan Dass P. Nangpal, 1949 Bom 346. 98 (1977) 2 Cal 669; Ibrahim Husen v. State, AIR 1969 Goa 68.

5. AT ANY TIME In HALSBURY 4th Ed., Vol. 11, Para: 296, Page: 172 it is stated: "He should not call such a witness after the evidence for the defence is closed, except in a matter "arising ex improviso which no human ingenuity could foresee.1 The trial judge is entitled to ask a witness, at any stage of the proceedings, questions directed to ascertaining whether he has a sense of responsibility and of the obligations imposed by an oath. 2 This section is not intended to be used by the judge during cross-examination of a witness, as it would be embarrassing to the counsel examining a witness, and it may take the lawyer away from the trend of his examination.3 The court has got power to allow further evidence after the closure of the prosecution case; there is no infirmity or illegality in such a procedure. 4 It has been held that a judge had complete discretion, in regard to whether a witness should be recalled and that the court of Criminal Appeal would not interfere unless it was made to appear that injustice had been caused. It was a case where court called further evidence after completion of the defence by the accused.5 Rejection of an application filed by the public prosecutor, to call for a letter lying in the High Court on the ground of delay was held not proper.6 1 R. v. Harris, (1927) 2 KB 587, CCA, applying the test laid down by Tindal CJ in R. v. Frost as reported in (1839) 4 States Tr NS 85 at 386, for evidence in rebuttal (but see R v. Owen, (1952) 2 QB 362 : (1952) 1 All ER 1040, CCA, and para 294, note 4, ante. See also R. v. Howarth, (1918) 13 Cr App Rep 99, CCA (recall after summing up; crossexamination); R. v. Liddle, (1928) 21 Cr App Rep 3, CCA (alibi); R. v. McMahon, (1933) 24 Cr App Rep 95, CCA (defamatory libel; questions put after defence suggesting words complained of were true); R. v. Day, (1940) 1 All ER 402, CCA (forgery; evidence of handwriting expert called after defence; R. v. Davis, (1960) 44 Cr App Rep 235, CCA (communication between clerk and jury); R. v. Cleghom, (1967) 2 QB 584 : (1967) 1 All ER 996, CA; cf. R. v. Tregear, (1967) 1 All ER 989, CA), and only where no injustice or prejudice could be caused to the defendant R. v. Cleghorn, (1967) 2 QB 584, (1967) 1 All ER 996, CA, applying R. v. Harris, (1927) 2 KB 587, CCA). Once the summing up is concluded no further evidence ought to be introduced to the jury, R. v. Owen, (1952) 2 QB 362 : (1952) 1 All ER 1040, CCA; R. v. Wilson, (1957) 41 Cr App Rep 226, CCA; R. v. Gearing, (1968) 1 All ER 579 : (1968) 1 WLR 341 CA; R. v. Corless, (1972) 56 Cr App Rep 341 CA; cf. R. v. Nixon, (1968) 2 All ER 33 : (1968) 1 WLR 577 CA. As to the right of the trial judge to recall a witness for the prosecution after a submission of no case to answer on behalf of the defence, see R. v. Sullivan, (1923) 1 KB 47, CCA; R. v. McKenna, (1956) 40 Cr App Rep 65, CCA (except in very exceptional

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circumstances in favour of the defence) R. v. Sanderson, (1953) 1 All ER 485, (1953) 1 WLR 392, CCA. See also R. v. Nixon, (1968) 2 All ER 33 : (1968) 1 WLR 577 CA (inspection by jury after summing up at request of defence); cf. R. v. Lawrence, (1968) 1 All ER 579 : (1968) 1 WLR 341. CA (inspection by jury after summing up; conviction quashed). 2 R. v. Wilson, (1924) 18 Cr App Rep 108, CCA). 3 Nanjappa Goundan v. Periakkal, AIR 1951 Mad 772. 4 1983 All Cr. LR 21 (P&H). 5 John Mckenna(1956) 40 Cri App. Rep 65. See also Gurudeo Singh v. State of Punjab, (1982) 2 Cr LJ 2211(P&H) . 6 Bhagaban Behara v. Maaeshwar Behara, (1980) 50 Cut LT 443.

6. OF ANY WITNESS In the interest of justice, the court has got power to examine any one as a court witness. 7 The court can, under Section 165, examine the material witnesses left over by the prosecution without assigning any reason, if the court thinks fit that they are material witnesses who can throw light in the interest of justice.8 Lord ESHERobserved: "If there be a person whom neither party to an act ion chooses to call as a witness, and the judge thinks that the person is able to elucidate the truth, the judge, in my opinion, is entitled to call him; and I cannot agree that such a course has never been taken by a judge before." 9 Under order XVI, Rule 14, C.P.C., if the court thinks it necessary to examine any person, other than a party to the proceeding and a person not named by the party as a witness in the proceeding, it may, of its own motion, summon such person to give evidence or to produce any document in his possession. Order X, Rule 2, C.P.C., enables the court to examine any party appearing in person, or present in court, or any person who will be able to answer any material question relating to the suit. Order X, Rule 4, C.P.C. enables the court to direct any party to appear in person to answer any material question relating to the suit. UnderSection 540Cr. P.C. (old) corresponding toSection 311of Cr. P.C. of 1973, the court has got the power to summon any witness after the close of the proceedings in a criminal case, in the interest of justice. This section also enables the court to order the production of any document, or to put any question at any time during the proceeding, in order to discover, or to obtain proper proof of, relevant facts. The above powers given to the court should not be exercised to save the parties from trouble and expense.10 7 Jamatraj Kewalji Gavani v. State of Maharashtra, AIR 1968 SC 178. 8 Habeeb Mohammad v. State of Hyderabad, AIR 1954 SC 51. 9 Coulson v. Disborough, (1894) 2 QB 316, 318. 10 In re K.V.R.S. Mani,AIR 1951 Mad 707.

7. MAY ORDER THE PRODUCTION OF ANY DOCUMENT OR THING The power of the Court to direct production of any document under this section is subject to the proviso at the beginning of that section that the direction must be "in order to discover or obtain proper proof of relevant facts." This section empowers the court to order production of any document or thing, if it considers necessary.11 It was held, that for fixation of liability for the accident and the claim for the compensation, when parties did not produce the required material, the court under Section 165, should get at the evidence by calling for documents, or should give further opportunity to the parties to produce necessary evidence.12Section 60 states that, if oral evidence refers to the existence or condition of any

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material thing, other than a document, the court may, if it thinks fit, require the production of such a material thing for its inspection.13 But, under the second proviso, the court has no power to compel the production of any document, for which privilege is claimed as contained in Sections 121 to 131 of the Evidence Act. While conducting the trial, the Court is not required to sit as a silent spectator or umpire but to take act ive part well within the boundaries of law. Where important documents are not filed by the prosecution alongwith the charge sheet, for the just decision of the case, the Court has ample power to direct the prosecution to produce and prove those documents, under Section 165 of the Evidence Act. 14 11 Ghurey Lal v. State, AIR 1965 All 206; 1964 Mad WN 356. 12 Rajeswari v. Hotel Imperiol, AIR 1989 Mad 34. 13 Vide commentary under the proviso 2 of Section 60. 14 Raju v. State of M.P., 2002 CrLJ 2367, 2374 (para 29) (MP) : 2002 (3) MPLJ 277 : 2002 (1) DMC 655 : 2002 (2) Cur CrR 320 : 2002 CrLR (SC&MP) 168.

8. PARTIES NOT ENTITLED TO CROSS-EXAMINE A COURT WITNESS WITHOUT LEAVE OF THE COURT If a witness called by the Court gives evidence against the complainant, he should be allowed an opportunity to cross-examine. The right to cross-examine a witness who is called by a Court arises not under the provisions of Section 311 , CrPC , but under the Evidence Act, 1872 which gives a party the right to cross-examine a witness who is not his own witness. Since a witness summoned by the Court could not be termed a witness of any particular party, the Court should give the right of crossexamination to the complainant.15 When the court examines a person as a court witness under Section 165, the parties have no right to cross-examine him except with the permission of the court; no doubt, the discretion will have to be exercised judicially, and ordinarily the judge would give the requisite permission, if the answers given are adverse to the party who seeks the said permission. 16 Cross-examination of a court witness can be permitted if the answers given by a witness in such examination are adverse to the party. 17 If what the witness has said in answer to the questions put to him by the Judge is adverse to either of the parties, the Judge ought to allow the witness to be cross-examined upon his answers. A general fishing crossexamination ought not to be permitted.18 The accused should be given an opportunity to crossexamine a witness on the answers to questions put by the Court. 19 The last part of this section says that, without the leave of the court, one cannot cross-examine any witness upon any answer given in reply to any question put by the court. This is to be considered only in cases when the court puts questions during the examination of a witness in the witness box. So far as any person summoned by the court and examined is concerned, there is nothing in the section which would debar the party from proceeding with the cross-examination of the witness summoned by the court.20 The granting of permission for examining the witness on the answers given to the questions put by the court would arise when a party produces a witness, and such permission would ordinarily be granted by the Court.21 "When the counsel for the prisoner has examined or declined to cross-examine a witness, and the Court afterwards, of its own motion, examines him, the witness cannot then, without the permission of the Court, be subjected to cross-examination. When after the examination of a witness by the complainant and the defendant, the Court takes him in hand, he is put under special pressure as the Judge is empowered to ask any question he pleases, in any form about any fact relevant or irrelevant...and he is, therefore, at the same time placed under the special protection of the Court, which may, at its discretion, allow a party to cross-examine him, but this cannot be asked for as a matter of right. This principle applies equally whether it is intended to direct the examination to the

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witness's statements of fact, or to circumstances touching his credibility, for any question meant to impair his credit tends (or is so designed) to get rid of the effect of all his answers, and of each of them just as much as one that may bring out an inconsistency or contradiction. It is then a crossexamination upon answers upon every answer given to the Court, and is subject to the Court's control."22 It is entirely in the discretion of the court to allow cross-examination of a court witness to whom questions are put under Section 165.23 Where a witness was called by the court, after the close of the case in exercise of the power under Section 540,(old) Cr. P.C. (nowSection 311), it was held that both parties had a right to cross-examine him freely.24 15 Zahira Habibullah Sheikh (5) v. State of Gujarat, (2006) 3 SCC 374, 393 (para 29) : AIR 2006 SC 1367, relying on Jamatraj Kewalji Govani v. State of Maharashtra, (1967) 3 SCR 415 : AIR 1968 SC 178. 16 In re Mukhesh Ramchandra Reddy,AIR 1958 AP 165; R. v. Sakharam Mukundji, 11 BHCR 166; Gopal Lall v. Manik, (1897) 24 Cal 288. 17 1983 All Cr. LR 15 (P&H). 18 Coulson v. Disborough, (1894) 2 QB 316. 19 In the matter of the R v. Girish Chunder Talukdar, (1879) 5 Cal 614; Mohendra Nath Das Gupta v. Emperor, (1902) 29 Cal 387. 20 Gopal Lall v. Manicklall, ILR 24 Cal 288; R v. Girish Chander Talukdar, (1897) 5 Cal 614. 21 In re Mukhesh Ramachandra Reddy,AIR 1958 AP 165. 22 R v. Sakharam Mukundji, (1874) 11 BHC 166, 168. 23 Dwarka Dass v. State of J&K, 1979 Cr LJ 550(J&K) . 24 R. v. Pith, 47 All 147.

9. JUDGEMENT MUST BE BASED ON RELEVANT AND PROVED FACTS [PROVISO - I] This proviso says that the judgement must be based upon facts declared by this Act to be relevant (Ss. 5-55) and duly proved (Ss. 56-100). The Privy Council held that, under the Evidence Act before the facts can be treated as relevant under some specific provisions of the Act, they must also be proved as laid down in the Act; facts which are not properly proved cannot be considered by the judge and cannot form the basis of a judgement. 25 It is only those facts which are declared to be relevant and duly proved, which can be the basis of a judgment as provided by this section.26 It would be intolerable that the Court should decide rights upon suspicion unsupported by testimony.27Consent of the parties, admitting certain evidence cannot form the basis of a judgment, as it cannot take the place of determination of the facts by the Evidence Act . 28 However, it was held that when the parties consented to the admission of the evidence, it can form the basis of the judgment, and it is not vitiated even if the conditions prescribed in Section 33 of the Act were not complied with.29 When evidence was admitted which was inadmissible per se, even though there was omission to object to the admissibility, it cannot form the basis of the judgment. 30 The omission to object to the admission of irrelevant evidence cannot possibly make it relevant, and such irrelevant evidence cannot form the basis of a judgment.31

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25 Shris Chandra Nandy v. Rakhalannada, AIR 1941 PC 16; Miyana Hasan .4bdulla v. State of Gujarath, AIR 1962 Guj 214; Baldeo Singh v. Sheoraj Kueri, AIR 1920 Pat 116; Modi Nathubhai v. Chhotubhai Manibhai, AIR 1962 Guj 68. 26 Miyana Hasan .4bdulla v. State of Gujarat, AIR 1962 Guj 214. 27 Sreemutty Mohun Bibee v. Sharat Chander Mitter, (1897) 2 CWN 18, 27. 28 Ponnuswami Pillai v. Sihgaram Pillai, AIR 1919 Mad 848. 29 Vijayasinghji v. Kashikchandra, (1978) 19 Guj LR 980; See also Sri Rajah Prakasarayanim Garu v. Venkatrao, (1916) 38 Mad 160. 30 Moksh Builders and Financiers Ltd. v. Union of India, (1968) 70 Punj LR 71(D) . 31 Miller v. Madhodas, ILR 19 All 76(PC) ; Nanakchand v. Mian Mohammad Shahbaz Khan, AIR 1936 Lah 114.

10. WITNESS SHALL NOT BE COMPELLED TO ANSWER ANY QUESTION OR TO PRODUCE ANY DOCUMENT IN CERTAIN CASES [PROVISO - II] This proviso states that this section does not empower any judge to compel any witness to answer any question, or to produce any document, if such witness is entitled to refuse to answer, or to produce the document by claiming privilege; he shall also not ask any improper questions as contained in Sections 148 and 149 of this Act .32 The proviso subjects the judge to the provisions contained in Ss. 121-131, S. 148and S. 149. The judge has the power of asking irrelevant questions to a witness, if he does so in order to obtain proof of relevant facts, but if he asks questions with a view to criminal proceedings being taken against the witness, the witness is not bound to answer them, and cannot be punished for not answering them under Section 179 , Indian Penal Code .33 A witness should not be coerced to answer a question. 34 Where a judge rebuked a witness and threatened him with prosecution for perjury if he changed his statement, the Supreme Court held that the proceeding was vitiated. 35 Where in a case of murder the wife of deceased, an eye-witness avoided and evaded questions put to her in cross-examination by the defence counsel instead of being given several opportunities to understand the questions and situation and when Court intervened and put the same questions she replied every time in her answer that 'I don't know' (MUJHE NAHIN MALUM), it was held that the testimony of such a witness was liable to be discarded as she did not put herself to be tested according to law as valuable right of the accused to cross-examine the witness, was frustrated by giving evasive reply and avoiding the questions.36 Where privilege was claimed for production of the document, it was held by the Full Bench of Gauhati High Court, in Tridib Sharma v. State of Assam 37, that only such documents, statements, or parts thereof as are necessary for the ends of justice, be allowed to be disclosed. However, the party is not allowed to use the disclosed documents, statements or part thereof out of context or divulge them for any other purpose. 32 Municipal Corporation of Greater Bombay v. Lala Pancham, AIR 1965 SC 1008. 33 Queen-Empress v. Hari Lakshman, (1885) 10 Bom 185. 34 Queen-Empress v. Ishri Singh, (1886) 8 All 672, 675. See also State of Gujarat v. Rajubhai Dhamirbhai Bariya, 2004 CrLJ 771, 784 (para 16) (Guj) : 2004 (1) Guj LR 404 : (2004) 15 Ind LD 450 : 2004 (1) Guj LH 262. 35 Ram Chander v. Haryana, AIR 1981 SC 1036. 36 Lalu v. State of M.P., 2003 CrLJ 1992, 1994 (paras 9 to 12) : 2003 (9) All Ind Cas 753 : 2003 CrLR (SC&MP) MP 3160 : 2003 (2) MPHT 345 : 2003 (1) MPLJ 606. The Court relied on Ram Kumar v. Emperor, AIR 1937 Oudh 168 and State of Punjab v. Baldev Singh, AIR 1991 SC 31 : 1990 CrLJ 2604. 37 (1985) 2 Gau LR 229 (FB).

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11. COMPLEMENTARY TO S. 311 , The power of the Court under Section 165 of the Evidence Act is in a way complementary to its power under Section 311 , CrPC , whose first part gives discretion to the Court to examine the witness at any stage and the second part, mandatory in nature, compels the Court to examine a witness, if his evidence appears to be essential to the just decision of the case. Of course the wide discretion is to be exercised with caution.38 38 Zahira Habibulla H. Sheikh v. State of Gujarat, AIR 2004 SC 3114 (para 47) : (2004) 4 SCC 158. See also Sree Venkatadeswara Enterprises v. G. Rajasekharan Nair, 2007 CrLJ 1626, 1628-29 (para 5) (Ker); Himanshu Singh Sabharwal v. State of M.P., AIR 2008 SC 1943, 1950 (para 17) : (2008) 3 SCC 602.

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Ratanlal & Dhirajlal: Law of Evidence, Updated 23rd Edition/THE INDIAN EVIDENCE ACT (ACT 1 OF 1872)/PART III PRODUCTION AND EFFECT OF EVIDENCE/CHAPTER X OF THE EXAMINATION OF WITNESSES/S. 166.

CHAPTER X OF THE EXAMINATION OF WITNESSES S. 166. Power of jury or Assessors to put questions. In cases tried by jury or with assessors, the jury or assessors may put any questions to the witnesses, through or by leave of the Judge, which the Judge himself might put and which he considers proper. 1. PRINCIPLE AND SCOPE

This section has lost its importance as trial by jury or assessors has been abolished in this country.

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Ratanlal & Dhirajlal: Law of Evidence, Updated 23rd Edition/THE INDIAN EVIDENCE ACT (ACT 1 OF 1872)/PART III PRODUCTION AND EFFECT OF EVIDENCE/CHAPTER XI OF IMPROPER ADMISSION AND REJECTION OF EVIDENCE/S. 167.

CHAPTER XI OF IMPROPER ADMISSION AND REJECTION OF EVIDENCE S. 167. No new trial for improper admission or rejection of evidence. The improper admission or rejection of evidence shall not be ground of itself for a new trial or reversal of any decision in any case, if it shall appear to the Court before which such objection is raised that, independently of the evidence objected to and admitted, there was sufficient evidence to justify the decision, or that, if the rejected evidence had been received, it ought not to have varied the decision. 1. PRINCIPLE AND SCOPE

Principle.--The improper (a) admission, or (b) rejection of evidence is no ground for a new trial, or reversal, of any decision, if, 5i)  

in the case of improper admission--

there is sufficient evidence to justify the decision independently of the evidence objected to and admitted; or 3ii)   in the case of improper rejection-the decision could not be varied, if the rejected evidence had been received. In absence of any material before the Court for exercising judge's power to put question under Section 165 and improper admission and rejection of the evidence by itself would not be a ground for a new trial. 1 Object. --The object of the section is that the Court of appeal or revision should not disturb a decision on the ground of improper admission or rejection of evidence if in spite of such evidence, there are sufficient materials in the case to justify the decision. 2 In other words, technical objections will not be allowed to prevail, where substantial justice appears to have been done. The main function of the court is to do substantial justice between the parties and see if there is sufficient evidence to justify its conclusion. If the evidence, after omitting such portion of the evidence which should not have been admitted, is sufficient to decide a case, then according to this section, such decision shall not be reversed nor shall a new trial ordered. 3 The Privy Council held that it was the duty of their Lordships who were judges of the fact in such a case as this, to consider whether, throwing aside such evidence, there still remained sufficient evidence to support the decree. 4 Where there is evidence to convict the accused, besides other evidence of doubtful credibility, or improperly admitted evidence, the High Court, is competent and is entitled to convict the accused, even in an appeal against acquittal. 5 The decision on inadmissible confession would not be interfered with, if other evidence on record is sufficient to sustain conviction, after excluding the inadmissible confession. 6 When no prejudice is caused to the party by reason of admission of inadmissible evidence and the case can be decided on the rest of the material on record the decision need not be set aside or the case need not be remanded for fresh trial or rehearing. 7

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It was held by the Supreme Court that as regards the rejected evidence, the question under Section 167, is not so much whether the evidence rejected would not have been accepted against the other testimony on record; it is whether that evidence "ought not to have varied the decision". Where it is clear from the record that the prosecution, though it had cited certain person as a witness, was not very keen to examine him and when that person objected to giving evidence, the prosecution dropped him, it is not a case in which evidence can be said to have been rejected by the court within Section 167; in such a case, the prosecution does not in fact tender the person as a witness. 8 The appellate Court is entitled to examine the evidence for itself and to substitute its own verdict for the verdict of the jury if on examining the record for itself it comes to the conclusion that the verdict of the jury was erroneous or that there has been a failure of justice in the sense that a guilty man has been acquitted or an innocent man has been convicted. 9 Statement under Section 313of Cr.P.C. cannot be taken as evidence, hence Section 167 of Evidence Act was not attracted.10 1 For Statement of Objects and Reason, see Gaz. of India, 1868, p. 1574. 1 State of Gujarat v. Rajubhai Dhamirbhai Bariya, 2004 CrLJ 771, 784 (para 16) (Guj) : 2004 (1) Guj LR 404 : (2004) 15 Ind LD 450 : 2004 (1) Guj LH 262. 2 Mohur Singh v. Ghuriba, (1870) 6 Beng LR 495, 499 PC 15 WR (PC) 8; Dwijesh Chandra Roy Choudari v. Naresh Chandra Gupta, (1946) 1 Cal 149. 3 Goshain Tota v. Ruckminee Bullab, 13 MIA 77 PC. 4 Mohur Singh v. Ghuriba, 6 BLR 495. See also K. Sarkara Chenna v. K. Manappa, AIR 1925 Mad 245; Maharaja Koowar v. Nundlal, 8 MIA 199; Bunseedhur v. Govt of Bengal, 9 BLR 341 PC; Goshain Tota v. Ruckminee Bullub, 13 MIA 77; Womma Kant v. Ganga Narain, (1973) 20 WR 384. 5 Dhondu v. R, 1950 PC 30. 6 Nika Ram v. State of H.P., AIR 1972 SC 2077; Jago v. State of Rajastan, 1953 All 406 (inadmissible evidence), Abdul Rahim v. R, AIR 1946 PC 82; State v. Ram Prasad Singh, AIR 1953 Pat 354; In re, Moorthy, 1956 Mad 536; Ram Kishan v. State of Bombay, AIR 1955 SC 104; Amalesh Chandra v. State, AIR 1952 Cal 481; Kasim Ali v. King, 1950 Assam 75; Sudhindra Nath v. State, AIR 1953 Cal 339; Sunil Chandra Roy v. State, AIR 1954 Cal 305; Danda Pani Das v. Mohan Nayak, AIR 1954 Ori 67. 7 Jagabandhu Sahu v. Girdhari Swain, (1970) 36 Cut LT 1194. 8 Narayan v. State of Punjab, AIR 1959 SC 484. 9 Ramkishan v. State of Bombay, AIR 1955 SC 104. 10 Ranjit Mondal & Sajal Barui v. State, 1997 Cr LJ 1586(Cal) . The Court referred to State v. Sukhdev, AIR 1992 SC 2100 : 1992 Cr LJ 3454.

2. DECISION The word 'decision' is more generally used as applicable to civil proceedings, but it is by no means inappropriate to criminal cases; and if it was the intention of the Legislature to use an expression which would apply equally to civil as to criminal proceedings, there is probably no other word which would have answered their purpose better. 11 11 Queen v. Hurribole Chunder, (1876) 1 Cal 207.

3. IN ANY CASE These words are very wide and include criminal trials by jury.

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When a part of the evidence which has been allowed to go to the jury is found to be irrelevant and inadmissible, it is open to the High Court in appeal either to uphold the verdict upon the remaining evidence on the record under this section or to quash the verdict and order a retrial. 13 12 Queen Emperor v. Ramachandra Govind Harshe, (1895) 19 Bom 749, 762. 13 Queen-Empress v. Ramachandra Govind Harshe, (1895) 19 Bom 749 CONTRA, Wafadar Khan v. Queen Empresses, (1894) 21 Cal 955; Dal Singh v. King Emperor, (1917) 19 Bom LR 510 44 IA 137: ILR 44 Cal 876; Ramesh Chandra Dass v. Emperor, (1919) 46 Cal 895.

4. CIVIL In the case of first appeals the provisions of this section have to be read with Section 99 of the Civil Procedure Code (Act V of 1908) which provides "No decree shall be reversed or substantially varied nor shall any case be remanded, in appeal on account of .. any error, defect or irregularity in any proceeding in the suit not affecting the merits of the case ..." see also O. XLI, Rr. 27 to 29. In second appeals, one of the grounds justifying the appeal is "a substantial error or defect in the procedure... which may possibly have produced error or defect in the decision of the case upon the merits [S. 100(1)(c) of the Civil Procedure Code of 1908]. Where a document was admitted by the Court with direction to the party to pay the necessary amount of the stamp duty and was acted upon while pronouncing judgment, the said judgment could not be challenged in appeal in view of this section. 14 14 Babulal v. Mohammad Sharif, AIR 1996 MP 147 (para 8).

5. LETTERS PATENT, CLAUSE 26 The provisions of this section apply to the High Court when act ing under Clause 26 of the Letters patent. 15 15 Queen v. Hurribole Chunder Ghose, (1876) 1 Cal 207; Imperatrix v. Pitamber Jina, ILR (1877) 2 Bom61; Emperor v. Narayan, (1907) 9 Bom LR 789, 32 Bom 111, FB. See Emperor v. Panchu Das, (1920) 47 Cal 671(FB) .

6. CRIMINAL In Criminal Cases also the Legislature has provided a similar safeguard "No finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered... on appeal or revision, on account of any misdirection in any charge to a jury unless such error omission, irregularity, or misdirection has in fact occasioned a failure of justice (S. 465 of the Criminal Procedure Code ).

7. THE COURT BEFORE WHICH SUCH OBJECTION IS RAISED The Court which is to decide upon the sufficiency of the evidence to support the conviction is the court of review or the appellate court, 16 but not the Court below. 17 Where the first Court improperly admits evidence the High Court has power to interfere and remand the case for a new trial. 18 The Omission to receive an important document, 19 or to examine a material witness, 20 justifies a reversal of the decision. Where admission of inadmissible evidence had seriously influenced the minds of the jury or the court in giving the verdict, the High Court has to set aside the verdict and conviction. 21 Where the findings of the lower appellate court were based on irrelevant evidence and also on relevant evidence it is not possible to say whether conclusions were based upon consideration of the relevant evidence alone and the case has to be remanded for retrial in such cases. The Court can interfere where the trial court refused to receive evidence which ought to have

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been admitted. 22 Where the court acts on material, partly relevant and partly irrelevant, it is not possible to say to what extent the mind of the Court was affected by the irrelevant material in giving a finding, such a finding is vitiated because of the use of inadmissible material. 23 Disregarding of a Commissioners report constitutes no error or defect in procedure, nor does it affect, the merits of the case within the meaning of Section 100(1)(c), C.P.C. to justify interference in second appeal, if there was other evidence on record, sufficient for the disposal of the case and there was proper exercise of jurisdiction by the court.24 Even in a second appeal, the High Court has to see whether there is other evidence justifying the decision, after excluding the irrelevant evidence admitted in the trial Court. 25 Section 167 bars a fresh trial, unless it could be established that there would have been a material difference in the result if the evidence allegedly rejected improperly had been allowed to be produced. 26 Where the court examined the accused as a court witness against his protest, to prove a fact which prosecution was bound to prove, it was held that the act of the Magistrate was in direct contravention of Section 342A,(old) Cr.P.C. [nowSection 315(1)] and the question of correctness of the conviction should be examined by eschewing the evidence of the accused, and there was no ground to quash the entire proceedings in view of Section 167 Evidence Act. 27 Mere exclusion of evidence by the trial court would not be a sufficient ground for reversing the decree, unless the appellate Court comes to the conclusion, that if the evidence which was refused had been received, it would have varied the decision. 28 Where the Court refused to allow the use of confessional statement to contradict or corroborate the evidence of the witness approver, it was held that when there was other evidence corroborating the testimony of the approver and on facts, there was no prejudice to the accused, the order of refusal would not be interfered with in revision. 29 In a case of departmental enquiry under the Central Reserve Police Rules 1965 in respect of unauthorised overstay after leave, the delinquent did not deny the allegation of overstay and did not produce evidence to show that his overstay was for reasons beyond his control, which burden he had to discharge. But, he contended that he was not given an opportunity to cross-examine the officer who made a report against him behind his back. It was held that the enquiry would not be said to be vitiated, for non-cross examination of the officer, as no prejudice was shown to have been caused by such non cross-examination. 30 Where statement of two witnesses had been wrongly admitted under Section 288Cr.P.C. (old), it was held that it could not affect the verdict, as other evidence of the eye-witness if believed, would have sustained the charge. Hence the objection as to improper admission of that evidence was of no avail. 31 It is not in every case in which something extraneous has been taken into consideration that the High Court would upset a finding. Where it is patently clear that there could have been no other decision, taking into account the extraneous circumstances alone would not vitiate the order. 32 Where the Magistrate was not satisfied with the voluntariness of the confession, and the accused did not understand language in which the questions were put to him or with the answers were attributed to him such a confession must be excluded from the evidence. But if the exclusion of the confession did not affect the value of the circumstantial evidence against the accused the conviction can be up held. 33 Where there was improper admission or rejection of evidence but even if it is excluded, if the other independent evidence is sufficient the decision need not be varied. 34 When the court took into consideration all documentary evidence before recording a finding, the finding would not be vitiated by reason of the fact that one of such documents was not duly proved.

35

The accused was originally charged for certain offences and also for the offence of waging war against the State which was later given up by the prosecution. During evidence some evidence was given to prove earlier incidents to bring out the political views of the accused. It was held that the evidence could not have prejudiced the accused, since the trial was concerned only with the criminal act s done by the accused on the date of occurrence. In such cases unnecessary evidence can be excluded. 36 The Lower Court upheld the jurisdiction of the Municipality to levy cart tax by invoking a presumption under Section 99(4) of the Madras District Municipality Act. It was held that the presumption under Section 99(4) was confined to carriage and had no application to a cart but as the presumption was not the only basis and there was evidence of facts and circumstances to justify its jurisdiction to levy

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the tax, the decision of the lower court cold not be interfered with (1961 Mad LJ (Cri) 306. When the court refused to summon a defence witness, it was not a case of rejection of proper evidence and so Section 167 is not attracted. (1976 Chand LR (Cri) : 1977 Sim LC 145(HP) ...). The reception of inadmissible evidence is less injurious than the rejection of admissible evidence, because, in the former case in arriving at the decision, the evidence wrongly admitted can well be excluded from consideration whereas the evidence wrongly excluded can only be brought on record by having recourse to further proceeding, necessitating thereby the prolongation of the trial, and possible harassment to the persons concerned. 37 It is the duty of the court to apply its mind to the question whether after discarding the evidence improperly admitted, there is left sufficient evidence to justify the conviction. 38 16 P ER W ESTROPP , CJ, in Imperatrix v. Pitambar Jina, (1877) 2 Bom 61, 65. 17 Queen v. Hurribole Chunder Ghose, (1876) 1 Cal 207, 217. 18 Palakdhari Raj v. Manners, (1895) 23 Cal 179. 19 Devidas Jagjivan v. Pirjada Begm, (1884) 8 Bombay 377; Talwar Singh v. Bhagavan Dass, (1907) 12 CWN 312 : 8 CLJ 147. 20 Moni Lal Bandhopadhyaya v. Khiroda Dass, ILR 1893 20 Cal 740. 21 Gokul Chandra Chatterjee v. State, AIR 1950 Cal 306; Amalesh Chandra v. State, AIR 1952 Cal 481; Kashmiri Ali v. King, (1950) Assam 75. 22 Palakdhari Roy v. Manners, (1895) 23 Cal 179. 23 Kalappa Saidappa v. Bhima Govind, AIR (1961) Mys 160. 24 Bibhuti Bhushan Bank v. Sadhan Chandra, AIR (1965) Cal 199. 25 Gajadhar v. Nanda Lal, AIR 1934 Pat 55; Hari Ahir v. Sat Sanghat Chacha, 1934 Pat 617. 26 Jasoda Haldar v. Sailendra Nath Somanatha, AIR 1957 Cal 372. 27 John v. Shertally Municipality, AIR (1959) Ker 323 : ILR 1950 Ker 150. 28 De Souza v. Pestanji, ILR 8 Bom 408. 29 Birendra Chandra De v. State, AIR (1957) Assam 168. 30 Shyam Singh v. D.I.G. Central Reserve Police, AIR (1965) Raj 140. 31 Chhotka v. State, AIR 1958 Cal 482. 32 Madanlal Chawla v. H.B.T. Institute, Kanpur, AIR 1962 All 166. 33 1957 Jab LR 460. 34 Gopi Harachandan v. Rama Krishna Paltan Singh, ILR 1967 Cut 862 : 33 Cut LT 1098. 35 Sukh Ram v. Ram Swarup, (1969) All LJ 129. 36 Kandan Narayanan v. State, (1952) Tra/co 459. 37 State v. Mysore v. Sampangramiah, AIR 1953 Mys 80; In re S.N. Appannaiengar, 9 Mys LJ 69. 38 Bihari v. State, (1956) All LJ 182.

8. OMISSION TO CONSIDER RELEVANT EVIDENCE

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Where a decision was given without considering certain recitals in a document, it was held that the decision is not vitiated if it would not have been different even if those recitals had been considered by the court. 39 Where the finding is one of fact, and it is based on the trivial error of record but the rest of the material on record is sufficient to justify that finding, it cannot be said that the finding is vitiated. 40 Where the court excluded the main evidence in support of a party's case, and there was no evidence apart from the rejected evidence the court would be justified in ordering a fresh hearing of the case. 41 39 Gangadhar Mohanti v. Priyanath Das, (1963) 29 Cut LT 357. 40 Gangadhar Mahanti v. Priyanath Das, (1963) 29 Cut LT 357. 41 Channoo Mahto v. Jang Behadur Singh, AIR 1957 Pat 293.